9 Colo. 404 | Colo. | 1886
Under the replication, and the demurrer thereto, counsel argue and submit for adjudication the following questions, viz.: First, does the limitation imposed upon county indebtedness by section 6, article 11, of the state constitution, include debts contracted by operation of law? Second, can counties which have reached the constitutional limit of indebtedness, and have issued warrants in excess thereof, meet their current expenses as they arise by assignments of the annual revenue (thus appropriating the whole of such revenue, if necessary) accruing from taxes levied, but uncollected?
I. The section of the constitution above mentioned was, at a former stage of the pleading in the case at bar, carefully considered by this court. People v. May, ante, p. 80. It was then held that the expression in said section, “and the aggregate amount of indebtedness of any county for all purposes * * * shall not at any time exceed twice the amount above herein limited, unless,” etc., operates as a “ plain limitation of county indebtedness, irrespective of its •form.” Counsel for petitioner were at that time contending that this limitation applies only to debts contracted “by loan.” Treating our opinion as decisive against that particular construction of the language in question, they now ask us to say that the inhibition reaches such debts only as are the result of voluntary contracts made by the county authorities. They seek to have us distinguish between the purpose for
Should the position of counsel be-sustained? The phrase “for all purposes ” seems to include debts without regard to the method of their contraction. The language itself does not discriminate between purposes governing legislative action, and purposes controlling the conduct of county authorities. It apparently covers every kind of indebtedness, voluntarily authorized or voluntarily contracted. Whether the same be incurred in one way or another, whether created for what may be termed necessary running expenses, or in the consummation of other legitimate municipal objects, the inhibition appears to be equally applicable. The constitutional limitation having been reached, a debt for the statutory fee of an officer, or a statutory liability in connection with any other munic-' ipal employment or expense, is apparently as much inhibited as is indebtedness for labor performed or materials furnished under contract with the commissioners. Such we say is, in our view, the plain import of the language referred to. And,-unless the same section or other sections of the constitution contain provisions inconsistent with this view, or unless there exist' some objection so cogent as to demonstrate that the framers of the constitution could not have foreseen and intended such a construction, its adoption becomes a legal necessity.
We shall consider briefly the principal reasons advanced by counsel for petitioner to support their views in the premises. We preface such consideration, however,
In the first place, we are told that such a construction of the provision in question as the one suggested would produce conflicts between different parts of the constitution itself; that since this construction of section 6 disables certain counties from incurring debts for the payment of officers’ fees, and other necessary running expenses, the business of such counties will not be efficiently transacted, and they will, to a great extent, be shorn of their usefulness. Thus, say counsel, the beneficent constitutional provisions relating to county organization and government will, as to certain counties, be largely, 'if not completely, neutralized. The argument ah inconvenienti is also appealed to; and the serious public disasters that would result from the stoppage of the wheels of county government, because of the inability to incur debts, are strongly depicted.
If there were room in the language before us for judicial construction, and if counsel’s assumptions were true, these arguments would receive great consideration. But the validity of the constitutional provisions to which counsel -refer does not depend upon the ability of counties to create indebtedness; nor do the apprehended'consequences necessarily follow from the inhibition against further.liability. The constitutional provision before us simply prohibits £ £ indebtedness ” beyond a certain sum.
In this connection the case of Potter v. Douglass, 87 Mo. 239, relied upon by counsel, should perhaps be noticed. Important differences exist, in regard to the subject under consideration, between the constitutions of Missouri and Colorado. These differences are perhaps sufficient to, justify the weight given in that case to the argument ab inconvenienti, which is the principal ground of the decision. Bat had the court been construing constitutional provisions precisely the same as our own, and had they held that debts contracted by operation of law were not within the limitation, we should decline to accept their position as controlling.
It may be true, as counsel contend, that a judgment for damages against a county, growing out of the negligent or tortious conduct of its officers or agents, constitutes a liability regardless of its indebtedness. Such is the view taken, under a constitutional provision substantially similar in this regard, by the supreme court of Illinois. Bloomington v. Perdue, 99 Ill. 329. But this fact does not sustain the position urged upon us. It is clear that the language under consideration deals with indebtedness that is reasonably anticipated as a result of voluntary action by the legislature or county authorities— such indebtedness as springs from express or implied contracts. Involuntary liability, arising ex delicto, is a subject that is not contemplated by the provision.
In conclusion upon this branch of the case, we may inquire, Why should the constitutional convention have intentionally left unrestricted the amount of county indebtedness that might arise by operation of law? Experience had demonstrated, and the members of the convention knew, that through such an opportunity the wise purpose of the provision would be largely evaded. If there were no control of legislative discretion in the passing of laws which might operate to create county indebtedness, it is plain that the great evil under consider
II. We now turn our attention to the second question stated at the beginning of this opinion. As already suggested, the constitution does not limit the power of county authorities' in connection with the levy of taxes for county purposes. The maximum amount to be thus raised is a subject left to the discretion of the legislature. That body has fixed a maximum rate, which is, in its judgment, amply sufficient to meet all reasonable current expenses. Should the limit thus named, however, prove inadequate for this purpose, it is to be presumed' the legislature will hasten to make the necessary increase. Hence there can be no real ground for the apprehension of great inconvenience, provided the annual income from taxes can be used in defraying the annual expenses. Upon this subject we entertain no serious doubt. It is, we think, a sound doctrine that, though a municipal corporation be indebted to the constitutional limit, valid appropriations of its revenue may be made, in anticipation of the collection thereof, to meet the ordinary expenses of the current fiscal year. Grant v. City of Davenport, 36 Iowa, 399; State v. Medbery, 7 Ohio St. 531; Fuller v. Heath, 89 Ill. 296; State v. McCauley, 15 Cal. 455; Law v. People, 87 Ill. 400; Koppikus v. State Capitol Com'rs, 16 Cal. 253; People v. Pacheco, 27 Cal. 207; City of Springfield v. Edwards, 84 Ill. 626.
These cases, it will be observed by inspection thereof, do not discuss the subject with reference to counties. But the constitutional provisions construed are substantially similar in this respect to the one before us, and we
There can be no legal indebtedness beyond the constitutional limit. After such limit is reached, therefore, warrants or other instruments representing supposed municipal liability are 'of no legal force or effect. The annual taxes cannot be collected at the beginning of the fiscal year, and hence necessary labor or materials can, in certain counties, seldom be paid for in cash when furnished. Therefore the. question is, how shall the cost of such labof or materials be discharged without money in the treasury, and without incurring indebtedness? Upon this question the cases are not fully in accord. We shall leave counsel to examine for themselves the various decisions that have been rendered in other states, and proceed to give briefly our conclusions upon the subject.
If the written assignment of a 'portion of the incoming revenue be accepted as payment in full for labor or materials furnished to the county, no debt is incurred. Using the language of a decision cited above, “one thing is simply exchanged for another. ” Since, in such case, the assignee takes all the risk if the taxes are not collected, relying simply upon his right to compel the proper officers to perform their duty in the premises, no liability, contingent or otherwise, attaches to the county. But the taxes from which the revenue assigned is to accrue must have been levied previous to such assignment. It is a plain legal as well as business principle that no valid assignment can take the'place of a fund that has no existence either in fact or in law. When appropriations of the kind above mentioned have been made of revenue to accrue from taxes previously levied, the sum thus appropriated is in legal contemplation already collected. Grant v. Davenport, supra; Law v. People, supra.
It is hardly necessary to remark that assignments made in excess of the amount covered by the annual levy would be clearly illegal.'
But, whatever form the particular transaction may take, its effect must be that of an assignment pro tanto, without recourse, by the county, of the fund to accrue from' the current levy of taxes, and the warrant or instrument of assignment must be expressly made payable out of the incoming revenue for the current year. Since all persons must know the law, it is not absolutely necessary that the assignment should state on its face that it is accepted in full satisfaction of the claim on account of which it is given, and that no liability is incurred by the county because of its issue. The instrument issues, is accepted, and must be construed, as though all constitutional and statutory provisions bearing upon its legality were expressly set out among its written or printed terms and conditions. Fuller v. Heath, supra.
The warrant now in controversy was issued after the constitutional limit of indebtedness had been reached by
The demurrer to the replication must therefore be sustained.
Demurrer sustained.