Morse v. Granite County

119 P. 286 | Mont. | 1911

MR. CHIEF JUSTICE BRANTLT

delivered the opinion of the court.

At the general election held in November, 1910, there was submitted to the electors of Granite county the question whether the board of commissioners of the county should issue its bonds to secure a loan of $50,000 to provide funds to build, furnish, and equip a county courthouse and to secure ground for site purposes, in addition to that already owned by the county, in case it should be found necessary. On a canvass of the returns it was found by the board of commissioners that, of the total of 1,302 qualified electors in the county, 483 had voted in favor of issuing the bonds, and 378 had voted adversely. The board thereupon declared that the loan had been approved by the requisite majority of the electors, and was proceeding to issue and sell the bonds under the authority thus assumed to have been given. The plaintiff, an elector and taxpayer of the county, thereupon brought this action to enjoin the board and its members from proceeding further in the premises. It is alleged in the amended and supplemental complaints that the proceedings of the board were nugatory and that the bonds were invalid: (1) Because the board failed first to determine that it was necessary to purchase additional ground for site purposes or to ascertain what amount of the proposed loan would be required to effect the purchase; (2) because the reservation, in the bonds offered for sale, of the option to redeem, is a distinct departure from that determined by the board prior to the election and from that upon which the electors voted;' and (3) because the resolution of the board, at a special meeting held after the election providing for the issuance of the bonds, was not adopted as required by the statute. It is also alleged that the issue of bonds was not authorized by a majority of the electors of the county as required by the statute. The follow^ ing is a synopsis of the resolution and orders of the board under which the election was held: At a regular meeting held on September 12, 1910, it was determined by a majority vote of the board, upon consideration of a petition submitted by certain residents and taxpayers of the county, that the “present building used for a courthouse is insecure,” and that it was to the “best interest of the people of the said county that a suitable and fireproof building be built.” It was thereupon ordered that an election be proclaimed for November 8, 1910, and that the proclamation be spread upon the journal of proceedings of the board as its order determining the necessity for the loan and its amount, the purposes for which the bonds were to be used, and the statement of the proposition submitted to the electors. This order reads as follows:

“Whereas it is considered by a majority of the board of county commissioners of Granite county, Montana, that it is necessary in order to furnish and provide suitable, secure and safe storage room for the county records of the county, and for the convenience of the county officers of this county and for holding the district court of said county, that a new, modern, fireproof, secure and convenient courthouse for said county should be erected; and whereas, it may be necessary to secure additional ground for a site for said courthouse in addition to the ground already owned by the county; and whereas, there are not sufficient funds in the treasury of said county to pay the costs of securing such additional ground for the construction of said courthouse or for the furnishing or equipment of the same; and whereas, it is considered by the board, that the sum of fifty- thousand dollars will be necessary for such .purposes as aforesaid; and whereas, it will be necessary, to issue and sell coupon bonds of the said county in the sum of fifty thousand dollars, in order to provide -a fund for the building of such courthouse and the purchase of additional: ground therefor, and the furnishing and equipment of the same; and that such bonds to be issued and sold in order to obtain, the highest market price for the same should be when issued payable in twenty years from the date thereof, and to be redeemable as follows, to wit: Five thousand dollars thereof to be redeemable in ten years thereof; five thousand dollars thereof to be redeemable and payable each and every year -after ten years.

“It is therefore ordered by the board, that at the general election in the county of Granite, to be held on the 8th day of' November, 1910, at the regular established polling places in the various precincts in the county, there shall be submitted, to the qualified electors of said county who are duly registered according to law and entitled to vote at such election, the question and proposition as to whether coupon bonds of the said county amounting in the aggregate in the sum of fifty thousand dollars, bearing date the first day of March, 3911, and bearing interest at the rate of 4% per cent per annum, payable semiannually from date, which shall be payable in twenty years, from the date thereof, and five thousand [dollars] worth thereof shall be redeemable in ten years from the date thereof, and five thousand dollars worth thereof shall be redeemable in ten years, on the first day of March, in each and every year, after, ten years.

“Such bonds to be issued and sold for the purpose of providing a fund for said county for the purpose of the construction of a county courthouse at the county seat at Philipsburg, Montana, and for the purchase of additional ground for the site for said courthouse, and the equipment and furnishing the same.

□ “For authorizing and giving the authority to the county commissioners of Granite county, to issue and sell coupon interest-bearing bonds of said county in the sum of fifty ($50,000.00) thousand dollars, bearing interest at 4% per cent, redeemable in ten years, payable in twenty years, for the purpose of the construction of a county courthouse for the said county and the purchase of additional ground therefor, and the furnishing and equipment thereof.

“It is further ordered that [at] said election separate ballots be provided and the same duly numbered and perforated, as the regular ballots are, with the following proposition clearly stated thereon; that is to say, the form of the ballot to be used at said election for the purpose of voting upon such proposition shall be substantially as follows, to wit:

| | “Against authorizing and giving the authority to the county commissioners of Granite county, to issue and sell coupon interest-bearing bonds of said county in the sum of fifty ($50,000.00) thousand dollars, bearing interest at 4% per cent, per annum, redeemable in ten years, payable in twenty years, for the purpose of the construction of a county courthouse for the said county and the purchase of additional ground therefor, and- the furnishing and equipment thereof.”

The above order .was thereafter duly published as the notice of election. The ballot used at the election was prepared in conformity with the order of the board, the clerk causing to be printed thereon the usual instructions as to how the elector should indicate his choice. On February 23, 1911, a special meeting was held by the board pursuant to notice given on February 17. The notice stated the purpose of the meeting as follows: “Said meeting is called for the purpose of adopting a form of bond, fixing the denomination of the same, and for the purpose of advertising the sale of courthouse bonds, and to do all necessary things in connection with the -advertising and sale of bonds for the erection of a courthouse.” The journal of the proceedings, after reciting that authority had been conferred upon the board by the election and also the purpose of the meeting, contains the following: “Resolved, in accordance with the authority so given the board -at said election: That the said board issue, and ■ they do hereby issue said coupon bonds to the number'of fifty, in denominations of one thousand each, in the amount of $50,000.00, bearing interest at 4% per cent, per annum, payable semi-annually,” etc. Upon the passage, of this resolution, a form of bond was adopted and an order was made fixing April 4, 1911, at 10 o’clock A. M., as the date of sale and directing publication of notice thereof, to be made by the clerk as provided by the statute. This was done. The date of issuance was not specially stated in the order, but -the dates for the payment of interest were fixed as January and July of each year. The adopted form bore the date July 1, 1911, and the due date was fixed as July 1, 1931, or, at the option of the county, as July 1, 1921, or “at any interest paying period -after the 1st day of July, 1921.” The district court held the bonds void and ordered the injunction to issue. The defendants have appealed. There is submitted the question whether the bonds are invalid for any one or more of the reasons alleged.

By way of preliminary, it may be remarked that the validity of the proposed bond issue is questioned solely on the ground that the -board was guilty of an omission to observe the requirement of the law in substantial particulars. There is no allegation or suggestion of fraud or willful wrongdoing, by which the plaintiff or any other elector was misled so that he lost his vote.

While, in a strict sense, a county is not a municipal corporation, yet, in the sense that, it is a body corporate with such powers only -as are expressly conferred by the Code and special statutes, and such as are necessarily implied from those expressed (Rev. Codes, sec. 2870), it comes within the rules and principles applicable to such corporations. Therefore, its board of commissioners — its executive body — is a body of limited [1] powers and must in every instance justify its action by reference to the provisions of law defining and limiting these powers. (Section 2894; State ex rel. Lambert v. Coad, 23 Mont. 131, 57 Pac. 1092.) If, however, there is no question of the existence of the power to do the act proposed, and the mode of its exercise is not pointed out, the board is left free to use its own discretion in selecting the mode it shall adopt or the course it shall pursue, and the result cannot be called in question if the course pursued is reasonably well adapted to the accomplishment of the end proposed.

“1. The board of county commissioners has jurisdiction and power: * * * (8) To purchase, receive by donation, or lease any real or personal property necessary for the use of the county, preserve, take care of, manage and control the same; but no purchase of real property must be made unless the value of the same has been previously estimated by three disinterested citizens of the county, appointed by the district judge for that purpose, and no more than the appraised value must be paid therefor.”

“ (9) To cause to be erected and furnished a courthouse, jail, hospital, and such other public buildings as may be necessary. # # *

“ (27) To issue on the credit of the county, coupon bonds to an amount sufficient to secure the necessary funds for the procurement of necessary building sites, for the construction of necessary public buildings and for the construction of bridges and highways, in accordance with the provisions of Articles III and IV, Chapter II, Title II, Part IV, of the Political Code.” (Rev. Codes, sec. 2894.) Article IV of the Political Code of 1895, referred to in the last subdivision of this section, comprises sections 2933 to 2938 of the Revised Codes.

Section 2905 also confers the power, among others, to issue bonds for the purchase of necessary building sites, and for the construction of necessary public buildings.

Section 2933 provides that the question whether a loan shall be effected shall be submitted to the electors of the county.

Section 2934 declares: “Whenever it is necessary to submit to a vote of the electors of the county the question of making a loan, the board must first determine the amount necessary to be raised.”

There is nowhere in the Codes any provision requiring the power of the board to be put in motion by petition. It may, therefore, proceed upon its own initiative and determine whether it is necessary to effect a loan and what amount is required. [2] Having ascertained that it is necessary, it must determine the amount in order that the electors may know the extent of the burden they assume. This is a necessary prerequisite to the validity of all subsequent proceedings. (Section 2934.) Was the board required by this provision to make specific findings of the amount necessary for each of the three purposes included in the general purpose, viz., the erection of a suitable courthouse building ? The section does not say so in terms, and since the power to purchase real estate necessary for the use of the county, and to cause to be built and furnished necessary. county buildings, including a courthouse, and to issue bonds for these purposes, is conferred by sections 2894 and 2905, we hold that the finding of the amount necessary for the general purpose was sufficient.

In Hefferlin v. Chambers, 16 Mont. 349, 40 Pac. 787, this court in construing section 5, Article XIII, of the Constitution, which prohibits a county from incurring indebtedness or liability for any single purpose in an amount exceeding $10,000, expressly held that the purchase of a site and the erection of a courthouse thereon is a single purpose within the meaning of the prohibition. And in the case of Yegen v. Board of County Commissioners, 34 Mont. 79, 85 Pac. 740, in which this court, in considering the validity of a statute creating a state board of health, and referring to certain provisions therein which authorized the board of county commissioners to erect a detention hospital, said: “While these sections do not in express terms empower the hoards of commissioners to acquire sites for the erection of detention hospitals for their respective counties, they do confer the power to build them, and, by the well-settled rule that every power necessary to execute the power expressly granted is necessarily implied, the power to acquire by purchase or otherwise suitable sites for these hospitals is necessarily implied; for it would be idle to say that the boards have power to erect suitable buildings for the expressed purpose, and then say that they have no power to proceed because there is no express grant of power to purchase suitable sites for them. ’ ’ The same may with equal propriety be said of the necessary furnishing of the building. The site and the furnishing are both necessary parts of the general purpose to provide the county with a courthouse, because not only must the building be suitable in structure and arrangement to serve the public as a courthouse, but it must also be so furnished and equipped that it will be useful for that purpose. The preliminary finding of the board was sufficient.

But counsel for plaintiff say that subdivision 8 of section 2894, supra, prohibits the board from purchasing any real estate, unless its value has been previously estimated by three disinterested citizens, appointed as therein provided. This is true, but it does not follow that the price must be ascertained before the issue of bonds may be voted by the electors. The prohibition becomes operative only when the time has arrived when it becomes necessary to fix the terms of the purchase.

2. Nor do we think the bonds should be held invalid either because the ballot used by the electors did not permit them to vote upon the proposition exactly in the form in which it was stated in the proclamation, or because the option to redeem was not reserved in the terms stated therein. The only question [3] which it was necessary to submit to the electors was whether the board should effect the loan for the purpose stated and in the amount found necessary. This was done, and we do not think the result should be declared nugatory because the board consulted the electors as to the date the bonds should bear, or when they should mature,' or as to the rate of interest they should bear, or as to the terms of the option to redeem, or as to the dates at which the interest should be due and payable. ■ It is mandatory upon the board to fix the date of maturity of such bonds at a period not longer than twenty years from the date of their issuance, and to reserve the option to redeem them, or some of them, prior to the date fixed for their maturity. So, also, must the interest, not exceeding six per cent, be made payable semi-annually on the first days of January and July of each year. (Rev. Codes, sees. 2905, 2911, 2912; Carlson v. City of Helena, 39 Mont. 82, 102 Pac. 39.) Subject to these requirements, however, the board may fix the date of the bonds, the rate of interest, and the terms of the option to redeem to meet its own judgment as to the ability of the county to discharge. the indebtedness. "With these matters the electors have nothing to do. The order of the board in such cases is jurisdictional. It must contemplate an indebtedness which falls within the power of the board to create for a designated purpose. "When it meets this requirement, or, in other words, when it embodies all the statements which the statute requires it to contain, the: consent given by the electors is not restricted or enlarged by reason of the fact that through inadvertence or mistake it contains matters the determination of which lies exclusively in the discretion of the board. The function of the order is not to notify the electors what the law is, but to inform them of the action which the board proposes to take, and of the time and place at which those entitled to give or refuse their consent may do so. (State ex rel. Whitmore v. Carbon County, 36 Utah, 394, 104 Pac. 222.) A notice in substantial compliance with the statute is sufficient. (10 Am. & Eng. Ency. of Law, 2d ed., 631.) It need not state matters implied, and, if it does, it will not be nugatory so long as it is not so misleading as to cause the electors to lose their votes. (15 Cyc. 323.) It is analogous to a pleading in an ordinary action or special proceeding. The familiar rule applied to the construction of a pleading, viz., that, if it states a cause of action, surplus and redundant aliegations may be stricken ont or disregarded, is applicable to such an order, and matters wholly irrelevant to the proposition to which the electors must give their consent may be treated as surplusage. That the electors have been asked to give their consent to things which the board may or must do without such consent, may not be held to restrict the discretion lodged in it by the statute. The instant case is to be distinguished from that of Carlson v. City of Selena, supra, and like cases. In that ease the ordinance calling the election submitted to the electors the question whether the city should issue its bonds to procure a particular supply of water, instead of the question generally, whether it should issue bonds to procure a supply, thus devesting itself of the discretion, lodged in it by law, to procure any supply which it might find available. The proposition submitted to the electors of the city departed substantially from that which the council had authority to submit. The election was held void for that reason, and not because the council asked the approval of the electors of things which might be done without it.

"While the form of bond adopted incorporated the proposition as printed upon the ballot, it was not incumbent upon the board to have it so. The amount and purpose of the loan, as stated in the ballot, was all that was required to be stated.

3. The statute authorizing special meetings of boards of county [4] commissioners requires them to be called by order signed by a majority of the members of the board and five days’ notice to be given by the clerk to each member not joining in the order. It provides: “The order must specify the business to be transacted and none other than that specified must be transacted at such meeting.” (Rev. Codes, see. 2886.) The purpose of this requirement is to give every member of the board the opportunity to be present and take part in the business to be transacted. If any member does not choose' to be present, he may under this provision exercise his option to remain away in case he thinks his interest in the pending business is not such as to demand his personal attention. If he does not care to attend, he has the assurance that the board will not take up any other business than that specified. It is true that the order in question contains no reference to an intention on the part of the board to adopt a formal resolution directing the bonds to issue; but it does state that the board intended to do all necessary things in connection with the advertising and sale of the bonds for the construction of a courthouse. This cannot be .construed to mean anything other than that the board intended to do everything in ¡ connection with the preparation of the bonds which was necessary to effect a sale of them. This included, of course, a formal order directing them to issue, if such an order were necessary. Besides, the order calling the meeting was signed by all the members of the board, and all were present and took part in the business transacted. There is, we think, no merit in the contention made by counsel for plaintiff that the bonds are void because the call for the meeting did not specially state that the formal order directing the bonds to issue would be made.

4. Was a majority of the vote east in favor of the issuance [5] of the bonds within the meaning of the provision of law applicable? Section 5 of Article XIII of the Constitution declares: “No county shall incur any indebtedness or liability for a single purpose to an amount exceeding ten thousand dollars ($10,000) without the approval of a majority of the electors thereof, voting at an election to be provided by law.” •

Section 2933, supra, of the Revised Codes, and section 2937, read as follows:

“See. 2933. The board of county commissioners must not borrow money for any of the purposes mentioned in this title, or for any single purpose to an amount exceeding ten thousand dollars without the approval of a majority of the electors of the county, and without first having submitted the question of a loan to a vote of such electors.”

“Sec. 2937. ■ If a majority of the votes east are in favor of the loan, then the board may make the loan, issuing bonds, or otherwise, as may seem best for the interests of thé county.”

In the cáse of Tinkel v. Griffin, 26 Mont. 426, 68 Pac. 859, this court, construing the provision of the Constitution, supra, said: “The evident meaning of the Constitution is that the approval must he the result of an expression of a majority of those voting. The expression ‘majority of the electors thereof voting at an election,’ etc., clearly means a majority of those who vote, and not a majority of all the electors of the county, or of those who vote upon any other issue at the same or some other time.” This- conclusion was reached because the language employed indicated that the convention had adopted the theory that the control of public affairs must be regarded as belonging to those electors who take a sufficient interest in them to give expression to their views at the ballot-box.

But counsel for plaintiff insist that since the Constitution is only a limitation upon the power of the legislature, and the provision thereof quoted above goes no further than to declare that indebtedness beyond the amount mentioned shall not be contracted without the approval of a majority of the electors “voting at an election to be provided by law,” it does not operate as a limitation upon the power of the legislature, but is only a requirement without the observance of which the proposed debt cannot be contracted, and hence that the legislature is free to declare that a county cannot issue bonds for any purpose unless they are authorized by a larger vote than that required by the Constitution. We shall not stop to examine this contention. Assuming that it is based upon sound principle, in the absence of an intention clearly expressed by the legislature to the contrary, we are not at liberty to conclude that it in the enactment of section 2933, supra, purposed to add any requirement to that prescribed by the Constitution. Though the language of the section deviates from that employed in the Constitution, it was evidently enacted in pursuance thereof and must be held to mean the same. That this is true is clear from the position occupied by the section in the Article in which it is found and the subject with which it deals, as well as from the provision found in section 2937, which follows substantially the language used in the Constitution. Section 2933 is the first section in the Article, and in pursuance of the constitutional requirement, declares the limit beyond which the county may not go without the consent of the electors. The words “majority of the electors of the county” were evidently loosely used, without any purpose of declaring definitely what majority of the electors was deemed necessary. On the other hand, when the legislature came to declare a definite purpose on this subject, in section 2937, by'use of the words “a majority of the votes cast,” it indicated its purpose not to add anything to the requirement prescribed by the Constitution, but to pursue it strictly. These sections were enacted at the same time, with three other sections, each dealing with a different particular of the mode prescribed for the negotiation of loans by counties. They must be construed, therefore, so as to render them harmonious with each other. The construction we have given them renders them so. In any event, under the rule of construction provided by the Codes (section 3558), since section 2937 stands later in numerical order in the title, and is not inconsistent in its provisions with the general meaning and purpose of it as a whole, it must prevail.

"We are of the -opinion that the proceedings of the board, though irregular, were in substantial compliance with the law; that the election was properly conducted; and that authority to issue the bonds was granted by a majority of the electors, as required by the Constitution and the statutes made in pursuance thereof.

The order granting the injunction is, accordingly, reversed, and the cause is remanded.

Reversed and remanded.

Mr. Justice Smith and Mr. Justice Holloway concur.