96 N.W. 292 | N.D. | 1903
The plaintiffs instituted this action in the district court of Cass county for the purpose of canceling certain twenty-year drainage bonds issued by the county commissioners of that; county to defray the cost of constructing Argusville drain No. 13 and to enjoin the officers of that county from making assessments-to pay the same. The alleged illegality of the bonds in question is based upon the fact that prior to their execution and delivery, and. on July 1, 1901, the law authorizing the issuance of twenty-year-bonds (section 1474, Rev. Codes 1899) was amended, and the time; for which such bonds might be issued was reduced from twenty years to seven years. The question involved is one of power, and’ arises upon the plaintiffs’ demurrer to the defendants’ answer. The-answer alleges, in substance, that the drain in question was duly established and completed; that the board of drain commissioners on, October 4, 1900, filed their written report showing that all proceedings with reference to its construction and completion had been, duly and regularly had and taken, and that the total cost of the-same was $40,996.97; that oh said date the board of county commissioners adopted a resolution to the effect that it was for the-best interests of all persons liable for the cost of said drain that-bonds should be issued under and pursuant to the provisions of section 1474, Rev. Codes 1899, for the purpose of paying the expense; of constructing and completing said drain, and resolved that bonds.
The demurrer was properly overruled. The validity of chapter 51, p. 65, of the Laws of 1895 (sections 1444-1474, inch, Rev. Codes 1899), known as the “Drainage Law,” and under which the drain in question was constructed and the bonds involved in this action were issued, was challenged by thesé plaintiffs in a former action, and was sustained by this court. Erickson v. Cass County, 11 N. D. 494, 92 N. W. Rep. 841. The question now presented relates to the effect of chapter 39, p. 49, of the Laws of 1901, which amended section 1474, Rev. Codes 1899. Prior to its amendment, section 1474 authorized county commissioners to issue drainage bonds, maturing in their discretion in “not exceeding twenty years from the date thereof.” The section as amended on July 1, 1901, provides.. that bonds issued thereunder “shall be payable in not less than three and not more than seven years from the date thereof.” The answer in this case shows that the board of county commissioners decided to issue twenty-year bonds to pay the cost of constructing the drain in question; that it advertised for bids for such bonds, and that on October 22, 1900, the bid of Close Bros. & Co. for all of said bonds was duly accepted. All of these acts took place before the amendatory act, chapter 39, p. 49, of the Laws of 1901, took effect, and at a time when the board had lawful authority to issue and sell twenty-year bonds. The bonds were not signed and delivered, however, until' November 1, 1901, which was after the amendment had taken effect. The contention of plaintiffs’ counsel is that the power of the board to issue twenty-year bonds was entirely revoked by the amendment,, and that, as these bonds were not actually signed and delivered until November 1, 1901, their issuance and delivery was without authority, and that they are, therefore, void. We cannot agree to this conclusion. It is not necessary to a decision of this case to determine whether chapter 39, p. 49, of the Laws of 1901, was intended to-operate prospectively only, and thus apply merely to drains thereafter established, as counsel for defendants contend; or whether,, as counsel for plaintiffs contends, the legislature intended by theamendatory act also to deprive the county commissioners- of authority
In the matter of the Protestant Episcopal School, etc., 58 Barb. 161; Coffin et al. v. Indianapolis (C. C.) 59 Fed. 221; Smith v. City of New York, 10 N. Y. 504; 1 Dillon on Munic. Corporations (4th Ed.) section 470; McCauley v. Brooks, 16 Cal. 11; Creighton v. Pragg, 21 Cal. 117; James v. Dubois, 16 N. J. Law, 285; Town of Belvidere v. Warren R. R. Co., 34 N. J. Law, 193; Western Saving Fund Society v. Philadelphia, 31 Pa. 185; Cooley on Const. Lim. (5th Ed.) 331; Smith v. Board, 127 U. S. 105, 8 Sup. Ct. 1043, 32 L. Ed. 73; Sutherland on Stat. Const, section 480. See also, Fisher v. Betts (decided at the present term) 96 N. W. Rep. 132, and cases cited. It is possible that the amendatory act should be construed as prospective, .and as having no reference whatever to rights and liabilities existing when it took effect. The courts have adopted this rule of construction in many cases with the evident purpose of relieving lawmakers from the charge of attempting an unconstitutional invasion of vested rights. “The rule is that a statute affecting rights and liabilities should not be construed so as to act upon those already existing. .And it is the-result of the decisions that, although the words of a statute are so general and broad in their literal extent as to comprehend existing cases, they must yet be so construed as to be applicable only to such as may thereafter arise’, unless the intention to embrace all is clearly expressed.”
In the matter of the Protestant Episcopal School, etc., 58 Barb. 161, and cases cited; Sutherland on Stat. Const, section 481; Endlich on Inter, of Stat. section 271. In this case we have assumed that it was the legislative purpose to absolutely repeal the authority of the county commissioners to issue twenty-year bonds. Nevertheless, we conclude that the attempted repeal was without effect as to the bonds in suit, as the purchaser’s right thereto had become vested before the amendment took effect, and could not be impaired by subsequent 'legislative action. Counsel for appellants also claims that “the statute (section 1474, Rev. Codes 1899) is not constitutional.” He contends that county commissioners cannot be authorized to issue bonds .against a drainage district. We know of no constitutional restriction upon the power of the legislature which would prevent that body from conferring upon county commissioners the authority given by this act. No such provision is pointed out or suggested by counsel. Judgment affirmed.