Ball v. Bannock County

• Decision Date: 13 December 1897
• Parties: BALL v. BANNOCK COUNTY
• Court: Idaho Supreme Court

51 P. 454

5 Idaho 602

BALL v. BANNOCK COUNTY

Supreme Court of Idaho

December 13, 1897

DEMURRER - CONSTITUTIONAL LAW-COUNTY INDEBTEDNESS - COUNTY COURTHOUSE SITE.-A board of county commissioners can, under the constitution and laws of Idaho, purchase real estate necessary for the use of the county, without submitting the question of making such purchase to the voters, when they can do so out of the revenue for the year and not encroach upon such part of said fund as is required to pay the indebtedness created during the year for ordinary and necessary expenses. The purchase of a site upon which to build a county courthouse is not an ordinary and necessary expense.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Reversed and remanded, with instructions.

S. C Winters and Thomas F. Terrill, for Appellant.

Subdivision 7 of section 1759 of the Revised Statutes of the state of Idaho is the only law authorizing the purchase of real estate for the use of the county, and the amount or price to be paid is nowhere limited, except as stated in said subdivision 7. The requirements of subdivision 7 of section 1759 of the Revised Statutes were fully complied with by the board of commissioners of Bannock county, in purchasing block 268 in the city of Pocatello. And the said purchase of said block did not fall within the prohibition of section 3 of article 8 of the constitution of the state of Idaho for the reason that there was ample revenue provided for the said county for the year 1893, to pay all ordinary and necessary expenses of said county, and to pay the warrant in question herein and more. (Rauch v. Chapman, 16 Wash. 568, 58 Am. St. Rep. 52 48 P. 253; Grant Co. v. Lake Co., 17 Or. 453, 21 P 447; Cashin v. Dunn, 58 Cal. 581; Welch v. Strother, 74 Cal. 413, 16 P. 22; Geo. D. Barnard & Co. v. Knox Co., 37 F. 563.)

H. V. A. Ferguson, for Respondents, cites no authorities on the question passed upon by the court not cited by appellant.

QUARLES, J. Sullivan, C. J., and Huston, J., concur.

OPINION

QUARLES, J.

The complaint in this case contains two counts. In the first count, the plaintiff, after making the necessary preliminary allegations, alleges the following facts: That the board of county commissioners of Bannock county did, July 14, 1893, by order then entered upon the records of said board, determine that it was essential to purchase real estate upon which to erect a courthouse and jail, and appointed three disinterested citizens of said county to appraise certain blocks in the city of Pocatello; that said appraisers accepted said appointment, took and filed their oath as such appraisers, and appraised said blocks, one of which was block 268 of said city, owned by the plaintiff, which said appraisers appraised at $ 4,500; that said appraisers reported their said acts, which report was received and spread upon the minutes of said board, and the said appraisers were discharged; that the plaintiff then offered to sell said block 268 to said county for the sum of $ 4,000 which offer was, by said board of commissioners, by order made and entered on its minutes, accepted; that the plaintiff, by deed, conveyed said block to Bannock county, which deed was, by order of said board of commissioners, filed for record; that said board of commissioners ordered a warrant drawn in favor of plaintiff for the purchase price of said block, the said $ 4,000, and which warrant was drawn by the auditor of said county for said sum, and was, on July 25, 1893, duly registered, the same being No. 138. The complaint then makes the following allegations as paragraph 8a: "That, at the time said warrant was issued and said indebtedness was incurred, the said commissioner of Bannock county had not incurred an indebtedness of any kind, nor an aggregate indebtedness in excess of $ 10,000, and the revenue provided for the year 1893 for said county exceeded $ 30,000; and there was more than sufficient revenue provided for the year of 1893 for said county to pay all the ordinary and necessary expenses and indebtedness of said county for said year, and to pay the warrant and indebtedness mentioned in this complaint as due and owing to plaintiff." Continuing, the complaint alleges the calling in and payment of warrants issued since the said warrant was issued to the plaintiff, the presentment of said warrant No. 138 by plaintiff to the treasurer of said Bannock county, and the failure and refusal of said treasurer to pay said warrant, and that said treasurer still refuses to pay said warrant or any part thereof. The plaintiff also alleges in said complaint that the said orders made by said board of commissioners, and its action in purchasing said real estate, were never appealed from, enjoined, or questioned, and that said treasurer will not pay said warrant unless compelled by the court so to do. The complaint contains a second count, in which the foregoing facts are alleged, and in which it is further alleged that said county took possession of said block of land, and has occupied and used it since,...