Atkinson v. Board of Com'rs of Ada County

Decision Date25 May 1910
CourtIdaho Supreme Court


(Syllabus by the court.)

1. The act of the legislature approved March 16, 1909 (Sess. Laws 1909, p. 238), providing for the formation of railroad districts and the voting of bonds and purchase or construction of railroads by such districts and providing for operating or leasing the same, is in violation of the provisions of sec. 4 of art. 8 of the state constitution and contrary to the spirit of secs. 2 and 3 of art. 8 and sec. 4 of art. 12 of the constitution.

2. That which the constitution directly prohibits may not be done by indirection or by a general legislative act which is meant and intended to include and accomplish the purposes and objects specifically or impliedly prohibited.

3. It was never anticipated or intended by the framers of the constitution that counties, or other political subdivisions would or could enter into the business of railroad building but, on the contrary, the specific prohibitions found in the constitution manifest a clear purpose and intent to prohibit the state or county, or any subdivision thereof, from entering into any such enterprise.

4. The building of a railroad is not within itself an exercise of governmental power, but is purely a business enterprise, and if it is to be engaged in by the state or any of its political subdivisions, it must be done by virtue of the proprietary powers of the state or political subdivisions thereof and not under the police or general welfare powers of the state.

Original action for a writ of mandate. Demurrer to the complaint sustained and action dismissed.

Demurrer to the complaint sustained, and action dismissed. No costs awarded.

Karl Paine, and B. S. Crow, for Plaintiff.

In the cases contemplated by the constitution, the state or municipality would not become the absolute owner of the railroad, with power to manage, operate and control the same, or the owner of an interest therein; hence if these provisions were applicable to districts other than political subdivisions of the state, and we submit they are not, they would not prevent such districts from constructing railroads that were to become their own property. (City of Cincinnati v. Dexter, 55 Ohio St. 93, 44 N.E. 520.)

We do not discuss the wisdom of this legislation, for, as we understand it, the court is not concerned with the wisdom or folly, as the case may be, of the statute. (State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259.)

D. G. McDougall, C. P. McCarthy, J. H. Peterson, and O. M. Van Duyn, for Defendant Board.

In passing upon the question of whether or not this law is an evasion of our constitution, the court is entitled to read between the lines of this bill and form its conclusion as to just what the results of such legislation will be. Of what use or benefit to our community would be a railroad between Boise and Highland without connection with trunk lines? Such a line of railroad would be absolutely at the mercy of the trunk line, and in time would become a part of such trunk line. If we then look at the railroad at a time when it has passed into the hands of a railroad corporation, can we truthfully say that from the inception of such railroad the public has not loaned its credit thereto? (Taylor v. Ross County Commrs., 23 Ohio St. 22.)

It is a fair inference that the object of this legislation was, and its operation will be, to enable the political organizations and municipalities of the state to do indirectly what they are prohibited from doing directly; that the main object of this legislation will be to enable municipalities of the state to use their credit, and raise and expend their money in aid of railroad companies. (Counterman v. Dublin Township, 38 Ohio St. 515; Wyscaver v. Atkinson, 37 Ohio St. 80.)

In these cases the court looked behind the language of the bill and went into its utility, operation and purpose, and found that while, strictly speaking, the public credit was not loaned, at the same time the utility, operation and purpose of the law would bring about exactly the same results, and that it was not in the contemplation of the framers of the constitution that an evasion so palpable as this could be indulged in.

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.



This is an original action commenced in this court praying for the issuance of a writ of mandate against the commissioners of Ada county, requiring and compelling them to make an order calling an election for the purpose of voting on the formation of a railroad district in the manner authorized and provided for by the act of March 16, 1909 (Sess. Laws 1909, p. 238). The real question involved in this proceeding is the constitutionality of this statute. The act is intended to authorize the formation of railroad districts by a vote of the resident land owners of the districts. It provides for the manner of organizing the district, the election of directors, the voting of bonds, the selection and acquiring rights of way, and the building and constructing of lines of railroad and operating or leasing the same. The act appears to have been very carefully drawn, and conforms very closely to the provisions of the irrigation district laws of this state, providing substantially the same method of formation of the district, of levying and collecting assessments, determining benefits, and other incidents and details of the irrigation act.

Sections 2, 3, and 4 of art. 8 of the state constitution read as follows:

Sec. 2: "The credit of the state shall not, in any manner, be given, or loaned to, or in aid of any individual, association, municipality or corporation; nor shall the state directly or indirectly, become a stockholder in any association or corporation."

Sec. 3: "No county, city, town, township, board of education, or school district, or other subdivision of the state shall incur any indebtedness, or liability in any manner, or for any purpose, exceeding in that year, the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void: Provided. That this section shall not be construed to apply to the ordinary and necessary expenses authorized by the general laws of the state."

Sec. 4: "No county, city, town, township, board of education, or school district, or other subdivision, shall lend, or pledge the credit or faith thereof directly or indirectly, in any manner, to, or in aid of any individual, association or incorporation, for any amount or for any purpose whatever, or become responsible for any debt, contract or liability of any individual, association or corporation in or out of this state."

Section 2 prohibits the state in any manner ever becoming interested with any individual, association or corporation in any business enterprise, and it likewise prohibits the state in any manner loaning its credit to the aid of such an enterprise or becoming a stockholder therein; while sec. 4 makes substantially the same prohibition against any county, city, town, township, board of education, school district, or other subdivision of the county or state, ever lending its credit, either directly or indirectly, to any business enterprise in aid of any individual, association or corporation. Sec. 4 of art. 12 reiterates substantially the same thing with reference to counties and municipal corporations as is provided against in sec. 4 of art 8. Sec. 4 of art. 12, however, specifically authorizes cities and towns to contract indebtedness for "school, water, sanitary and illuminating purposes," thereby excluding all other purposes not governmental in their character.

It is argued by the plaintiff in this case that under the authority of Nampa etc. Irr. Dist. v. Brose, 11 Idaho 474, 83 P. 499, holding the district irrigation law of this state valid and constitutional, that it must necessarily and logically follow that the present act authorizing railroad districts is also constitutional. The foregoing case is clearly not decisive of the question...

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