134 P. 542 | Idaho | 1913
Lead Opinion
This is an original proceeding in this court whereby application is made by Independent Highway District No. 2 of Ada county for a writ of prohibition, prohibiting the board of county commissioners of Ada county from issuing and selling negotiable, interest-bearing coupon bonds of said county in the sum of $200,000, which bonds were
It is alleged in the application for said writ that the plaintiff is a highway district in said county, organized and operating under the laws of this state; that on May 26, 1913, said board of county commissioners ordered an election to be held on June 25th for the purpose of determining whether or not said county should issue bonds in the sum of $200,000, the proceeds thereof to be used in the construction, building and repairing of roads and bridges within said county; the said election was held on June 25th, and the bond issue was carried by the required two-thirds vote; that said board of county commissioners are now proceeding without authority of law and in excess of their jurisdiction, and have given notice that said bonds will be sold on July 24, 1913, and that they will sell and expend the proceeds thereof contrary to law unless restrained by a writ of prohibition; that said bonds, if sold, will be a lien upon the taxable property within said highway district and the property owners therein will be assessed according to the value of their property for the payment of interest on said bonds, and for providing a sinking fund to redeem them; that the alleged purpose for which the bonds are to be issued is indefinite and uncertain and not as required by law, and that it cannot be determined therefrom whether the roads and bridges will be of benefit to all parts of said county, and that the applicant believes that all of the proceeds of said bonds will be used outside of said highway district and not for the benefit of the residents of said district; that the defendants have not made any levy for either road or bridge fund for the year 1913, and it cannot be determined whether or not the indebtedness or liability for the eonstruetion or repair of either roads or bridges for the year will exceed the income or revenue of the county for the year, but that plaintiff is informed that if said bonds are sold, defendants will not make any levy for general road purposes, but will issue and sell said bonds and use the proceeds thereof, if not restrained by this court, in lieu of the customary levy; that the proceeds of the bond issue if sold will be used in that part
The answer of said board admits many of the allegations of the application or complaint, as to what the board has done and intends to do regarding the alleged bond issue, but denies that said board acted without the law and beyond the scope of their jurisdiction in doing the acts set forth in said application, and denies that the notice of election was indefinite and uncertain, and denies that the proposed expenditure will not benefit the residents and taxpayers in said highway district; denies that the residents and taxpayers of said district will be unlawfully compelled to pay taxes for the interest and sinking fund on said bonds, and denies that the residents of said highway district will suffer unjust taxation if said bonds are sold, and denies that the highway district will be compelled unjustly or unlawfully to contribute to the construction, maintenance and repair of the roads and bridges outside of their district. To said answer is attached the complete proceedings of -the board of county commissioners in connection with the proposed bond issue. '
The case was presented upon the issues thus made, it being conceded that only questions of law were involved in the ease. The plaintiff contends that the proposed bond issue will be illegal and void, and should be enjoined for the following reasons: 1. That notice calling for the election does not contain an adequate statement of the purpose for which the bonds are to be issued; 2. The purpose for which the election is called is a double one; 3. The proposed bond issue is unauthorized by the constitution and laws of the state; 4. The bonds, if issued as proposed, will result in double taxation in violation of the constitution.
Counsel for plaintiff contends, first, that the notice calling the election does not contain an adequate statement of the
“Notice is hereby given that on Wednesday the 25th day of June, 1913, an election shall be held according to law for the purpose of determining whether or not the said Ada County, State of Idaho, shall issue bonds in the sum of Two Hundred Thousand Dollars, the proceeds thereof to be used in the construction, building and repair of roads and bridges within said Ada County, State of Idaho. ’ ’
It is contended that such notice ought to have specified the particular roads or bridges that were to be constructed, built and repaired; that that ought to be done so that the voter might determine whether or not the proposed bonds were such as the statute authorized, and so that the voter could intelligently approve or disapprove the plans of the commissioners, that there might be a reasonable limit placed upon the commissioners in spending the people’s money.
The provisions of sec. 1962, Rev. Codes, authorize the issuing of bonds by the county under certain conditions and for the following purposes: “For purchasing a site and erecting a courthouse and jail or a jail thereon, or for the construction or repair of roads or bridges,” and for other purposes which it is not necessary to state here. Sec. 1968 directs that if the question of bonding the county is submitted to the voters, the board shall cause notice of the intention to hold such election to be given and such notice shall recite, among other things, regarding the election, “the purpose thereof.” The notice of said election directs that such election shall be held for the purpose of determining whether bonds in the sum above stated shall be issued and the “proceeds thereof to be used in the construction, building and repair of roads and bridges within said county. ’ ’ The people, then, of Ada county were fully apprised by said notice that they were called upon to vote as to whether or not bonds should be issued in the sum
In support of the contention that that notice is void for the reason that it did not specify the particular roads or bridges to be repaired and constructed and the amount of money to be used for roads and the amount to be used on bridges, counsel cites McMahon v. Board of Supervisors, 46 Cal. 214. The statute of California under which that decision was rendered was very different from the statute here under consideration. (See Act 1870, Cal. Stats. 1869-70, p. 730.) That statute required to be stated in the notice the specific object for which the money raised by the commissioners on such bonds was to be expended and the amount required therefor. Under that statute the California court held that the specific object must be stated, and under the construction placed upon that statute by the California court, the notice was required to specify and set forth the particular roads and bridges intended to be constructed and repaired. “Specify” is defined to mean: to mention specifically; to state in full and explicit terms; to point out; to particularize, or to designate by words one thing from another.
Counsel also cites the case of State ex rel. Horsley v. Carbon County, 38 Utah, 563, 114 Pac. 522. The statutes of Utah under which that decision was rendered provide that “The board shall by order specify the particular purpose for which the indebtedness is to be created,” etc. The statute of this state under which said notice was given and said election was held provides that the purpose only need be stated in the notice, for which the proceeds of the bond issue shall be used, and does not require that the notice shall specify or set forth the particular roads or bridges intended to be constructed or repaired, or the portion or part of the proceeds of the sale of such bond issue that shall be used in the repair and construction of bridges separate from the portion to be used in the repair or construction of roads. Under the statute the board of
In Potter v. Lainhart, 44 Fla. 647, 83 So. 251, the question of the sufficiency of the notice calling for an election for an issue of bonds was raised under sec. 591 of the Rev. Stats, of Florida, as amended in 1889 by chap. 4711, providing that, “Whenever the board of county commissioners of any county in this state shall deem it expedient, or to the best interest of such county, to issue county bonds for their county, for the purpose of constructing paved, macadamized or other hard surfaced highways [building and repairing roads and bridges] In the resolution of the board in that case it was recited that they “deemed it expedient to issue bonds for the purpose of constructing paved, macadamized or other hard surfaced highways, and to erect a courthouse and jail,” and it was resolved by the board that $150,000 was required for such purpose, $50,000 for said buildings and $100,000 for road purposes. That notice was held sufficient. (See Stone v. Gregory, 110 Ky. 492, 61 S. W. 1002.)
In Weston v. Hancock County, 98 Miss. 800, 54 So. 307, notice was given by the board of county commissioners that the election was for the purpose of issuing bonds in the sum of $125,000 for the purpose of working roads and building bridges of the county. The notice was duly given, as required by statute, and the necessary steps taken to perfect the bond issue, and in regard to the purpose for which the bonds were to be used, the court said:
“When the statute speaks of ‘constructing public roads,’ it uses the term in its most comprehensive sense. It does not mean merely the building of roads not before having an existence, but it means the maintenance and betterment of roads*427 already in existence, and for this purpose the bonds of the county may be issued, if authorized by the board and not vetoed by the taxpayers in the method allowed by law.” (See Corker v. Village of Mountainhome, 20 Ida. 32, 116 Pac. 108.)
Our statute provides that bonds may be issued for the construction and repair of roads and bridges, and a notice calling an election which states such purpose is good. Evidently the word “purpose” as used in said sec. 1962, Rev. Codes, and the general bond act (art. 6, chap. 2, tit. 11, Rev. Codes, secs. 1960 to 1972, inclusive), applies only to those purposes set forth in the statute and not to the specific works of construction which may be carried on under one of these main purposes.
By more than a two-thirds vote of the electors of said county at such election, the people decided in favor of the issuance of such bonds for the purpose and in the amount stated in said notice. It is not to be presumed that the board will use the funds arising from the sale of said bonds for any other purpose than for constructing and repairing roads and bridges in said county. If they should undertake to do so, the taxpayer has his remedy.
In Jenkins v. Williams, 14 Cal. App. 89, 111 Pac. 116, a controversy arose over the contention that the commissioners had the right to spend the money in other ways than those specified in the order calling the election. The court there held that the order calling the election controlled, and the money could not be spent except in the manner there specified.
In the case at bar, the money arising from the proceeds of the sale of such bonds can only be expended in the construction and repair of roads and bridges. Under the provisions of sec. 882b (see Sess. Laws 1911, p. 167), the entire jurisdiction of building and repairing of roads and bridges (outside of highway districts and such highways as are under the state highway commission) is given to the respective boards of county commissioners of the several counties in the state, and it is contended in this case that it might be unsafe from the standpoint of public policy to allow the county commissioners to spend the county’s money as in their judgment they see fit. But the legislature in enacting said section 882b expressly
As above stated, the statutes of California differ from ours in regard to the question under consideration, and the California decisions cited by plaintiff are not applicable to this case. Sess. Laws 1907, sec. 4088, p. 382, provides, “The board of supervisors thereof shall by order specify the purpose for which the indebtedness is to be incurred,” while sec. 1968, Rev. Codes of Idaho, reads: “The said notices shall recite the action of the board in deciding to bond the county, the purpose thereof,” etc. The question involved here is not a question of jurisdiction of the board of commissioners being limited, but is a question of the people having the power under proper legislative enactment to express their will and desire in a certain manner. Nowhere in our statute is it made mandatory upon the board to designate the specific purposes for which the proceeds of such bonds shall be used, other than in the construction and repair of roads and bridges generally as distinguished from the construction of courthouses, jails, etc., as provided by said see. 1962.
(2) It is next contended that the notice states a double purpose and for that reason said election was void. Counsel contends that the notice provides that the proceeds are to be used for roads and bridges, and that under the provisions of sec. 896, as amended by Laws of 1911, p. 162, the board of commissioners must each year at the proper time estimate the probable amount of property tax for road purposes and the
In Blaine v. Hamilton, 14 Wash. 353, 116 Pac. 1076, the supreme court of Washington, after stating, “The true criterion is: Are the several parts of the project so related that united they form in fact but one round whole ?’ quotes with approval from Coleman v. Town of Eutaw, 157 Ala. 327, 47 So. 703, as follows:
“But where the purpose evolved in the blending is the product of two of the purposes enumerated in the act for which bonds may be issued, and they might naturally and reasonably be deemed or made a part of one of a more general*430 scheme, we are of the opinion that the act does not inhibit the exercise by the governing body of a discretion to blend into one proposition for submission to the voters such enumerated purposes; for instance, we merely suggest the building of bridges and constructing of streets.”
It was held in State ex rel. Whitmore v. Carbon County, 36 Utah, 394, 104 Pac. 222, that a notice in substantial compliance with the statute is sufficient. It is stated in 15 Cyc., p. 323, that a notice in any form which does not mislead the electors and cause them to lose their votes and which is in general conformity with the statute, will be sufficient.
(3) It is contended that the taxpayers in the highway district will receive no benefit from the bonds, but will be compelled to pay their part of the same with interest. It must be conceded that the bonds are issued for a public purpose. County roads and bridges are undoubtedly improvements in which the entire public is'interested and benefited, although a particular individual may never have occasion to use them. For administrative purposes, so far as the county bonds are concerned, the county is the unit of taxation. The legislature has the undoubted right to establish such taxation districts, and as a rule its discretion in this regard will not be interfered with. Whatever rights the parties to this action have as between themselves as to whether or not they are entitled to contribution from the proceeds of these bonds, is not a material question at this time and has no bearing as to the validity of the bonds. The lack of benefit to a highway district was considered by this court in Reinhart v. Canyon County, 22 Ida. 351, 125 Pac. 791.
The case of Johnson v. Williams, 153 Cal. 368, 95 Pac. 655, discusses quite fully three of the points raised in this case, and among other things, it is said:
“It is undoubtédly within the .power of the legislative department to authorize recourse by a county to its general fund, consisting almost entirely of taxes collected from all parts of the county, for work on its public roads and highways lying outside of the limits of its municipalities within the county, and our statutes show several instances of the exercise of this*431 power, the validity of which has never been challenged..... That section (4088, Pol. Code) provides that any ‘county may incur .... a bonded indebtedness for any purpose for which the board of supervisors are herein authorized to expend the funds of said county, or for the purpose of building or constructing roads, bridges or highways.... We are satisfied that section 4088 of the Political Code authorizes the issuance of the bonds of Sacramento county for the purpose of building or constructing roads, bridges and highways therein.”
Counsel contends under said provisions of sec. 15, art. 7, and sec. 3, art. 8, of the constitution, that the counties are commanded to meet the ordinary and necessary expenses by current tax levy, and that such current tax levy is provided for by secs. 869 and 900, Rev. Codes, and argues that in spite of said constitutional and statutory provisions the county commissioners have admitted by their answer that they do not intend to make a road and bridge levy, but expect to pay for the ordinary and necessary road and bridge work out of the proceeds of said bonds.
Conceding that the board of county commissioners may intend to illegally expend some of the proceeds of said bond issue, that does not make void the issuance of said bonds. The ordinary and usual expense of keeping in repair the roads and bridges of the county cannot legally be paid out of the proceeds of said bond issue, but where a systematic improvement of a road system of a county is undertaken and in the prosecution of that work roads and bridges are repaired and put in good condition under such plan or system, the expense thereof may be paid out of the proceeds of such bond issue.
It is lastly contended that the bond issue as proposed will result in double taxation and that under the provisions of sec. 5, art. 7, of the constitution, that double taxation of property for the same purpose during the same year is prohibited, and the case of Humbird Lumber Co. v. Kootenai Co., 10 Ida. 490, 79 Pac. 396, is cited. We cannot agree with that contention. In our view of the case, the voting and issuance of said bonds would not result in double taxation. If the present method of allowing a county to levy a general road tax which shall
It was said in State v. Board of Commissioners (Ind.), 82 N. E. 482, that “The construction and repair of public highways by the state under any system it may adopt is the exercise of a state function, and is, as was said by Judge Cooley, supra, the exercise of one of the most important functions of government. ’ ’ If the legislature has enacted a law that is unwise or unjust, the remedy must be sought from the legislature and not from the judicial department of the state. As touching upon this, see State v. Wheeler, 141 N. C. 773, 115 Am. St. 700, 5 L. R. A., N. S., 1139, 53 S. E. 358.
In this connection it is proper to state that the legislature has provided a method of paying a portion of the interest on county bonds which would obviate the necessity of making a larger levy to pay interest, this being done by the provisions of the so-called automobile law passed at the 1913 session of the legislature, which law provides that the license tax received from owners of motor cars may be used to pay the interest on county road bonds. This provision may be sufficient to relieve the board as to any levy in connection with the payment of interest, and if the plaintiff highway district is compelled to contribute to the sinking fund of such bonds, this would not be double taxation, as was held in the case of Reinhart v. Canyon Co., 22 Ida. 351, 125 Pac. 791.
We therefore conclude that the board of county commissioners by proper resolution passed May 24, 1913, determined and declared that the public interest and necessity and the good of the county demanded the issue of said bonds for the purpose of bridge and road construction and repair; that it was the purpose of the county commissioners to call a special
Each party to pay its own costs of this suit.
Dissenting Opinion
Dissenting. — I have no doubt of the powers of the commissioners of Ada county to issue bonds for the purpose of building or constructing roads or bridges within the county when so authorized by a two-thirds vote of the qualified electors thereof. The only question to which I shall direct my attention here is the method pursued by the commissioners in bringing this question to a vote. I am fully satisfied that the resolution of the board of commissioners and the notice of election each fail to comply with either the provisions of the constitution as contained in sec. 3, art. 8, or the requirements of secs. 1962 and 1968 of the Revised Codes. Neither the resolution nor the notice states the purpose for which the
Sec. 3, art. 8, of the constitution, provides as follows:
“No county, city, town, township, board of education, or school district, or other subdivision of the state, shall incur any indebtedness, or liability in any manner, or for any purpose, exceeding in that year, the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same. Any indebtedness- or liability incurred contrary to this provision shall be void: Provided, That this section shall not be construed to apply to the ordinary and necessary expenses authorized by the general laws of the state.”
This section has been frequently considered and construed by this court. This is the fundamental law of the state and cannot be disregarded by either the legislature or board of commissioners.
This court in Howard v. Independent School Dist. No. 1, 17 Ida. 537, 106 Pac. 692, considered and construed this same provision of the constitution and sec. 33 of the charter of the city of Lewiston as the same have relation to the issuance of bonds, and the court said:
“It will be observed from the foregoing provisions of the constitution that where a vote is to be taken on the question of bonding ‘for any purpose,’ that an election must ‘be held for that purpose.’ .... The object of requiring each ‘purpose’ to be separately stated and submitted is to prevent combining separate subjects so that one may gather votes for the other.”
Passing, then, to the provision of the statute which was evidently intended to come within the purview of the foregoing provision of the constitution, we find that sec. 1962 says:
“When the interests of the county require it and the board of commissioners of the county deem it for the public good to bond the county to fund or refund the outstanding obligations of the county, or bond the county for the purpose of acquiring funds or purchasing a site and erecting a courthouse and jail or a jail thereon, or for the construction or repair of roads or bridges, or to assist any city or village in said county in constructing a free bridge over any navigable stream within, or partly within, or adjoining, the limits of any such city or village, or for any one or more of said purposes, and the indebtedness or liability of the county that may be created by the bonding, funding or refunding aforesaid, or in purchasing a site and erecting a courthouse and jail or a jail thereon, and for the construction or repair of roads or bridges, or for assisting any city or village in the construction of any such free bridge as aforesaid, or for any one or more of said purposes, exceeds the income or revenue of the county for that year, the board of commissioners may issue bonds of the county as provided by section 1960.....”
Turning, then, to see. 1968, which provides for the giving of notice, we find that when the question of bonding is submitted, notice must be given that the election will be “held for that purpose,” and that the notice “shall recite the action of the board in deciding to bond the county, the purpose thereof, and the amount of the bonds that are to be issued.” By sec. 1962 the legislature evidently intended to recite what the members thereof considered to be separate, different, distinct and various purposes as contemplated by sec. 3, art. 8, of the eon
The only notice the voters of Ada county had of the purposes and objects of the bond issue was as follows:
“Notice is hereby given that on Wednesday, the 25th day of June, 1913, an election shall be held according to law for the purpose of determining whether or not the said Ada County, State of Idaho, shall issue bonds in the sum of Two Hundred Thousand Dollars, the proceeds thereof to be used in the construction, building and repair of roads and bridges within said Ada County, State of Idaho.”
Now, it will be seen from the foregoing notice, the only information the voters had with reference to the purpose and object of this bond issue was that the money would be “used in the construction, building and repair of roads and bridges” within said Ada county. They had no notice of how much was to be used in the building of bridges and how much in the building of roads; they had no notice of the amount to be used in the repair of bridges or of the amount to be used in the repair of roads; they had no notice as to where the bridges were to be located or how many were to be built, nor did they have any notice as to where the roads were to be constructed, the part or portion of the county through which they were to run or the kind of roads to be constructed. Many of the school districts of the state, cities, town and villages and eoun
“The question to be determined in our opinion in a case of this kind is: Was the proposition, or were the propositions, so clearly and distinctly submitted to the electors of the city or town that they could intelligently and positively express their wishes in regard to each, or any, or all of the propositions so submitted? Was the proposition, or were the propositions, -so submitted to the electors that they could adopt or reject either, any, or all of the propositions so submitted? Whether these propositions were provided for in one ordinance, or in separate ordinances, would be immaterial, so long as the electors were not deceived, misled, or prevented from voting upon each proposition separately and independently of the others.”
In Ostrander v. City of Salmon, 20 Ida. 153, 117 Pac. 692, this court held that notice given of an election for the issuance of municipal coupon bonds was in violation of the statute, for the reason that it failed to “specify separately the different purposes for which such bonds” were to be issued, and that “the voter should be given an opportunity to express his will upon each purpose separately.” In that case the city voted to incur a bonded indebtedness of $50,000. The notice recited that the board of trustees of the village of Salmon City proposed to incur indebtedness in the sum of $50,000,
When sec. 3 of art. 8 of the constitution was under discussion in the constitutional convention, one of the committee who presented it suggested that it was taken almost literally from the constitution of California. A perusal of sec. 18, art. 11, of the constitution of California of 1879 shows that our provision has been copied literally from the California constitution, with the exception that the proviso attached to see. 3, art. 8, of our constitution is not found in sec. 18, art. 11, of the California constitution. The supreme court of California, in McMahon v. Board of Supervisors, 46 Cal. 214, passed on a question almost identical with the question here involved so far as the notice of election is concerned, and held that it was insufficient and was not a compliance with the statute and that it was misleading to the voters. The court said:
“Under this proclamation, the money, when raised, might have been expended in the construction and improvement of any highways, or the building of any bridges in the township, at the discretion of the trustees. If such a proclamation was a compliance with the statute, it would have been equally so if it had omitted to mention any particular road or highway, and had specified only that the money was- to be expended in the improvement of highways and the building of bridges*440 generally in the township. The voters would have had no information as to what particular highways or bridges it was proposed to improve or build. ’ ’
While my associates have declined to follow the California case and, to my mind, have overruled a uniform line of decisions from our own court, they have traveled to Florida, Kentucky and Mississippi for the cases of Potter v. Lainhart, 44 Fla. 647, 33 So. 251; Stone v. Gregory, 110 Ky. 492, 61 S. W. 1002; Weston v. Hancock County, 98 Miss. 800, 54 So. 307. I shall not attempt to analyze any one of these cases, but shall dismiss them with the statement that an examination of the cases will disclose that not a single one of them is dealing with or touches the question under consideration in this case.
The method pursued in this election enables those interested in carrying the bond election to play the different sections of the county against each other and secure the votes of all sections in favor of the issue. By this proceeding the commissioners are not bound to expend the money on any particular road or bridge as the law contemplates they shall do. Each section or district of the county might therefore be easily convinced that if the bond issue carried, a certain road or bridge in that section would be constructed and thereby a large share of the improvement to be made would fall to such section or community. This kind of campaigning could easily be done in every section or community in the county. In my opinion, both the constitution and statute intended to prohibit and preclude the possibility of any such thing occurring by requiring the board to state the purpose for which the money would be used, — how much for roads and how much for bridges, and the location of the road or roads and bridge or bridges to be constructed. If this thing had been done, the vote might have been as large or even larger than it was in favor of the issue, or it might have been largely against the issue, depending upon the kind of representations made and the understanding of the voters. The point is that the voters had a right to know the facts in advance so as to enable them to vote on the question in the light of the real facts of the case
I think an election ought to be ordered and held in accordance with the requirements of the constitution and statute, and let the voters of the county know the use and purpose to which the money is to be applied.
