GRAND ISLAND & NORTHERN WYOM- proceeding to enjoin defendants from collectING RAILROAD COMPANY ing certain taxes which had been levied in

Crook county for the year 1895. Answers faNorval H. BAKER et al.

corable to complainant.

The facts are stated in the opinion. (........Wyo.........)

Messrs. Burke & Fowler and N. K.

Griggs for plaintiff, 1. A question arising upon the plead- Messrs. J. L. Stotts and M. Nichols, for ings wbich is certified to the supreme court for defendants: decision cannot be answered if the facts do not There is no distinction made by the courts sufficiently appear in the pleadings to authorize between bonded debt and liquidated debts gena complete determination of it.

erally so far as the application of the term 2. In determining whether or not public debt" is concerned. The bonded debt

county indebtedness violates a consti. is simply a funded debt and the other a floating tutional provision that no county shall create debt. any indebtedness exceeding 2 per centum State, Palmer, v. Hickman, 11 Mont. 541; upon the assessed value of the taxable property People, Seeley, v. May, 9 Colo. 80, 9 Colo. 404; in it, compulsory obligations imposed by the Lau v. People, Pluck, 87 Ill. 385; Gray v. Benlegislature must be included.

nett, 3 Met. 526. 3. The fact that the validity of the

In United States, Butz, v. Muscatine, 75 U. S. debt on which a judgment against a county | 8 Wall. 575, 19 L. ed. 490, the court states: was rendered cannot be questioned in a proceed. The statute of Iowa, that the city of Muscaing to enforce a tax to pay it does not prevent tine shall levy a tax of only 1 per cent a year a resistance of the tax on the ground that it was does not excuse such city from levying a tax not authorized by law. 4. A judgment against a county for a state Code provides for the levying of such

to pay a judgment against it, so long as the claim which should have been paid out of current revenue, but was not because the amount limited by the Constitution was exhausted, and 85 U. S. 18 Wall. 71, 21'L. ed. 771.

See Carroll County Supers. v. United States, which did not become valid county indebtedness because the constitutional limit of indebtedness

The county purposes or taxes for wbich any had already been reached, or because it was not certain county, by $ 2, cbap. 6, Laws of 1867, legally adopted by the people, is not "public is limited to 3 mills on the dollar, except on a debt" within the meaning of a provision of a vote of the people, include only the ordinary Constitution limiting the tax rate except for expenses of the county, and do not include public debt and interest thereon.

money to pay principal or interest of a county 5. Recourse to the claims upon which debt. judgments against a county were ren.

McCormick v. Fitch, 14 Minn. 252; State v. dered may be had to determine to what class Milwaukee, 25 Wis. 122; Cooley, Taxd. they belong, and whether or not any limit is im- | 138. posed upon taxation by which they may be en- The limitation of 12 mills for county revenue forced.

was to prevent the board of county commis. 6. The expense of maintaining the dis- sioners from incurring indebtedness by extrava

trict court is a county purpose which must be gant or reckless management. But the salary provided for out of the fund raised by the lim- of an officer is not an indebtedness of the ited tax levy authorized by Const. art. 15, 8 5.

county which is created by the county board. 7. Compensation to be made to a land. State, Wessel, v. Weir, 33 Neb. 35; State,

owner for land taken by a county for the loca- Rotwitt, v. Hickman, 9 Mont. 370, 8 L. R. A. tion of a public road must be paid out of the or- 403; Welch v. Strother (Cal.) 16 Pac. 22. dinary county revenue raised by the limited tax

A liability imposed by the legislative power provided by Const. art. 15, 85.

of the state does not come under the general 8. A board of county commissioners rule limiting the creating of public indebted

which can only act as a body in session cannot confess judgment against the county under a statute requiring defendant to personally appear People, Rollins, v. Rio Grande County Comrs.

Grant County v. Lake County, 17 Or. 453; in court in order to confess judgment.

7 Colo. App. 229. 9. A power of attorney to confess judgment

Mr. Chester B. Bradley amicus curia. cannot be given by a board of county commis

Mr. R. H. Vosburg for Weston county. sioners without statutory authority.

Mr. J. T. Hoop for Sheridan county. (June 30, 1896.)

Potter, J., delivered the opinion of the

copre Crook County for the opinion of the Su- Plaintiff filed its petition in the district court preme Court of certain questions arising in a l for Crook county, praying for an injunction


NOTE.-On the question, What constitutes an in- | pel its payment, see Howard v. Huron (S. D.) 26 L. debtedness of a municipal corporation within the R. A. 493; but attention should be called to the meaning of provisions restricting it, see Beard y. distinction between the conclusiveness of the judgHopkinsville (Ky.) 23 L. R. A. 402, and note.

ment itself and the right to exceed the limitation As to the conclusiveness of a judgment against a fixed for taxes. municipality in a proceeding by mandamus to com

against the collection of a portion of the taxes parties thereto attached, in excess of the limlevied in that county for the year 1895. A de. itation, as fixed by the Constitution and laws murrer was interposed, and upon the bearing of the state of Wyoming? (2) Separate and thereof the court ordered the cause to be re- apart from each of the propositions berein served to this court for its opinion upon certain made, is or is not the defendant entitled to questions certified to be important and diffi- judgment on its agreement with the plaintiff cult. In the year 1895 the board of county Exbibit A, plaintiff's petition) for the sum of commissioners of the county of Crook levied $927.66? (3) For wbat purposes cap a tax be the following taxes: General revenue, 10 mills; levied by the board of the county commisgeneral county school, 2 mills; judgment tax, sioners in excess of the 12-mills limitation, and 37 mills; court-bouse and jail bonds, 2 mills; under the term “Public Indebtedness and Infunding bonds, 24 mills, -amounting in the terest Thereon,” as the term is used in $ 5 of aggregate to 194 mills on the dollar. The only art. 15 of the Constitution ? (4) Can a iax in part of the levy complained of in this action is excess of 12 mills be levied by tbe board of the ibe judgment tax of 3+ mills, wbich is assumed county commissioners for the payment of an to have been levied to pay certain judgments indebtedness growing out of and by reason of rendered against the county. The facts con- the provisions of chapter 6 of the Laws of 1893, nected with the judgments are not, as the entitled "An Act to Encourage the Destrucpleadiogs pow stand, sufficiently disclosed to tion of Predatory Wild Animals?" (5) Cap a definitely indicate the precise nature of the tax in excess of 12 mills be levied by the board claims entering into them. We are not in- of the county commissioners for the purpose formed by the pleadings, either, as to the time of paying warrants issued for salaries of county when, or the court wherein, such judgments officers when the revenue of the county dewere secured. Inferentially it may appear that rived from taxation in previous years has not they were obtained since the admission of the proved sufficient to defray its expenses, and state, and largely upon warrants issued in pay- such warrants are outstanding and unpaid for meni for current expenses of the county, since the want of sufficient funds? (6) Does the the adoption of the Constitution. Indeed, the placing of warrants, issued for legitimate argument in this court was largely confined to county expenses, into judgment, justify the the effect of judgments rendered upon warrants board of the county commissioners in levying so issued, and the taxing power associated a tax in excess of 12 mills with which to pay therewith, although the suggestion was ad- the same? (7) In case judgment has been renvanced by counsel that for all which appeared dered in favor of a landowner for damages in the pleadings funding bonds might bave caused by the location, construction, and openconstituted the source of the judgments. It ing of a public road through his land, can a would seem that no necessity exists for dispute tax be levied to pay such judgment in excess upon the essential facts. It would have been of 12 mills provided by law to be levied for all more satisfactory, therefore, and would per- county purposes, the revenue raised by the 12haps have parrowed the scope of our investi. mill tax being all required and used for county gation, had the issues been fully made up prior purposes? (8) Has ihe board of the county to the reservation to this court, so as to clearly commissioners authority and power under the and without cavil present the questions submit- Constitution and laws of the state to confess and ted by the learned court for our consideration. authorize a confession of judgments against the It is not our duty, however, to pass upon the county? (9) Can a judgment rendered by the demurrer. Our jurisdiction is limited to a de district court of Crook county, having juriscision upon the certified questions, and we are diction over the person and subject matter, be not requested thereby to direct the ruling attacked collaterally in this case? (10) Cannot wbich should be made upon the present condi- the board of the county commissioners levy tion of the pleadings.

the district-court tax for the maintenance of The judgment tax is charged to have been the court in addition to the levy of 12 mills for illegal and void, and levied without authority; county revenue? that the same was pot levied for the payment The second question, viz., "Separate and of the public debt of the county, or the interest apart from each of the propositions herein thereon; and the county had exhausted its made, is or is not the defendant entitled to power to levy taxes for general revenue pur- judgment on its agreement with the plaintiff poses by a levy of the constitutional limit of 12(Exbibit A, plaintiff's petition) for tbe sum of mills for such purposes in the year 1895 and $927.66,"—cannot receive our consideration. each year theretofore since the organization of for the reason that the facts do not sufficiently the state. It is attempted also to attack the appear in the pleadings before us to authorize a judgments upon two grounds: First, that the complete determination thereof upon the merits alleged debts upon which they were obtained of the cause. were void, as baving been contracted, or the For the purposes of convenience, we propose evidences of such indebtedness baving been to discuss the legal questions involved in the issued, in excess of the limit upon county in- various questions, without, as in general, a debtedness establisbed by the Constitution; specific reference to any particular question, second, that the said judgments were pro or the order in which they are presented. A cured through the consentand confession of the majority of the certified questions do not board of county commissioners contrary to law. admit of categorical answers. A careful eluci

The questions certified for our decision are dation of the views entertained by the court as follows: (1) Is the levy of the board of covering the subject matters of the questions county commissioners of the county of Crook ought to, and, we conceive, will, be sufficiently of 37 mills of judgment tax, as set forth in indicative of our opinion upon the questions plaintiff's petition, and the agreement of themselves.

Involved in the questions thus submitted is county, to be ascertained by the last assessthe construction of the various constitutional ment for territorial and county taxes previous provisions affecting the power of counties to to the incurring of such indebtedness. Stat. incur indebtedness and levy taxes. The 1st Sess. 49th Cong. chap. 818, p. 171; Rev. gravity of the interests which may depend Stat. Wyo. 1887, p. 39. The language of that upon a determination of these questions has act is as follows: "That no political or municnot been underestimated, and with a keen ap- ipal corporation, county, or other subdivision preciation of the responsibility resting upon the in any of the territories of the United States courts in such matters it is only after studious shall ever become indebted in any manner or and mature deliberation that we have arrived for any purpose to any amount in the aggre. at our conclusions. Upon the argument much gate, including existing, indebtedness exceedattention was devoted by counsel to the policy ing,” etc. Acknowledging this last limitation of the constitutional restrictions upon public upon county indebtedness, the Constitution exindebtedness and taxation, but the courts pos- pressly authorized the bonding of the public sess no control over matters of mere policy. debt of any county in any sum within the If the people of the commonwealth by adopt- congressional limit of 4 per cent. Article 16, ing a Constitution have committed themselves $ 3. As a primary proposition it must be to a mistaken policy, the only remedy is ap manifest that the framers of the Constitution amendment, by constitutional methods, of did not propose to afford vitality to any indebtthat instrument. Within the province of the edness incurred in excess of the limitation legislature, recourse must be bad to that body declared by Congress. In case any county had for the correction of any errors of policy which become so indebted, it was not permitted to may have induced its enactments. The juris. issue bonds to pay such excess; and no other diciion of the courts extends only to the con constitutional provision refers to it. This may struction and enforcement of the Constitution become an important consideration. County and laws as they exist. That jurisdiction indebtedness amounting to, but not exceeding, should be zealously guarded, but not used as 4 per cent on the assessed value of taxable a cloak to encroach upon the functions of the property was therefore recognized as valid and other departments of government. The pro-enforceable; and, as no limitation was placed visions of the Constitution controlling the mat- by the Constitution upon the power to levy ters before us are as follows:

taxes to pay the valid public debt of a county, Article 15, $ 5: "For county revenue there means were allowed by which the same could shall be levied annually a tax not to exceed 12 be eventually satisfied. It is also clear that in mills on the dollar for all purposes including authorizing the funding of county indebted. general school tax, exclusive of state revenue, ness in an amount not exceeding 4 per cent, all except for the payment of its public debt and manner of indebtedness, whether for imposed the interest thereon. An additional tax of $2 or voluntary obligations, was understood to be for each person between the ages of twenty. included within the congressional limitation, one and fifty years, inclusive, shall be annually it being obvious that the intention was to perlevied for county school purposes.”

mit the bonding of all legal and valid debtsArticle 16, $ 3: “No county in the state of existing at the time of the adoption of the ConWyoming shall in any manner create any institution, and that it was not the purpose to debtedness exceeding 2 per centum on the repudiate any valid obligation or liability. assessed value of taxable property in such Upon future indebtedness another limit was county, as shown by the last general assess placed by the Constitution. First, it is pro. ment, preceding; provided, however, that any vided that no county shall in any manner county, city, town, village, or other subdivision create any indebtedness exceeding, 2 per thereof in the state of Wyoming, may bond its centum on the assessed value of taxable proppublic debt existing at the time of the adoption erty in such county, as shown by the last general of this Constitution, in any sum pot exceeding assessment, preceding; second, no debt in ex4 per centum on the assessed value of the taxa. cess of the taxes for the current year shall in ble property in such county, city, town, any manner be created by any county, unless village, or other subdivision as shown by the the proposition to create such debt shall have last general assessment for taxation."

been submitted to a vote of the people, and Article 16, $ 4: "No debt in excess of the by them approved. Without reference now to taxes for the current year shall, in any man. the classes of indebtedness included within per, be created by any county or subdivision these restrictions, if any distinction in that rethereof, or any city, town, or village, or any spect exists, it is apparent that, if the indebtedsubdivision thereof, in the state of Wyoming, ness of a county has reached or exceeds 2 per unless the proposition to create such debt sball centum on the assessed value of taxable prop. have been submitted to a vote of the people erty, such county is powerless to create any thereof and by them approved.”

debt in excess of the taxes for the current year, Other provisions, which may affect the con- either with or without a submission of the struction to be given to the sections above matter to a vote_of the people, or their ap: quoted, will be referred to as we proceed. proval thereof. The absolute limit of lawful

We are to consider the power and autbority indebtedness being reached, it cannot be exof a county in this state, first to create indebt-ceeded. If, however, the indebtedness of a edness, and, second, to levy taxes. Prior to county tbus restrained is less than sach 2 per the admission of Wyoming as a state, munic- centum, then there arises the further prohibiipal, and county indebtedness in this as well as tion against the creation of any debt in excess other territories was limited by congressional of the taxes for the current year without first enactment to 4 per centum on the value of the submitting the same to a vote of the people,

axable property within such corporation or and thereby securing their approval; but, in such case, if a proposition of that character is constitutional provision prohibiting any county so submitted to and approved by the people of from incurring in any manner or for any purthe county, then, so far as concerns the consti pose any indebtedness or liability exceeding in tutional provisions, such county becomes au- any year the income and revenue provided thorized to create the additional debt, it, to- for it for such year without the assent of two gether with the existing indebtedness, it will thirds of the qualified voters, that it referred not exceed 2 per centum on the assessed value only to an indebtedness or liability which the of the taxable property within the county. municipality bas itself incurred; tbat it limited Thus the two sections (ss 3 and 4 of art. 16) the power of the municipality as to any inare harmonious, and their meaning readily debtedness which it bas a discretion to incur, discerned. We apprehend no difficulty has or not to incur; and the opinion is expressed arisen in reference to the obvious purport of by the court in that case that such are the clear the Constitution in this regard. The intention intent and meaning of the provision. The evidently was: First, to place an absolute effect of tbat decision is that if, in expending limit upon the debt included in the provisions: the revenues of any year, by a municipality in and, second, to forbid any such debt to be paying salaries of officers and other expenses, created in any year, even within the absolute ihe latter including such as bave been incurred limit, if in excess of the taxes of the current through the discretion of the local authorities, year, without the sanction of the people of the such revenues are exhausted, salaries and other county; and when the final limit was reached imposed obligations thereafter are valid, but to require the affairs of the county to be con- no other liability can then be incurred; and ducted practically upon a cash basis.

what more than one balf of the qualified voters The more serious question, however, is, What are powerless to accomplish, the legislature, debts are included within these constitutional which might not be strongly representative of prohibitions? It is insisted by counsel for de- the particular municipality, may do; ibat the fendants that they do not embrace any debts legislature is not amenable to ibe restrictive imposed by law, or such as may be termed provisions of the Constitution, and it may "compulsory obligations, such as salaries of fasten numerous burdens in the way of indebi. officers, which are definitely established by the edness upon the people, which the local aulegislature. It is urged that the Constitution thorities are without authority to incur upless requires the legislature to fix the amount of the two thirds of the voters shall acquiesce therein. salaries of county officers, and that when thus On the other band, the courts of other states fixed the obligation is one which the county and the Supreme Court of the United States bas not created; and it is contended that the bave reached a different conclusion under restriction upon indebtedness applies oply to somewhat similar constitutional provisions. such liabilities as have been incurred by the The Constitution of Missouri provides that no county authorities voluntarily, and, therefore, county shall be allowed to become indebted in tbat, in determining whether the debt of a any manner, or for any purpose, to an amount county exceeds the limit established by the exceeding in any year the income and revenue Constitution, the amount of the salaries of its provided for such year without the assent of officers, and warrants outstanding to pay them, iwo thirds of the voters thereof, nor, with are not to be considered; that a county in its such assent, to an amount in the aggregate corporate capacity, acting through its commis- exceeding 5 per cent on the value of the taxable sioners, is not prohibited from creating any property therein, etc. In the case of Barnard indebtedness which, exclusive of such imposed v. Knox County, 105 Mo. 382, 13 L. R. A. 244, or compulsory obligations, does not in the one the county was sued upon a warrant issued for case exceed the taxes for the current year, in books and stationery bought for the use of the the other 2 per centum upon the assessed value clerk of the county court, wbicb the law reof the taxable property in the county. We quired to be furnished. The defense was inbave approached this question with some besi- terposed that the debt was created after the tation, as it is impossible not to be impressed county warrants exceeded the revenue of the with its great significance. The argument year in question. Anticipating such defense briefly adverted to is not without some force, the plaintiff had pleaded that the debt was and rests to some extent upon precedent. created by law, and was not the act of the Grant County v. Lake County, 17 Or. 453; county authorities. The supreme court of that Lewis v. Widber, 99 Cal. 412. In the case of state had previously beld that there was a Grant County v. Lake County, supra, the su- distinction between compulsory obligations preme court of Oregon, construing the pro- and debts voluntarily contracted by the county. visions of the Constitution of that state prohib- See Potter v. Douglas County, 87 Mo. 240. In iting a county from creating any debts or the present case the former was expressly overliabilities wbich shall singly or in the aggregate ruled, and a contrary opinion expressed. The exceed the sum of $5,000, except to suppress court says, after quoting the constitutional ipsurrection or repel invasion, held that such provision: “The language just quoted is clear inbibition did not imply that all debts and and explicit, and construes itself. It is broad liabilities of a county over the sum named were and comprehensive as to the character of the pecessarily obnoxious to the constitutional pro- indebtedness. It includes indebtedness created vision: and in the course of the opinion the in any manner or for any purpose. This strong learned judge said: “Said provision of the and comprehensive language admits of no dis. Constitution, as I view it, only applies to debts tinction between debts created by a county and liabilities wbich a county, in its corporate court and debts created by law. In a sense ail character, and as an artificial person, volunta- county debts are created by law, for the counrily creates.” In Levis v. Widber, 99 Cal. 412, ties possess those powers, and those only, which the supreme court of California beld, under a are conferred upon them by tbe Constitution and laws of the state. While it is the duty of ence in words is concerned, it would have the the county court to care for paupers and insane like effect in the other case. In the California persons, and to build bridges and repair roads, and Oregon cases it does not appear that there still the county court is governed by the statute was also a constitutional limitation upon the in the performance of these duties. Debts means of raising theannual revenue,asis the case incurred for such purposes may be called debts with us, which might aid or control the concreated by law, as well as debts incurred by struction to be given to the debt limitation. the county clerk for books and stationery. Recurring to our own Constitution, we are reUnder a somewhat similar provision in the quired to give that effect to its provisions which Constitution of Colorado probibiting a county will barmonize all the parts bearing upon the from becoming indebted, the Supreme Court question. An inspection of the limitations of the United States in Lake County Comrs. v. placed upon indebtedness and taxation will Rollins, 130 U. S. 662, 32 L. ed. 1060, in demonstrate with satisfactory clearness the obreversing the case of Rolling v. Lake County, ject, purpose, and intent which found expres34 Fed. Rep. 845. in speaking upon this ques. sion in the provisions under consideration. tion said: "Neither can we assent to the We have already adverted to the limitation position of the court below that there is, as to placed by Congress upon municipal and county this case, a difference between indebtedness indebtedness which controlled wbile we reincurred by contracts of the county and that mained in a territorial condition, and the fact form of debt denominated 'compulsory obliga- that all debts which could during that period tions.' The compulsion was imposed by the have been lawfully incurred were given recog. legislature of the state, even if it can be said nition, and provision inserted in the Constitucorrectly that the compulsion was to incur tion permitting the funding of the same. That debt; and the legislature could no more impose no indebtedness theretofore incurred exceeding it than the county could voluntarily assume it. 4 per centum (the congressional limitation) was as against the disability of a constitutional thus recognized, clearly displaying a constituprobibition. Nor does the fact that the Con- tional interpretation of the former limitation, stitution provided for certain county officers, embracing by necessary inference in such lim. and authorized the legislature to fix their com itation all debts for salaries of officers, and pensation and that of other officials, affect the other imposed or so-called “compulsory” obquestion.” The action in wbich this opinion ligations. The Constitution in the same secwas delivered was brought upon warrants tion establishes a smaller limit upon future issued in payment of fees of witnesses, jurors, debts, reducing the limitation to 2 per centconstables, and sheriff. A clause in the Con. um; and, as if to emphasize the intention to stitution of Illinois provides that “po county, com pel the strictest economy in the conduct of city,” etc., "shall be allowed to become in. county and municipal affairs, further required debted in any manner or for any purpose.”

.” that no debt in excess of the taxes for any year etc. In that state it is held that in respect to should be created without the approval of the such probibition no distinction exists between people. Like restrictions are placed upon the debts imposed by law and those voluntarily creation of debts by the state. In making proassumed, and that it makes no difference vision for taxation, the Constitution again resorts whether the debts are incurred for necessary to the method of limitation. For county revcurrent expenses or not. Prince v. Quincy, 105 pue, for all purposes except the payment of III. 138, 44 Am. Rep. 785, 105 Ill. 215; Spring the public debts and interest thereon, the rate field v. Edwards, 84 Il. 626; Lar v. People, of taxation is limited to 12 mills. If it is to Huck, 87 III, 385. A similar construction is be assumed that the debt limitation does not given to the constitutional prohibition against include any imposed liabilities, then the tax of county and municipal indebtedness in Iowa. 12 mills was merely to provide revenue to Council Bluff: v. Stewart, 51 Iowa, 385; Na- satisfy voluntary obligations, if they should tional State Bank v. Marshall Independent amount to enough to consume all the funds Dist. 39 Iowa, 490; French v. Burlington, 42 raised by such levy for county revenue; and as Iowa, 614. See also Guthrie v. New Vienna the imposed obligations would be unpaid, a Bank (Okla.) 38 Pac. 4, where this question is fund each year might then be provided by a fully and learnedly discussed.

tax without limit to pay them as a part of the We

e are not unmindful of the difference in public debt. It must be manifest that salaries language between the Constitution of this state of public officers, the fees of witnesses and and that of some of the other states above rejurors, and such other expenses as may be said ferred to, but in respect to the present inquiry to be compulsory, which relate to the ordinary we fail to observe that the courts have drawn or management of county affairs, are properly indicated any distinction by reason of such dif.chargeable to and payable out of the general ference in language. The object in either case county revenue; and the conclusion is irresistis the limitation upon municipal indebtedness. ible that in providing autbority to tax for To become indebted” would seem to be no county revenue for all purposes the section broader nor to be any more restrictive than to unequivocally comprehends the furnishing by "create a debt." If a county is probibited from that particular tax of funds out of which ail "becoming indebted,” we are not able to im. obligations ordinarily and properly chargeable part to that language any greater restriction to and payable out of the general annual county upon the character of the indebtedness than if revenue shall be discharged, unless, indeed, at the prohibition is against the “creation of a the time any such obligations are contracted, debt.” If the constitutional limitation operates other provisions are made in pursuance of the to restrain the legislature from imposing obli- Constitution and laws having specific reference gations upon a county in excess of the limita- to their future payment in another manner and tion in the one case, so far as the mere differ- out of other funds, as might be the case of the

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