8 Mont. 396 | Mont. | 1889
This was an action brought by the respondent for a writ of mandate to compel the appellant to perform a duty imposed upon it by the second section of an act, entitled an act. to create the county of Cascade, and to define its boundaries, and provide for its organization, passed at the extra session of the Fifteenth General Assembly of this Territory, and approved September 12, 1887. The transcript contains two appeals, one from a final decree directing the issuing of a writ of mandate, and the other from an order after final judgment upon motion of the appellant to retax costs. The appellant demurred to, the petition for the writ of mandate upon the ground: “ First, that the same does not state facts sufficient to constitute a cause of action; second, that the same does not
Said section 2, out of which this contention arises, is as follows, to wit: “That the present indebtedness of the counties of Chotean and Meagher shall be apportioned between said counties, respectively, and said county of Cascade, as follows, to wit: To the county of Choteau the said county of Cascade shall be liable for and shall pay the sum of thirty thousand dollars, and to the said county of Meagher the county of Cascade shall be liable and shall pay the sum of six thousand dollars, which said sums shall be in full of all claims and demands against said county of Cascade, for or on account of its proportion of the present indebtedness of said counties, respectively; and it is hereby made the duty of the county commissioners of the county of Cascade to cause to be issued at their first regular session to each of said counties a warrant or warrants on the general fund of said county for the amounts to which they may be respectively entitled as aforesaid, which said warrants, if not paid on presentation to the treasurer of said county of Cascade, shall be by him indorsed ‘not paid for want of funds/ and shall thereafter bear like interest as other county warrants; or said commissioners may issue coupon bonds of said county bearing interest at not more than six per cent per annum, payable in seven years, and due in fifteen years, in payment of said debt, and to pay
The question is, have they this power under section 2? We think they have not. The act itself does not provide that the bonds shall be turned over to Choteau County. The language used in the act, “in payment of said debt,” coupled with the succeeding clause, “ and to pay current expenses for the first year,” shows manifestly that the legislature intended to put payment of the current expenses of the new county for the first year upon a like footing with the payment of the debt to Choteau County; and no one will contend that the legislature ever meant coupon bonds to be issued and turned over in kind, in payment of the current expenses of the county. The new county was to derive territory, population, and property from the mother county, and the legislature, acting as a kind of pater familias between the mother and daughter, enacted that the just and equitable proportion of the debt of Choteau County which the new county should bear was the sum of thirty thousand dollars. It is true that in the absence of such legislation the new county would not be bound in law for any part of said debt. (Laramie County v. Albany County, 92 U. S. 307.) But the act which declared that Cascade County should pay thirty thousand dollars had the effect of converting a moral into a legal obligation, and to liquidate the accounts between them at that amount. It then became an indebtedness in as full a sense as if it had arisen by contract between the parties. The language used is: “ To the county of Choteau, the said county of Cascade shall be liable for and shall pay the sum of thirty thousand dollars.” It thus creates a debt to be paid in money. But the legislature, in view of the fact that a county can only raise money by taxation or
But it is insisted by the appellant that if the act contem■plated a cash payment from the proceeds of the bonds it would have said so, and would have provided for the transfer of the proceeds from one county treasurer to the other. In reply to this, we say that the act provides that said bonds shall be issued as near as may be in conformity with the general law, and when we turn to section 810 of the General Laws of the Territory, we find that “ when the county commissioners of any county shall issue any bonds authorized by this act, it shall be their duty to sell the same, and give notice by advertising in some newspaper published in the county, or if there be no newspaper published in such county, then in any newspaper published in an adjoining county of this Territory, and also in one or more newspapers published in the city of New York, for a period of not less than thirty days prior to the time said bonds are to be sold. Such advertisement shall be for sealed proposals, which shall state the amount of such bonds for sale, and the party or parties offering the highest price therefor shall be entitled to receive the amount of such bonds which he or they may offer to buy; but no bonds shall be sold for any price less than the par value thereof.” This is a provision for funding the floating indebtedness of the counties by authorizing them to issue bonds, sell them according to the foregoing provisions, cover the money back into the treasury, and pay it out upon presentation in the order of the outstanding warrants. The law then amply
In''anticipation of this obvious condition of affairs, the legislature provided for the issuing of warrants upon the general fund, and upon their being presented and not paid for want of funds, which they must obviously have foreseen would be the case, that they should bear interest from the date of their indorsement by the treasurer, at the usual rate at which warrants draw interest, that is, seven per cent; thus putting it in the power of Cascade County to carry the debt until the commissioners could provide for its liquidation by taxation, or at their election place coupon bonds upon the market at such rate of interest as they might be able to sell them for at par, not exceeding six per cent, and thus raise the money with which to pay in cash the indebtedness created by said act. The act provides that these bonds shall not be payable for seven years, and shall not be due for fifteen years; thus giving the county ample time to get its affairs upon such footing as would enable it to provide for the payment of the principal without embarrassment to its tax-payers. If the commissioners should see fit to issue warrants upon the general fund, and pay seven per cent interest until the money could be raised to pay them, they might at any time thereafter, when in their judgment it was for the best interest of the county to do so, have issued bonds and sold them under the general law, to obtain money with which to liquidate said warrants. But instead of leaving the county to the general law, as it then stood, the legislature saw fit to insert these express provisions for its government. Second. If the commissioners elected to issue warrants on the general fund, they had the right to the whole of the time of such meeting in which to make their election. But the failure of the commissioners to act at this meeting ought not to defeat the rights of the respondent. Had it received warrants, could either have had the money and the use thereof, or the interest which would have accrued. But if the .commissioners had elected the second alternative, that is, to issue
The defendant contends that the above section applies to collections of money actually made and ¡laid into the treasury, and not to the proceeding by writ of mandate to compel the performance of a duty, notwithstanding such duty is the payment of money into the treasury. At first we thought this position correct, but under fuller consideration we have reached a different conclusion, and follow the construction given by the Supreme Court of California to a similar statute, in the case of Higby v. Calaveras County, 18 Cal. 176. In this case the court says: “But it is argued that this case is not brought within the purview of the statute, for the reason that this proceeding was not an
The argument that the fee cannot be paid until the money is collected is not sound, because the statute provides that it shall be taxed as costs, and this should be done at the time the judgment is rendered.
Section 846, supra, provides "that in no case shall the fees allowed by this section .... exceed in amount the sum of twelve hundred dollars in any county, and the county attorney shall furnish to the county commissioners a statement of all fees received by him, which, together with the fees allowed by the county commissioners, shall not exceed the sum of twelve hundred dollars.” This statute governs in this case. By its provisions the county attorney cannot receive a greater sum as a fee than twelve hundred dollars; and the commissions allowed by the statute are limited by this provision.
If the county attorney who was in office when the case was tried below has received the maximum of twelve hundred dollars in fees, then he can receive no more.
Judgment modified.