people, or in case the maximum limit has been | The application of the converse of this proporeached, then, with or without such approval, sition has not been infrequent. In the case of such indebtedness is clearly not a part of the Ralls County Ct. v. United States, 105 U. S. public debt, but the same has been incurred 735, 26 L. ed. 1221, the court said: "While the for current expenses, which in the case of such coupons are merged in the judgment, they cara county cannot in any event exceed the rev- ried with them into the judgment all the remenue for such year. There is no method by edies which in law formed a part of their conwhich such liabilities can have imparted to tract obligations, and these remedies may still them voluntarily the character of public debts. be enforced in all appropriate ways, notwithIf a judgment is obtained upon any such claim, standing the change in the form of the debt.” the fact must yet remain that it represents a This language was used in a cause wherein it liability incurred for current expenses which was sought by mandamus to compel the levy should have been confined within the limits of of a tax to pay a judgment. The opinion in the current taxes, to provide for the payment that case also recognizes that courts are powerof which the Constitution bas afforded only a less to require a tax to be levied, even to pay a limited power of taxation.

judgment in excess of the constitutional or The statutory provision with reference to the legislative limitation upon the taxing power. payment of a judgment by tax does not con. The same learned court in another case of like template a tax in excess of the limitation, and character, in speaking upon this question, said: did not permit tas for that purpose in excess “So, too, if the municipality has n o power, of the statutory limit anterior to the adoption either by express grant or by implication, to of the Constitution. Much less could the legis- raise money by taxation to pay the bond, the lature contravene the positive restrictions of the holder cannot require the municipal authorities Constitution. If the judgments are rendered to levy a tax for that purpose.

We upon claims which should have been paid out have no power by mandamus to compel a muof the revenue raised by the tax which is con picipal corporation to levy a tax which the fined to 12 mills, they must be paid, if at all, law does not authorize. United States v. by a tax levied for such purpose; the aggre. Macon County Ct. 99 U. S. 591, 25 L. ed. 333. gate tax for county revenue not to exceed the “But mandamus will not lie to compel the maximum limit. The judgments being valid, levy of a tax in excess of the legal limitation." the legality of the debt is settled until such Cooley, Taxn. 2d ed. p. 738. The following judgments are set aside in some direct pro- authorities are also in point: Brownsville Tarceeding, and therefore, within the limitation ing Dist. Comrs. v. Loague, 129 U. S. 493, 32 for county revenue, a tax may be levied to L. ed. 780; Arnold v. Hawkins, 95 Mo. 569; pay the same. This we apprehend to be the Black v. McGonigle, 103 Mo. 192; Trull v. plain intent of the Constitution. Any other Madison County Comrs. 72 N. C. 388; French course would amount to an evasion of its v. New Hanover County Comrs. 74 N. C. 692; terms. A different construction would au- Carroll County Supers. v. United States, 85 U. thorize such a management of county affairs S. 18 Wall. 71, 21 L. ed. 771; Re House Roll as to exhaust tbe county revenue each year, to 284, 31 Neb. 505; Clark v. Davenport, 14 incur additionai obligations ordinarily payable Iowa, 494; Iowa Railroad Land Co. v. Sac out of such revenue, permit prosecution of such County, 39 Iowa, 137; Sterling School Furniclaims to judgment, and the levy of a special ture Co. v. Harvey, 45 Iowa, 466; State, Shackeltax to pay them; and this could be repeated ton, v. Guttenberg, 39 N. J. L. 660; Union P. annually, thus completely evading, if not op. | R. Co. v. Buffalo County Comrs. 9 Neb. 449; erating to effectually nullify, the constitutional | Osborne County Comrs. v. Blake, 25 Kan. 357; limitation. The effect would be, as all must State, Reed, v. Marion County Comrs. 21 Kan. concede, to provide a greater revenue each 419; Grand County Comrs. v. King, 14 C. C. year for current expenses than the Constitu- A. 421, 67 Fed. Rep. 202, 32 U. S. App. 1; iion intended to authorize when it confined the Desty, Taxn. $ 41. The case of Osborne County same to 12 mills on the dollar. This would Comrs. V. Blake, supra, closely approaches accomplish by indirection that which cannot the one at bar. The question there presented be done directly, which, generally at least, is was whether a county board, after baving lev. not allowable. The views thus expressed we ied the full amount of taxes for current exbelieve to be in accord with the authorities. penses which it had by law any power to levy As it is apparent that under the law requiring for that and previous years, could in a certain a judgment to be paid by tax the latter must, year levy an additional tax to pay a judgment if levied, be contined with other taxes within rendered upon county warrants which had existing constitutional limitations, it necessar. been previously issued to pay county current ily follows that to determine the limitations the expenses for the same years. An express statuclaims placed in judgments must be inquired tory provision required a judgment to be colinto. The statute authorizes a tax to pay such lected by tax as in case of other county charges, judgments “as in the case of other county and the general limitations upon taxation were charges.” The funds to pay other county statutory, instead of constitutional. The right charges for ordinary expenses are raised by a to levy such a lax was denied, the Kansas sulimited tax. As the statute with respect to a preme court saying: “The judgment shall be judgment does not fix its class, and does not collected by means of a tax, in the same manauthorize a special tax irrespective of statutory ver as other county charges are collected; and or constitutional limitation, it is obvious that other county charges, when collected by means we must have recourse to the claims them- of a tax, can be collected only by means of a selves to determine to what class the judgment limited tax. • A judgment rendered belongs, and whether any limit is imposed upon a claim against a county is simply one of upon taxation, by which they may be enforced. I the items which the county board takes into

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consideration in levying a tax for county the district court tax for the maintenance of the charges, or for county expenses, or for current court, in addition to the levy of 12 mills for expenses.

All the statutes upon the county revenue. What we have already said subject seem to contemplate that the county disposes of this inquiry. We fail to observe board will not create, nor allow to be created, anything in the Constitution or statutes which liabilities against the county faster than the auiborizes a levy for court expenses in excess legal and proper taxes will pay them. But and exclusive of the limited tax of 12 mills for suppose the county board should allow liabil-county revenue. ities to be thus created, then may all the cred- With respect to the seventh question, we itors of the county convert their claims into assume the damages to have been recovered in judgments, and then compel the county board a proceeding to determine the compensation to io levy county taxes vastly beyond the limits be paid the landowner by reason of the exer. prescribed by S 181? We think not.” The cise by the public of the right of eminent do. Supreme Court of the United States, in main, and the consequent taking of some of Bruunsville Taring Dist. Comrs. v. Loague, the land for public purposes. We regard this supra, beld that, it appearing from the petition as not entirely free from doubt, but are inthat the bonds upon which the judgments clined to the opinion that the damages thus were rendered were issued under an abrogated assessed are payable out of the ordinary county statute, and were consequently void, and that revenue; and the result would be that, if the no power to tax to pay them was possessed by county is unable to make the compensation, it the taxiug district, because such power was is powerless to complete the location of the given only by the statute which bad ceased to road, which might result in the taking of priexist, mandamus to levy tax to pay the judg- vate property without just compensation. If ments would not be awarded. The Constitu- the damages are recovered as for a tort, adtion excepts from the limit for taxation for other inquiry would arise, which, in this case, county revenue purposes, not the payment of we refrain from deciding. judgments, but the payment of the public The final question requiring the opinion of debt. We are unable to class a judgment in this court attects the right of the board of all cases irrespective of the nature of the obli- county commissioners to confess and author gation merged therein, as a public debt within izea confession of judgmentsagainst the county. The purview of the section of the Constitution A decision upon that question is not free from in question. The Constitution clearly and difficulty. We are practically without prece. forcibly distinguishes between those liabilities dent, and resort must be had to our rather which are payable out of the general and or- meager statutory provisions covering the subdinary revenue and those for which provision ject of confession of judgments, as well as to must otherwise be made. It was not intended ihose prescribing the duties and powers of the that a county powerless to legally contract debt board of county commissioners. “A person which could not be paid out of the current indebted or against whom a cause of action exrevenue, because of its exhaustion in paying ists, may personally appear in a court of com. other expenses, could nevertheless by incurring petent jurisdiction and with the assent of the such debts be permitted to employ unlimited creditor or person having such cause of action, taxation to defray those expenses wbich the confess judgment, whereupon judgment sball Constitution declares must be provided by a be entered accordingly.”. Rev. Stat. 1887, limited tax. Our attention bas been called 10 $ 2668. In such case it is required that the the case of Theiss v. Hunter, before the su- debt or cause of action be stated in the judg. preme court of Idabo, 45 Pac. 2. Although ment or writing to be filed as pleadings in the text of the decision in that case is not be other actions. 2669. “An aitorney who fore us, extracts therefrom, found in No. 14 confesses judgment in any case shall, at ibe of volume 1 of Selected Corporation Cases, in time of making such confession, produce the dicate that it was held that municipal indebt. warrant of attorney for making the same, edness incurred during a given fiscal year

and the original or a copy of the war. cannot be paid out of the income or revenue rant shall be filed with the clerk.” § 2671. of any future year, unless it be especially In the first case, under $ 2668, the debtor must raised for the payment of such indebtedness, personally appear. The members of the board on the ground ihat the evident intent of the of county commissioners individually are Constitution of that state was to make the rev. not authorized to allow claims against the enue or income collected each year pay such county. The board of commissioners, at any year's indebtedness, unless by the assent of meeting, is given authority by statute to two thirds of the qualified voters, given as pro- settle and allow all accounts against the vided by law, other indebtedness was author-county, and wben so settled and allowed they ized. It follows from what has been said that may issue county orders therefor as provided to raise a fund to pay salaries of county offi- by law. Rev. Siat. 1887, $ 1901. County orcers, and valid liabilities under the act with ref. ders are required to be sigued by the chairman erence to bounties for the destruction of pred of the board, and atiested by the clerk, under the atory wild animals, a tax in excess of 12 mills seal of the county. Section 1807, as amended in any year for county revenue is not allowa by chapter 33, Laws 1893. Tbe meetings of ble, unless the debt therefor bas been created the board are to be held in public. 1802. in the manner provided in the Constitution, The authority over county affairs is thus vested and any legislation conformable thereto, by a in a board which is composed of three percounty possessing authority to incur such in sons, although a majority constitute a quorum, debtedness.

and may act. The board can only act at a The tenth certified question inquires if the meeting of the board. Doubtless some detail board of county commissioners cannot levy matters may be attended to by one or more of

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the commissioners outside of a meeting by pre- idential electors is to be made by the vious authority of the board, or such act may county clerk, and not by the secretary of in some cases, perhaps, be ratified, but the state, under Laws 1890, chap. 80, $ 104, providing allowance of claims must be at some time the that the names of such electors presented in one act of the board as such. The county is con

certificate shall be arranged in a separate group. stituted, by law, a body politic and corporate,

but the secretary must so certify the names and

description of the candidates as to convey to the and its powers as such corporate body are ex

clerk all knowledge requisite to such grouping. ercised by a board of county commissioners. Such powers are to be exercised, and the du. 2. The name of a person ascandidate for

elector of President and Vice Presi. ties devolving upon the board are to be discharged, in the manner provided by law. We

dent cannot appear in more than one do not understand that the members compos- place upon the official ballot under Laws 1860, ing the board are autborized to act as a board

chap. 80, $ 104, which provides for no party headTheir act is

ings or columns set apart for separate parties, but except when together in session.

requires the ballot to name the party or principle then not individual, but as a body, acting as a

represented by a candidate in connection with his unit. McCortle V. Bates, 29 Ohio St. 419. Whatever authority, if any, is possessed by the 3. The name of a candidate nominated commissioners, 10 confess a judgment against

by certificate of electors in place of a person the body corporate and politic—the county

previously nominated in the same way, but who must reside in them as constituting a board,

has declined, should be given the same place upon rather than as individual officers. As such a

the ballot that the prior nominee would have board, required to act as a body, we are unable to

been entitled to. conceive that it can personally appear in court, 4. The exclusion from the signers of a as required by R 2668. No statutory provision

certificate of electors nominating can. exists empowering one or more of the commis

didates by Laws 1890, chap. 80, $ 89, of those sioners or any other official to so personally ap

persons who have joined in a certificate nominatpear, and in the name of the county enter con. ing other candidates for the same office, does not fession of judgment. In the absence of some apply to persons who have participated in the such provision in the present condition of the nomination of other persons through primaries, law concerning judgments by confession, we but only those who have joined in nominations are clearly of the opinion that the board of by certificate. commissioners are without authority to per- | 5. The validity of a nomination made sopally appear in court and confess a judg- by a chairman of the state committee ment against the county. It would seem to of a politicul party with 100 associates to fill vafollow tbat, being powerless in that respect, cancies in the list of presidential electors nomi. the board, even as a body, cappot authorize nated in the same manner, when not in violation some person to do so. Such authorization

of statute, cannot be contested by the committee could only be accomplished, however, by the

of an entirely distinct political party. execution of a warrant of attorney. No ex

(October 20, 1896.) press power to execute such an instrument is granted by statute, nor do we observe any authority given the board from which such power APPLICATION for a writ of mandamus to

compel defendant to change his certificate can be implied. In discussing this matter it is to the county clerks of the names of the candi. perhaps needless to state that we refer only to dates for presidential electors to be voted for confession of judgments in its strict sense, and at a coming election. Denied. do not refer to actions regularly brought, in

The facts are stated in the opinion. which issues are duly framed, and upon hear- Mr. Walter R. Stoll for relator. ing or trial, by admission of the lawful rep

Messrs. Lacey & Van Devanter for reresentative of the county in such suits, the spondent. court may be satisfied of the justness of the claim sued upon, and thereupon enter up Potter, J., delivered the opinion of the judgment. Such an action is not dependent court: upon the statutes governing confession of judg. The relator, chairman of the Democratic ments, but is in reality a judgment rendered State Central Committee, brings tbe present upon trial and proof. We tender this explana- action, seeking thereby the allowance of a writ tion that any possible confusion respecting the of mandamus to compel the secretary of state to decision of ihe court may be avoided. This, I | rescind or modify the form or character of his believe, disposes of all the questions.

certificates to the several county clerks respectGroesbeck, Ch. J., and Conaway, J., ing the candidates for electors of President and

Vice President of the Upited States. The respondent certified such nominations in the fol

lowing manner and order: the names of three STATE of Wyoming, er rel. Charles E. candidates of the Republican party, simply BLYDENBURGH,

naming them with the word “Republican" fol.

lowing each of their names; the names of PatCharles W. BURDICK, Secretary of State. rick J. M. Jordan, John Sims, and Daniel L.

Van Meter, with the word “People's” accom(.... ....Wyo.........)

panying the names of Jordan and Sims, and the 1. The grouping of candidates for pres- words “Democrat and People's” following the

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NOTE.- As to name appearing more than once on L. R. A. 586; and Todd v. Election Comrs. (Mich.) 29 official ballot, see also State, Bateman, v. Bode L. R. A. 330, (Ohio) ante, 498; also: Fisher v. Dudley (Md.) 12

name of Van Meter; the names of three Probi-| three other candidates for the game office by bition candidates; and lastly the names of John attending and participating in the primaries of A. Martin and Patrick J. Quealy, with the the Republican party. This last-mentioned word “Democrat” following each of their allegation is general in character. It is neither pames. The petition discloses: That at the stated when they so attended and participated, regular Democratic state convention George H. or in what the participation consisted, nor are Cross, Jobn A. Martin, and Patrick J. Quealy the particular individuals referred to indicated. were nominated for presidental electors, and at The petition avers that the certificate of ihe rethe regular state convention of the People's spondent is illegal and wrong in two respects; party Francis M. Mattbews, Charles H. Ran. First, in failing to certify the name of D:10dall, and Daniel L. Van Meter were nominated iel L. Van Meter in the same group and in confor such otlice. All of these nominations were junction with the names of Martin and Quealy, duly certified to the respondent by the respect the other Democratic candidates; and second, ivechairmen and secretaries of such conventions. in including the names of Jordan and Sims That within the time allowed by the statute, in the group of the candidates for electors of Cross, one of the Democratic nominees, and the People's party. The prayer of the petition Randall and Matthews, two of the pominees is that a writ of mandamus issue directing ite of the People's party, duly declined. That in respondent to rescind bis certificate, and to pursuance of the authority expressly conferred issue therefor vew ones, placing the name of upon it by the convention making the original Van Meter in the group of Democratic candinominations the state committee of the Demo- dates, and omitting the names of Jordan and cratic party filled the vacancy caused by the Sims from the group of the candidates of the declination of Cross by the nomination of Dan People's party, or requiring him to so modify iel L. Van Meter. That neither any conven- bis certificates already sent out that ihe same tion or committee of the People's party at result may be accomplished. tempted to fill the vacancy occasioned by the The case was heard upon the petition and the declinations of Matthews and Randall, por various certificates of nominations for the ot. took any action concerning the matter, and tice of presidential electors filed in the office of that the People's party convention had not em respondent. From the record outside of the powered its state committee to fill such or any petition it appeared that on the 25th day of vacancies. It further appears that on the 8th September-several days before the chairman day of October one John W. Patterson, who and secretary of the convention of the People's had been appointed by the said convention of party filed their certificate of the nominations the People's party as the chairman of the state made by that party at its said conventioncommittee of that party, delivered to the re- certificate of nomination, signed by 100 elec. spondent a certificate of nomination purporting tors representing themselves as members of to dominate for the office of presidential elec. the People's party, was tiled, making original tors to fill the vacancy in the list of People's nominations of candidates for electors to repparty candidates caused by the declination of resent the principles of the People's party, Matthews and Randall, respectively, Patrick naming as the nominees thereof the same perJ. M. Jordan and John Sims: it appearing sons who were nominated at the state convenfrom the record that in the body of such certion of that party, viz. Matthews, Randall, and tificate it was recited that “the undersigned and Van Meter. the said Patrick J. M. Jordan and the said John The duty of the secretary of state with reSims so dominated to fill such vacancies rep- spect to the certification of nominations filed in resent the People's party;" and that the same his office is defined by the provisions of $ 93 of was verified by said John W. Patterson, who chap. 80 of the laws of 1890, as follows: "Sot made oath that the statements contained in the less thau twenty-five nor more than thirty dars certificate were true, and described himself in before an election to fill any public office, the his aflidavit as the chairman of the state com- secretary of Wyoming shall certify to the mittee of the People's party. The said certi county clerk of each county within which any ficate was signed by 100 electors, including of the electors may by law vote for candidates said Patterson. The relator in his petition for such office, the names and description of charges that this certificate of nomination was each person nominated for such office as speci: void. The allegations to support such charge, tied in the certificate of nomination with the summarized, are to the effect that the nomina- snid secretary." If the respondent has com uous mentioned therein were not made by plied with this duty, then the writ prayed for the People's party; that the laws of this state should not be allowed. It is contended that contemplate and expressly require that va he has failed to perform the duty in the two cancies occurring in the ticket of any political particulars already mentioned. Upon the party dominated in regular convention shall be hearing, although it was not conceded by counfilled only by the convention itself or by the sel for relator that the names of Jordan and party committee duly authorized; that the Sims were entitled to be certified in any man. certificate was not filed within the time re- ner whatever, the chief contention seemed to quired for original nominations; and that no be parrowed to the proposition that they were number of electors can supplant or supersede not properly certified as People's candidates, the action of an organized political party; and in one group with Van Meter; but tbat, if and the electors whose names are subscribed to certified at all. some words, such as “Indethe certificate in question were not authorized pendent" or "Electors,” should be used to indito represent the People's party, or act in its be cate that they were nominated by certificate of half. It was also averred that a large number electors. The argument respecting the groupof the persons whose names were signed to the ing of the Democratic nominees, and including certificate had joined in nominating at least I therein the name of Van Meter in the certifi


cate of the secretary, was based upon the re nomination are entitled to be arranged upon quirements concerning the official ballot. Sec. the official ballot in a separate group, and tion 104 of chapter 80 of the Laws of 1890 that the officer charged with the duty of thus provides that “all ballots prepared under the arranging tbem can have no other source of provisions of this act shall be white in color official information than the contents of the and of a good quality of paper, and the names certificate of the secretary. It would, thereshall be printed thereon in black ink. Every fore, seem reasonably clear that in the perballot sball contain the name of every candi formance of the duty devolving upon the secdate whose nomination for any office specified retary be should so certify the names of such in the ballot bas been certified or filed accord candidates and their description as will coning to the provisions of this act and no other vey to the county clerk all requisite knowl.

The names of candidates for each edge. The relator and his counsel assumed oflice shall be arranged under the designation that tbis could only be accomplished by the of the office in alphabetical order according to proper grouping of the candidates in the cersurnames, except that the names of electors of tificate of the secretary. We are not, however, President and Vice President of the United prepared to assent to that view. If the informaStates presented in one certificate of nomination sufficient for the appropriate performance tion, shall be arranged in a separate group, of the duty of the county clerk can be given in every ballot shall also contain the name of the other ways than by grouping, -and we appreparty or principle which the candidates repre- bend that may be practicable, then it would be sentascontainedinthe certificate of nomination. erroneous to say in the absence of an express At theend of the list of candidates for each office requirement to that effect, that the secretary is sball be left a blank space large enough to con- under official obligation to place the candidates tain as many written names of candidates as in groups, as they are entitled to appear on the are necessary to fill such office. And on the ballot, and by this method alone to certify the ballot may be printed such words as will aid pecessary information to the county clerks. the voter to vote, as 'Vote for one,' Vote for The alternative writ commanded the respondtwo, 'Vote for three;' “Yes,' 'No' and the ent to thus group the dames, or show cause to like.” It is not required of the secretary that the contrary. In case the writ should be made be prepare the official ballots. With this be peremptory, the same command would conhas nothing whatever to do. That duty re- tinue, notwithstanding the duty to afford sides with the county clerk of each county. proper information could as well, and perhaps Under our system of voting the elector is re- even better, without trespassing upon the disquired to place a cross opposite the name of cretion of the county clerks, be capable of each candidate for whom he desires to vote; performance in another manner. The soundand, although the names of candidates for elect- ness of the contention of the relator, moreover, ors presented in one certificate of nomination depends upon the correctness of his theory that are required to be arranged upon the ballot in the name of Van Meter should appear upon the a separate group, one cross will not suffice to ballot in a group to be comprised of bis dame vote for the three, or for the group thus ar- and the other two Democratic nominees. If that ranged, but the voter, if desiring to vote for is not a right to which he is entitled, then assurthree, as be may do, is required to place a cross edly the respondent is not required to certify opposite the name of each one of the three. At his name in such a group in any event, and we the time of orally announcing the conclusion will not rest our conclusion entirely upon the of the court it was stated that the secretary fact that the respondent might employ different was not required to group the candidates for methods, but will inquire into the proposition electors at all, and that, if he did so, his ar tbus insisted upon by the relator. It is manirangement into groups was not binding or con fest that the issues in this case do not directly clusive upon the officers charged with the duty involve the preparation of the ballot; but that of preparing the ballots. This statement was matter bears a close relation to tbe obligations made in view of the rather meager provisions imposed upon the secretary, and as affecting affecting the duty of the secretary, and the bis duties it may very properly be considered. nature of a mandamus proceeding; and it It was decided by this court in the case of seemed that, unless it was clearly the duty of Sarin v. Peuse (Wyo.) 42 Pac. 750, that as to the respondent to group the candidates, be any office other than elector for President and ought not to be directed by a writ of mandamus Vice President a candidate nominated by more to do so. Tbe statute does not expressly re-than one party for the same office was not quire that be shall certify such candidates in entitled to bave bis name appear upon the the manner in which they are required to be ballot more than once, and we can see no reaarranged upon the ballot; and, so far as the son for departing from that rule. The opinname of Van Meter is concerned. that is the ion in that case out of abundant caution extent of the prayer of relator. But we are expressly stated that whether or not a difsomewhat apprehensive that a misunderstand ferent rule would apply as to presidential ing of the views of the court may arise from electors was not decided. The reason for what was said when its conclusion was an. the principle adopted in Sanoin v. Pease arose nounced, without some further explanation. out of our system of ballots and voting; the While it is true, as above suggested, that there requirement that a cross must be placed is no express provision requiring the secretary opposite the name of each candidate for to do more than certify the names and descrip. wbom the elector desired to vote: the imtion of each person nominated, as specified possibility of voting a straight ticket, or in the certificate of nomination, it is like for any number or group of candidates repwise true that those candidates for presi resenting the same party or principle, by a dential electors presented in one certificate of single mark or cross; and as a consequence,

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