against the collection offa portion of the taxes levied in that county for the year 1895. A demurrer was interposed, and upon the hearing thereof the court ordered the cause to be reserved to this court for its opinion upon certain questions certified to be important and difficult. In the year 1895 the board of county commissioners of the county of Crook levied the following taxes: General revenue, 10 mills; general county school, 2 mills; judgment tax, 3 mills; court-house and jail bonds, 2 mills; funding bonds, 24 mills, amounting in the aggregate to 194 mills on the dollar. The only part of the levy complained of in this action is the judgment tax of 3 mills, which is assumed to have been levied to pay certain judgments rendered against the county. The facts connected with the judgments are not, as the pleadings now stand, sufficiently disclosed to definitely indicate the precise nature of the claims entering into them. We are not informed by the pleadings, either, as to the time when, or the court wherein, such judgments were secured. Inferentially it may appear that they were obtained since the admission of the state, and largely upon warrants issued in payment for current expenses of the county, since the adoption of the Constitution. Indeed, the argument in this court was largely confined to the effect of judgments rendered upon warrants so issued, and the taxing power associated therewith, although the suggestion was advanced by counsel that for all which appeared in the pleadings funding bonds might have constituted the source of the judgments. It would seem that no necessity exists for dispute upon the essential facts. It would have been more satisfactory, therefore, and would perhaps have narrowed the scope of our investigation, had the issues been fully made up prior to the reservation to this court, so as to clearly and without cavil present the questions submitted by the learned court for our consideration. It is not our duty, however, to pass upon the demurrer. Our jurisdiction is limited to a decision upon the certified questions, and we are not requested thereby to direct the ruling which should be made upon the present condition of the pleadings. The judgment tax is charged to have been illegal and void, and levied without authority; that the same was not levied for the payment of the public debt of the county, or the interest thereon; and the county had exhausted its power to levy taxes for general revenue purposes by a levy of the constitutional limit of 12 mills for such purposes in the year 1895 and each year theretofore since the organization of the state. It is attempted also to attack the judgments upon two grounds: First, that the alleged debts upon which they were obtained were void, as having been contracted, or the evidences of such indebtedness having been issued, in excess of the limit upon county indebtedness established by the Constitution; second, that the said judgments were procured through the consent and confession of the board of county commissioners contrary to law. The questions certified for our decision are as follows: (1) Is the levy of the board of county commissioners of the county of Crook of 3 mills of judgment tax, as set forth in plaintiff's petition, and the agreement of parties thereto attached, in excess of the limitation, as fixed by the Constitution and laws of the state of Wyoming? (2) Separate and apart from each of the propositions berein made, is or is not the defendant entitled to judgment on its agreement with the plaintiff (Exhibit A, plaintiff's petition) for the sum of $927.66? (3) For what purposes can a tax be levied by the board of the county commissioners in excess of the 12-mills limitation, and under the term "Public Indebtedness and Interest Thereon," as the term is used in § 5 of art. 15 of the Constitution? (4) Can a tax in excess of 12 mills be levied by the board of the county commissioners for the payment of an indebtedness growing out of and by reason of the provisions of chapter 6 of the Laws of 1893, entitled "An Act to Encourage the Destruction of Predatory Wild Animals?" (5) Can a tax in excess of 12 mills be levied by the board of the county commissioners for the purpose of paying warrants issued for salaries of county officers when the revenue of the county de rived from taxation in previous years has not proved sufficient to defray its expenses, and such warrants are outstanding and unpaid for the want of sufficient funds? (6) Does the placing of warrants, issued for legitimate county expenses, into judgment, justify the board of the county commissioners in levying a tax in excess of 12 mills with which to pay the same? (7) In case judgment has been rendered in favor of a landowner for damages caused by the location, construction, and opening of a public road through his land, can a tax be levied to pay such judgment in excess of 12 mills provided by law to be levied for all county purposes, the revenue raised by the 12mill tax being all required and used for county purposes? (8) Has the board of the county commissioners authority and power under the Constitution and laws of the state to confess and authorize a confession of judgments against the county? (9) Can a judgment rendered by the district court of Crook county, having jurisdiction over the person and subject-matter, be attacked collaterally in this case? (10) Cannot the board of the county commissioners levy the district-court tax for the maintenance of the court in addition to the levy of 12 mills for county revenue? The second question, viz.: "Separate and apart from each of the propositions herein made, is or is not the defendant entitled to judgment on its agreement with the plaintiff (Exhibit A, plaintiff's petition) for the sum of $927.66,"-cannot receive our consideration. for the reason that the facts do not sufficiently appear in the pleadings before us to authorize a complete determination thereof upon the merits of the cause. For the purposes of convenience, we propose to discuss the legal questions involved in the various questions, without, as in general, a specific reference to any particular question, or the order in which they are presented. A majority of the certified questions do not admit of categorical answers. A careful elucidation of the views entertained by the court covering the subject-matters of the questions ought to, and, we conceive, will, be sufficiently indicative of our opinion upon the questions 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 and mature deliberation that we have arrived at our conclusions. Upon the argument much attention was devoted by counsel to the policy of the constitutional restrictions upon public indebtedness and taxation, but the courts possess no control over matters of mere policy. If the people of the commonwealth by adopting a Constitution have committed themselves to a mistaken policy, the only remedy is an amendment, by constitutional methods, of that instrument. Within the province of the legislature, recourse must be had to that body for the correction of any errors of policy which may have induced its enactments. The juris diction of the courts extends only to the construction and enforcement of the Constitution and laws as they exist. That jurisdiction should be zealously guarded, but not used as a cloak to encroach upon the functions of the other departments of government. The provisions of the Constitution controlling the matters before us are as follows: Article 15, 5: "For county revenue there shall be levied annually a tax not to exceed 12 mills on the dollar for all purposes including general school tax, exclusive of state revenue, except for the payment of its public debt and the interest thereon. An additional tax of $2 for each person between the ages of twentyone and fifty years, inclusive, shall be annually levied for county school purposes." Article 16, § 3: "No county in the state of Wyoming shall in any manner create any indebtedness exceeding 2 per centum on the assessed value of taxable property in such county, as shown by the last general assessment, preceding; provided, however, that any county, city, town, village, or other subdivision thereof in the state of Wyoming, may bond its public debt existing at the time of the adoption of this Constitution, in any sum not exceeding 4 per centum on the assessed value of the taxable property in such county, city, town, village, or other subdivision as shown by the last general assessment for taxation." Article 16, § 4: "No debt in excess of the taxes for the current year shall, in any manner, be created by any county or subdivision thereof, or any city, town, or village, or any subdivision thereof, in the state of Wyoming, unless the proposition to create such debt shall have been submitted to a vote of the people thereof and by them approved." Other provisions, which may affect the construction to be given to the sections above quoted, will be referred to as we proceed. We are to consider the power and authority of a county in this state, first to create indebtedness, and, second, to levy taxes. Prior to the admission of Wyoming as a state, municipal, and county indebtedness in this as well as other territories was limited by congressional enactment to 4 per centum on the value of the axable property within such corporation or shall ever become indebted in any manner or for any purpose to any amount in the aggre gate, including existing indebtedness exceeding," etc. Acknowledging this last limitation upon county indebtedness, the Constitution expressly authorized the bonding of the public debt of any county in any sum within the congressional limit of 4 per cent. Article 16, § 3. As a primary proposition it must be manifest that the framers of the Constitution did not propose to afford vitality to any indebtedness incurred in excess of the limitation declared by Congress. In case any county had become so indebted, it was not permitted to issue bonds to pay such excess; and no other constitutional provision refers to it. This may become an important consideration. County indebtedness amounting to, but not exceeding, 4 per cent on the assessed value of taxable property was therefore recognized as valid and enforceable; and, as no limitation was placed by the Constitution upon the power to levy taxes to pay the valid public debt of a county, means were allowed by which the same could be eventually satisfied. It is also clear that in authorizing the funding of county indebtedness in an amount not exceeding 4 per cent, all manner of indebtedness, whether for imposed or voluntary obligations, was understood to be included within the congressional limitation, it being obvious that the intention was to permit the bonding of all legal and valid debts. existing at the time of the adoption of the Constitution, and that it was not the purpose to repudiate any valid obligation or liability. Upon future indebtedness another limit was placed by the Constitution. First, it is provided that no county shall in any manner create any indebtedness exceeding 2 per centum on the assessed value of taxable property in such county, as shown by the last general assessment, preceding; second, no debt in excess of the taxes for the current year shall in any manner be created by any county, unless the proposition to create such debt shall have been submitted to a vote of the people, and by them approved. Without reference now to the classes of indebtedness included within these restrictions, if any distinction in that respect exists, it is apparent that, if the indebtedness of a county has reached or exceeds 2 per centum on the assessed value of taxable property, such county is powerless to create any debt in excess of the taxes for the current year, either with or without a submission of the matter to a vote of the people, or their approval thereof. The absolute limit of lawful indebtedness being reached, it cannot be exceeded. If, however, the indebtedness of a county thus restrained is less than such 2 per centum, then there arises the further prohibition against the creation of any debt in excess of the taxes for the current year without first submitting the same to a vote of the people, and thereby securing their approval; but, in such case, if a proposition of that character is so submitted to and approved by the people of the county, then, so far as concerns the consti tutional provisions, such county becomes authorized to create the additional debt, if, together with the existing indebtedness, it will not exceed 2 per centum on the assessed value of the taxable property within the county. Thus the two sections (3 and 4 of art. 16) are harmonious, and their meaning readily discerned. We apprehend no difficulty has arisen in reference to the obvious purport of the Constitution in this regard. The intention evidently was: First, to place an absolute limit upon the debt included in the provisions; and, second, to forbid any such debt to be created in any year, even within the absolute limit, if in excess of the taxes of the current year, without the sanction of the people of the county; and when the final limit was reached to require the affairs of the county to be conducted practically upon a cash basis. The more serious question, however, is, What debts are included within these constitutional prohibitions? It is insisted by counsel for defendants that they do not embrace any debts imposed by law, or such as may be termed "compulsory obligations," such as salaries of officers, which are definitely established by the legislature. It is urged that the Constitution requires the legislature to fix the amount of the salaries of county officers, and that when thus fixed the obligation is one which the county has not created; and it is contended that the restriction upon indebtedness applies only to such liabilities as have been incurred by the county authorities voluntarily, and, therefore, that, in determining whether the debt of a county exceeds the limit established by the Constitution, the amount of the salaries of its officers, and warrants outstanding to pay them, are not to be considered; that a county in its corporate capacity, acting through its commissioners, is not prohibited from creating any indebtedness which, exclusive of such imposed or compulsory obligations, does not in the one case exceed the taxes for the current year, in the other 2 per centum upon the assessed value of the taxable property in the county. We have approached this question with some hesitation, as it is impossible not to be impressed with its great significance. The argument briefly adverted to is not without some force, and rests to some extent upon precedent. Grant County v. Lake County, 17 Or. 453; Lewis v. Widber, 99 Cal. 412. In the case of Grant County v. Lake County, supra, the supreme court of Oregon, construing the provisions of the Constitution of that state prohibiting a county from creating any debts or liabilities which shall singly or in the aggregate exceed the sum of $5,000, except to suppress insurrection or repel invasion, held that such inhibition did not imply that all debts and liabilities of a county over the sum named were necessarily obnoxious to the constitutional provision; and in the course of the opinion the learned judge said: "Said provision of the Constitution, as I view it, only applies to debts and liabilities which a county, in its corporate character, and as an artificial person, voluntarily creates." In Lewis v. Widber, 99 Cal. 412, the supreme court of California held, under a constitutional provision prohibiting any county from incurring in any manner or for any purpose any indebtedness or liability exceeding in any year the income and revenue provided for it for such year without the assent of two thirds of the qualified voters, that it referred only to an indebtedness or liability which the municipality has itself incurred; that it limited the power of the municipality as to any indebtedness which it has a discretion to incur, or not to incur; and the opinion is expressed by the court in that case that such are the clear intent and meaning of the provision. The effect of that decision is that if, in expending the revenues of any year, by a municipality in paying salaries of officers and other expenses, the latter including such as have been incurred through the discretion of the local authorities, such revenues are exhausted, salaries and other imposed obligations thereafter are valid, but no other liability can then be incurred; and what more than one half of the qualified voters are powerless to accomplish, the legislature, which might not be strongly representative of the particular municipality, may do; that the legislature is not amenable to the restrictive provisions of the Constitution, and it may fasten numerous burdens in the way of indebtedness upon the people, which the local authorities are without authority to incur unless two thirds of the voters shall acquiesce therein. On the other hand, the courts of other states and the Supreme Court of the United States bave reached a different conclusion under somewhat similar constitutional provisions. The Constitution of Missouri provides that no county shall be allowed to become indebted in any manner, or for any purpose, to an amount exceeding in any year the income and revenue provided for such year without the assent of two thirds of the voters thereof, nor, with such assent, to an amount in the aggregate exceeding 5 per cent on the value of the taxable property therein, etc. In the case of Barnard v. Knox County, 105 Mo. 382, 13 L. R. A. 244, the county was sued upon a warrant issued for books and stationery bought for the use of the clerk of the county court, which the law required to be furnished. The defense was interposed that the debt was created after the county warrants exceeded the revenue of the year in question. Anticipating such defense the plaintiff had pleaded that the debt was created by law, and was not the act of the county authorities. The supreme court of that state had previously held that there was a distinction between compulsory obligations and debts voluntarily contracted by the county. See Potter v. Douglas County, 87 Mo. 240. În the present case the former was expressly overruled, and a contrary opinion expressed. The court says, after quoting the constitutional provision: "The language just quoted is clear and explicit, and construes itself. It is broad and comprehensive as to the character of the indebtedness. It includes indebtedness created in any manner or for any purpose. This strong and comprehensive language admits of no dis tinction between debts created by a county court and debts created by law. In a sense all county debts are created by law, for the counties possess those powers, and those only, which are conferred upon them by the 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 the annual revenue, as is 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 prohibiting a county will harmonize 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 Rollins 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 while 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 recoglegislature 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 constituprohibition. 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 limand 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 which 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 "no county, compel 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 prohibition 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 nue, for all purposes except the payment of Ill. 138, 44 Am. Rep. 785, 105 Ill. 215; Spring the public debts and interest thereon, the rate field v. Edwards, 84 Ill. 626; Law v. People, of taxation is limited to 12 mills. If it is to Huck, 87 Ill. 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 Bluffs 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 public debt. It must be manifest that salaries of public officers, the fees of witnesses and jurors, and such other expenses as may be said to be compulsory, which relate to the ordinary management of county affairs, are properly chargeable to and payable out of the general county revenue; and the conclusion is irresistible that in providing authority to tax for county revenue for all purposes the section unequivocally comprehends the furnishing by that particular tax of funds out of which all obligations ordinarily and properly chargeable to and payable out of the general annual county revenue shall be discharged, unless, indeed, at the time any such obligations are contracted, other provisions are made in pursuance of the Constitution and laws having specific reference to their future payment in another manner and out of other funds, as might be the case of the We are not unmindful of the difference in language between the Constitution of this state and that of some of the other states above referred to, but in respect to the present inquiry we fail to observe that the courts have drawn or indicated any distinction by reason of such difference in language. The object in either case is the limitation upon municipal indebtedness. To become indebted" would seem to be no broader nor to be any more restrictive than to "create a debt." If a county is prohibited from "becoming indebted," we are not able to impart to that language any greater restriction upon the character of the indebtedness than if the prohibition is against the "creation of a debt." If the constitutional limitation operates to restrain the legislature from imposing obligations upon a county in excess of the limitation in the one case, so far as the mere differ WYOMING SUPREME COURT. creation of a debt in excess of the taxes in any | which they incur are the debts of the county, JUNE, year by consent of the people, the county and the authority they exercise is such as having authority to incur such a liability. In resides in them as the officers and representatives such case it would not be intended to charge of the county." such debt to the ordinary county revenue. Salaries being unquestionably chargeable ordi- as accurate to say that the legislature is the v. Barnes, 123 Ind. 403. It may be equally Tippecanoe County Comrs. narily to county revenue, and the tax for county, within the sphere of its control, as to county revenue being a limited tax, it would make that application to the commissioners. seem to follow that the restriction upon incur- In all matters of public concern it would seem ring liabilities in excess of current taxes includes appropriate to attach to the legislature the such salaries and other claims against a county character of representatives of the county itself, similarly situated. Had this not been the whenever it assumes control of any of its intention, provision would have surely been interests, either in pursuance of constitutional made for an additional tax, clearly expressed, requirement or otherwise; and that in doing so to pay such an important class of liabilities as it acts for the counties in about the same way salaries of officers. We are of the opinion that that the local board does regarding those matno county board, money being in the general ters committed to the direction of the latter; fund, raised by the tax for general county and thus, if an obligation is imposed upon the revenue, ever hesitated to allow and pay salaries county, it cannot be said to be compulsory to out of that fund. The limitation upon taxa- any greater extent than if imposed by the tion, then, being upon the power to raise a county board. "Municipal corporations" (and fund out of which salaries are payable, must not the restriction upon the right to create cussion, we include counties) "are of a twofold in this designation, so far as concerns this disdebts in excess of the taxes include in the character, -the one public, as regards the state term "debts" all ordinary expense of the at large, in so far as they are its agents in governcounty, inclusive of salaries? We think so. ment; the other private, in so far as they are to The evident object of all these provisions was provide the local necessities and conveniences an economical administration of public affairs, for the citizens." which is rendered more emphatic, if possible, 120, 28 L. R. A. 783. In fixing salaries of Davock v. Moore, 105 Mich. by the maximum placed upon the salaries of county officers the legislature deals with counthe various county officials. Article 14. In respect to its officers and the duties they are ties as one of the agencies of government. required to perform the county is public in character. The Supreme Court of the United States in Lake County v. Rollins, supra, indicated that from an accurate standpoint the compulsion arising on account of imposed obligations might not be to incur debt. not result in a debt; and rather by way of sugevident that such compulsion in all cases does It is gestion than argument, it may be said that the character of debt in excess of taxes as applied to unpaid salaries does not necessarily arise from the enactment of the law providing their amount and times of payment, but that it is possible the allowance of other claims within the discretionary control of the board, and the use of funds in the general fund, or raised by the county revenue tax to satisfy such. claims, may so deplete the treasury as to create the inability to pay the salaries or other socalled "imposed" liabilities. Therefore it may not be entirely accurate to say that the debt is created by the legislature, even if any distinction should be thought to exist respecting this matter within the terms of the constitutional provision. It is assumed that the board of county commissioners constitutes the county, and that a liability imposed by law is not the creation of a debt by the county, not being within the dis cretion of the board. It is doubtful whether the board does constitute the county in the strict sense. As an official board it is charged with many duties and invested with powers respecting the management of the ordinumerous nary, and particularly the local, affairs of the county. This authority, however, is not exclusive in all matters; it is, after all, not boundless. Some of the important interests of a county are not permitted to be delegated to the board, viz., the matter of compensation to be paid to its public officials; others are under the control of independent officers, such as the collection of taxes, although the board may exercise a qualified supervision over the conduct of the officers charged with such duties. The supreme court of Indiana, in discussing the relation of the board to the county, said: "We know that comprehensive powers are conferred upon county commissioners; we know, too, that they are, in a sense, the county. But, after all, the county is no more than a public corporation created by statute, and deriving its powers from the legislature. If a county is not given power to fix the fees of public officers by statute, it can possess no such power. It adds nothing, therefore, to the strength of the appellee's position to affirm that the board of commissioners is the county. But it is not strictly true that the board is the county. It can by no possibility be true that the board is the county, for in a just sense the inhabitants of the organized locality constitute the county. In strict accuracy the commis sioners are public officers representing the county, with powers and duties defined and prescribed by statute. The money which they control is the money of the county, the debts . R. A. call attention to some very pertinent remarks |