Shoshone County v. Profitt

84 P. 712 | Idaho | 1906

Lead Opinion

AILSHIE, J.

— The decisive question in this case is to determine the meaning of that portion of section 3 of article 18 of the constitution which reads as follows: “When any part of a county is stricken off and attached to another county, the part stricken off shall be held to pay its ratable proportion of all then existing Habilites of the county from which it is taken. ’ ’ It seems to me that this language is too plain and simple to either require or admit of construction. It continues the liability of the detached territory for its ratable proportion of the debts of the county from which it was taken. That was the evident intention of the framers of the constitution and was clearly so expressed by them. It is as much a prohibition against the legislature imposing such indebtedness on the county to which the detached territory is annexed as it is against leaving the entire indebtedness to be paid by the old county from which the portion is stricken off. The express language is that “the part stricken off shall be held to pay its ratable proportion” of the existing debts. The maxim “Expressio unius est exclusio alterius” is peculiarly applicable here. ' The constitution having said that one particular portion of territory should pay a certain portion of indebtedness has thereby excluded and exempted aH other territory from paying the same.

Sections 4 and 5 of the constitution of Colorado adopted in 1876 are as follows: “Sec. 4. In all cases of the establishment of any new county, the new county shall be held to pay its ratable proportion of all then existing liabilities of the county or counties from which such new county shall be formed. Sec. 5. "When any part of a county is stricken off and attached to another county, the part stricken off shall be held to pay its ratable proportion of all then existing liabilities of the county from which it is taken.” Section 4 above quoted is not to be found and has no parallel in our constitution ; but section 5 is in the identical language of the last sentence of section 3, article 18 of our constitution as quoted above. This sentence found in the Idaho constitution was evidently copied from the Colorado constitution, for I cannot find the identical language in the constitution of any other state. In 1886, and long prior to the adoption of our constitution, the supreme court of Colorado, in Re House Bill No. 122, 9 Colo. 640, 21 Pac. 478, had under consideration the application of sections 4 and 5 of article 14 of their constitution, and in the course of the discussion said: “While sections 4 and 5 of article 14 of the constitution relate to a common subject, viz., the pro rata payments of existing liabilities upon a subdivision of a county or counties, yet they relate to this subject under wholly different circumstances and conditions. A distinct and different rule is likewise provided for each ease. Section 4 refers to the liabilities of a new county created out of a part or parts of one or more existing counties. Section 5 has no reference to the formation of a new county, but to the division of an existing county, whereby a portion of its territory is stricken off and added to another existing county. In the first case, the new county, as a distinct organization, is ‘held to pay its ratable proportion of all then existing liabilities of the county or counties from which such new county shall be formed’; in the second, the original liability of the part stricken off is continued.” The court, as will be seen, held in that case, and so advised the legislature, that “the original liability of the part stricken off is continued.” It must be assumed that the framers of the constitution in incorporating section 5 of article 14 of the Colorado constitution into the Idaho constitution, did so with full knowledge of the construction and interpretation previously placed on it by the Colorado court, and meant and intended-to adopt that construction.

In Stein v. Morrison, 9 Idaho, 426, 75 Pac. 246, this court held that, “when a statutory or constitutional provision is adopted from another state, where the courts of that state have placed a construction upon the language of such statute or constitution, it is to be presumed that it was taken in view of such judicial interpretation, and that the purpose of adopting the language as the same had been interpreted and construed by the courts of the state from which it was taken.” If, therefore, there can be any doubt as to the meaning of the provision of section 3, article 18 now under consideration, that doubt ought to be entirely and completely dispelled by the authority of the Colorado court above quoted. We are not, however, without further authority on this subject to the same effect as above quoted. There is to be found in section 1 of article 9 of the constitution of Texas as adopted in 1875 a provision to the same effect, and in almost the same language as in our constitution. It reads: “When any part of the county is stricken- off and attached to or created into another county, the part stricken off shall be holden for and obliged to pay its proportion of all the liabilities then existing of the county from which it was taken, in such manner as may be prescribed by law.” This provision of the Texas constitution was construed and upheld in Miles County v. Brown County, 85 Tex. 391, 20 S. W. 81, where the supreme court of Texas held an act unconstitutional, for the reason that the legislature had attempted to measure the pro rata proportion of the liabilities to be paid by the detached portion by the extent of its area instead of by the amount of its taxable property. In Blount Co. v. Loudon Co., 8 Heisk. (55 Tenn.) 854, and Commissioners of Vance v. Commissioners of Granville, 107 N. C. 291, 12 S. E. 39, the supreme courts of Tennessee and North Carolina have each placed a like construction on similarly worded legislative acts of their several states. The courts there held that the indebtedness is continued against the portion of territory stricken off to the extent of its proportionate share thereof.

Some comment has been made to the effect that this provision works an injustice on the people of the detached territory. A careful consideration of the origin of the liability and the legal and moral obligation of the people who incurred the same to see it paid, makes it clear that justice is more effectually done by -requiring the segregated territory to pay than by imposing the liability on a county and territory that received no consideration therefor. But it is not out of place to say here that the duty of this court is to ascertain the meaning and intent of the constitution, and when that object is accomplished to so declare it; the question of its justice or injustice has been passed on by the people in its adoption, and with that the courts have nothing to do. The courts are not the authors of the constitution, but are rather its interpreters.

My next inquiry will be to ascertain whether or not the legislature in the passage of House Bill No. 123, approved March 10,1903, and providing for the annexation of a portion of Shoshone county to Nez Perce county in any way avoids or contravenes the foregoing constitutional provision. It is conceded that it provides a just and equitable method of ascertaining and establishing the “ratable proportion” of liabilities to be borne by the detached territory. In fact, the only part of the act of which Nez Perce county complains is that sentence contained in section 4, which reads as follows: “Said accountants shall make certificates of the adjustment they make showing a fully itemized statement of the debits and credits, and file one each with the chairman of the board of commissioners of each of the counties of Shoshone and Nez Perce, and whatever amount is shown by such certificates to be due from either of the counties to the other, the board of commissioners of the proper county shall cause warrants to be drawn by the auditor of their county in favor of the other of. the amount due, at their first regular session after the filing of the accountant’s certificate, as aforesaid.” It is claimed by the defendant that the legislature, by the foregoing provision, has attempted to make the whole of Nez Perce county liable for the indebtedness which the constitution meant should be borne by the annexed territory. There was no attempt by this act to repeal any existing laws except as might be in conflict with the act. This act should therefore be read in connection with the existing laws on the same subject. The legislature by an act approved March 8, 1895 (Sess. Laws 1895, pp. 58, 59), amended sections 3605 and 3606 of the Eevised Statutes, which provided for the issuance of funding and refunding county bonds, and for continuation of liability therefor by the whole territory included within the jurisdiction at the time of the issuance of the bonds. Section 3605, which provides for the levy and collection of a tax to pay the principal and interest of such bonds, contains this provision: ‘ ‘ The faith, credit, and all taxable property within the limits of the county as constituted at the time of such issue are and must continue pledged to the payment of such bonds.” Section 3606 is as follows: “Should any part of a county that has incurred a bonded indebtedness, be cut off, and annexed to another county, or erected into a new or separate county, the assessor of the county to which the segregated portion is attached, or the assesor of the new county created as aforesaid, shall upon notice from the board of county commissioners of the original county from which such segregated portion was detached, given at the regular session of the board when county and state taxes are levied, collect in said segregated territory, and in addition to the other taxes collected by him for county and state purposes, and at the same time and in the same manner, the tax levied by said board of commissioners as herein provided; and the laws of the state relating to the levy and collection of taxes, and prescribing the powers, duties and liabilities of officers, charged with the collection, and disbursement of the revenue arising from taxes, are made applicable to this act. The money collected by the assessor as aforesaid shall be paid over by the treasurer of the county collecting it, to the treasurer of the county losing the said territory, and for the purposes herein directed, but such segregated territory so attached to another county, or erected into a new county shall be relieved of the annual tax, levied as provided in the foregoing section, when the county acquiring the same, or the new or separate county pays to the county losing the territory that proportion of the whole indebtedness, together with legal interest therein, that the assessed value of property in the segregated territory bears to the assessed value of the property in the whole county, as constituted before the division or segregation thereof." These sections were re-enacted and approved February 7, 1899 (Sess. Laws 1899, p. 138). It may be said that the foregoing provisions apply especially to bonded indebtedness; but I do not think that can make any difference for the purposes of this case. All the legal indebtedness must be paid and for that purpose revenue must be raised by taxation. The record before us is silent as to whether the indebtedness is warranted or bonded, but in view of our constitutional and statutory'restrictions of counties and county indebtedness, I can scarcely imagine a county of this state as having an outstanding warrant indebtedness of $366,373. It is reasonable to assume that this is bonded indebtedness.

It is fair, and indeed our duty, to presume that the legislature knew of the provisions and requirements of sections 3605 and 3606, sufra, when enacting House Bill No. 123, for the annexation of the territory therein described, and passed the same with an intention of the provisions of section 3606 applying to the collection of taxes for the payment of the fro rata proportion of indebtedness to be borne by the detached territory. There is nothing in the act authorizing annexation that is in conflict with section 3606, nor is that section in conflict in any manner with the provisions of the annexation act. They should therefore both stand as valid and effective legislative provisions and be construed together. Territory stricken off from one county and annexed to another has of itself and alone no organization, or officers to act for it, and is necessarily represented by the officers of the county to which it is annexed and becomes a part of such county and county government. It was therefore competent and proper for the legislature to authorize and require Nez Perce county and its officers to act as the agent, representative or trustee of and for the territory annexed in the adjustment and settlement of its business and fiscal relations with the parent county. That is what the legislature has done. The issuance and delivering of warrants of Nez Perce county to Shoshone county is merely an evidence of the results of the investigation and adjustment and of the amount found due to Shoshone county from the territory it has lost. These warrants will be payable 'only out of taxes collected from the annexed territory in the manner and under the requirements and restrictions of section 3606 of the Eevised Statutes, supra. Under these provisions no greater rate of taxation can be collected from the segregated territory in any given year than shall be levied and collected for the same year in Shoshone county for the purpose of defraying the indebtedness of that county existing at the time of the settlement and adjustment of liabilities between the county of Shoshone and the segregated portion. The warrants issued by Nez Perce county as an evidence of indebtedness will only be payable as moneys shall be received by the treasurer of Nez Perce county from such taxation. They can only be drawn against such revenue to be raised in the manner designated. This arrangement and these provisions entail no unusual complications. Under the existing school laws of this state, any school district is authorized to bond for the purpose of erecting school buildings, and in addition thereto” is authorized to vote a special school tax for such district. Some of the counties of the state have as many as one hundred school districts, and each having a different rate of taxation for the payment of interest and principal on bonds and the maintenance of the schools. These tax levies are certified by the local or school district authorities to the proper county official, and the taxes are collected by the tax collector in the same manner as county and state taxes are collected.

I therefore conclude that the act of March 10, 1903, providing for the annexation of a portion of Shoshone county to Nez Perce county, is constitutional and valid, and that it is the duty of Nez Perce county to issue its warrants in favor of Shoshone county for the amount found due and payable out of the revenue to be raised in the manner herein designated. I also conclude that such warrants will become the liability of Nez Perce county only to the extent of its duties and obligations as agent or trustee for the segregated territory in the collection of the tax as the same may be levied and certified from time to time by Shoshone county in accordance with the provisions of law hereinbefore cited. The. writ prayed for will issue to the extent and for the purposes herein «decreed. No costs awarded.

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Concurrence Opinion

STOCKSLAGER, O. J.,

Concurring. — I concur in the conclusion reached by Mr. Justice Ailshie. I can see nothing but equity and justice in this conclusion. It seems to me that it is the only logical construction of section 3, article 18 of our constitution. Under this provision of our constitution and the laws enacted by our legislature quoted by Mr. Justice Ailshie, it would seem that when any number of inhabitants of a county desire to be annexed to another county, the penalty is that they must pay their proportion of the existing debt of the mother county without assistance from the county to which attached. With these constitutional and legislative enactments to guide them as to their future status in both counties, they are given the privilege of voting upon and determining entirely upon their own responsibility their future responsibilities. After the legislature has given them the right to determine this question, neither the mother county nor the county to which it has been determined they may decide to be attached, or otherwise, has any voice in the matter; and in this case when they decided by their votes that they desired to secede from Shoshone county and become attached to Nez Perce county, the officers of Nez Perce county could do nothing other than comply with the law in appointing an accountant to ascertain the existing debts of the two counties, appointing officers and doing all things required of them to put them under precinct, school and county government. They came into Nez Perce county bringing their burdens for which Nez Perce was in no wise responsible, and in equity should not be required to pay. All this being true, where is the injustice? Shoshone county may collect all that territory owes her on the debt existing at the time of the severance, and for which Nez Perce was certainly in no wise to be held responsible, holding the warrants of Nez Perce as a guaranty of future payment. Nez Perce has no reasonable or valid complaint, for the reason that no additional burden is placed upon the tax-payers for which there is not provided ample security by the addition of the new territory and the requirement that it must pay its own obligation. The inhabitants of the annexed territory have less reason for complaint (we are not informed that they are complaining) than Shoshone as it now exists or Nez Perce since annexation, as it was a privileged question with them, and it is to be presumed they voted upon the question of annexation advisedly and fully realizing that they could not sever their relations with Shoshone county without paying their portion of the debt of that county.

Sullivan, J., dissents.