Dunbar v. Board of Commissioners of Canyon County

• Decision Date: 30 June 1897
• Citation: 5 Idaho 407,49 P. 409
• Parties: DUNBAR v. BOARD OF COMMISSIONERS OF CANYON COUNTY
• Court: Idaho Supreme Court

49 P. 409

5 Idaho 407

DUNBAR v. BOARD OF COMMISSIONERS OF CANYON COUNTY

Supreme Court of Idaho

June 30, 1897

DEMURRER-MAY BE AMENDED.-A demurrer may be amended, but leave to do so should first be obtained. The building of a bridge is not an ordinary and necessary expense.

COUNTY COMMISSIONERS-AUTHORITY OF AS TO CREATING INDEBTEDNESS.-County commissioners have no authority to contract for the building of a bridge, the cost of which will exceed $1,000, without a petition asking it is presented to them, signed by at least one-third of the tax-paying voters of the county, and then, if the cost, added to the other ordinary and necessary expenses, will exceed the county's revenue for the year, the commissioners cannot contract for such bridge, without being authorized by a two-thirds vote at an election called and held for that purpose, as provided by section 3, article 8, of the constitution.

WHAT PROVISIONS OF CONSTITUTION ARE MANDATORY.-The provisions of the constitution relative to the creation of public debts are mandatory. Boards of commissioners in creating debts must keep within the provisions of the constitution, and if they fail to comply with the requirements of the constitution their acts are void.

TAXPAYER MAY SUE TO ENJOIN.-A taxpayer resident of a county may sue to enjoin the issuance of funding bonds which are about to be issued for debts contracted in violation of provisions of the constitution.

CONSTITUTION MUST BE OBEYED.-To uphold the validity of a proposed issue of county bonds, it must affirmatively appear by the record that the provisions of the constitution were complied with by the commissioners in creating the debt or debts about to be funded.

(Syllabus by the court.)

APPEAL from District Court, Canyon County.

Reversed and remanded, with instructions.

Charles H. Reed, for Appellant.

This action was brought in the district court of Canyon county Idaho by the plaintiff, who was a citizen and taxpayer of said county, for the purpose of enjoining the defendants from issuing the negotiable coupon bonds of said county for the purpose of taking up and paying certain warrants, which it is claimed are illegal. That the sale of said bonds and the application and appropriation of the proceeds thereof for the purpose aforesaid will be illegal, unauthorized by the act of the legislature of the state of Idaho and in violation of the constitution of said state, and injurious to the financial credit of said county and to the interests of this plaintiff as a citizen and taxpayer of said county, and to the interests of all other taxpayers and citizens thereof. The three items for bridges and all the warrants issued for rabbit scalps do not belong to the "ordinary and necessary expenses" of Canyon county, authorized by the general laws of the state within the purview of article 3, section 3, constitution of the state, having been issued without a previous vote of the people, are void. (Bannock County v. Bunting, 4 Idaho 156, 37 P. 277; County of Ada v. Bullen Bridge Co., ante, p. 79, 47 P. 818.) That the plaintiff may maintain this action is supported by Dillon on Municipal Corporations, second edition, sections 731-734. (Andrews v. Pratt, 44 Cal. 309; Catron v. Board of Commrs., 5 N. Mex. 203, 21 P. 60; Crampton v. Zabriskie, 101 U.S. 601; Shakespear v. Smith, 77 Cal. 638, 11 Am. St. Rep. 327, 20 P. 294; Osterhout v. Rigney, 98 N.Y. 22; Colburn v. Mayor, 17 Am. Law Reg. 191; Littler v. Jayne, 124 Ill. 123, 132, 16 N.E. 374; Bayle v. City of New Orleans, 23 F. 843.)

Attorney General R. E. McFarland, Fremont Wood and Edgar Wilson, for Respondents.

The act of the commissioners of Canyon county, respondents, cannot now be attacked, for the reason that the only remedy provided for by law was by an appeal from the decision of the board and the time for an appeal has long since expired and had expired prior to the commencement of this action. (See Rev. Stats., secs. 1776, 1777.) The court had no jurisdiction to entertain this suit in equity, for the reason that the plaintiff, and all parties interested, had a plain, speedy, and adequate remedy at law, in the form of an appeal from the action of the board in accordance with said section. When such a remedy is provided by law, the plaintiff has no standing in a court of equity. The court has no jurisdiction of the case. (Picotte v. Watt, 3 Idaho 447, 31 P. 805; Rogers v. Hayes, 3 Idaho 597, 32 P. 259.) In the former case, decided by this court December 26, 1892, the court uses this language: "The statutory remedy being complete and adequate, the plaintiff must resort to it; and having shown no reason for not doing so, arising from any act of defendants, he is precluded from invoking the aid of equity." (Morgan v. Board of Commrs., 4 Idaho 418, 39 P. 1119. See, also, County of Ada v. Bullen Bridge Co., ante, p. 188, 47 P. 825; Wilkerson v. Walters, 1 Idaho 564; Hazard v. Cole, 1 Idaho 301.)

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

OPINION

QUARLES, J.

The appellant, a resident taxpayer of Canyon county, commenced this action in the district court of the third judicial district of Idaho in and for Canyon county, on the twenty-fifth day of April, 1896, to obtain a perpetual injunction restraining the defendant board of commissioners from issuing bonds to fund $ 46,445.20 of alleged indebtedness of said county incurred during the years of 1894 and 1895. On the May 5, 1896, C. M. Hays, district attorney for said district, filed a general demurrer to the complaint; averring that "the complaint does not state facts sufficient to constitute a cause of action." Thereafter, and on September 30, 1896, said district attorney filed, without leave of court, so far as is shown by the record, another demurrer to said complaint, alleging the following grounds: "1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That several causes of action have been improperly joined in this, to wit: First, that the complaint seeks, in one action, without separating the various causes of action, to enjoin the issuing of bonds to pay the current and necessary expense warrants of said county; second, to pay scalp fund warrants; third, to pay road-fund warrants. 3. That the complaint is ambiguous, unintelligible, and uncertain, in this: From the complaint it cannot be determined whether the plaintiff brings this action to enjoin the issuing of bonds to pay current and necessary expense warrants, to pay scalp fund warrants, or road fund warrants, of said county. 4. That the complaint does not state a cause of action as to why the scalp fund warrants are illegal and void." Afterward the following order was made, to wit:

"This cause coming on to be heard regularly this twenty-third day of December, 1896, upon the demurrer to the complaint herein, it is ordered that the demurrer herein be, and is hereby, sustained.

(Signed)

"J. H. RICHARDS,

"Judge."

And the said order, and a judgment dismissing the action, were filed and entered in the cause on the thirtieth day of December, 1896.

We are unable to ascertain from the record upon which of the demurrers the court acted, or on what grounds the complaint was held to be bad. A demurrer, like any other pleading, may be amended; but, if amended, it should show on its face that it is an amended demurrer. We think that leave to file an amended demurrer should be first obtained, but, as to a first amendment prior to a hearing on demurrer, the leave should be granted as a "matter of course." The practice of filing a number of demurrers to the same pleading by the same party is not permissible, nor is the court called upon to look through the files to see how many demurrers have been filed. Without attempting to solve the question as to which demurrer was argued, or on what grounds the demurrer was sustained, we express the opinion that the plaintiff stated a cause of action, and that the order sustaining the demurrer and the judgment were erroneous.

Section 3, article 8, of the constitution, is in words as follows "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." Paragraph 12 of the complaint is as follows: "The plaintiff alleges further that the said board of county commissioners have made no provision for the collection of an annual tax sufficient to pay the interest on the proposed bonded 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," etc. Attached to the complaint, as exhibit "A," is a statement of the outstanding warrant indebtedness of the county sought to be funded, and from said exhibit it appears that the alleged indebtedness of the county incurred during said two years increased to the extent of $ 46,455.20; said increase being on the following funds, to wit: General expense fund, $...