Eaton v. Mimnaugh

• Citation: 43 Or. 465,73 P. 754
• Parties: EATON et al. v. MIMNAUGH, County Clerk. [*]
• Decision Date: 05 October 1903
• Court: Supreme Court of Oregon

73 P. 754

43 Or. 465

EATON et al. v. MIMNAUGH, County Clerk. ^[*]

Supreme Court of Oregon

October 5, 1903

Appeal from Circuit Court, Union County; Alfred F. Sears, Jr. Judge.

Suit by A.E. Eaton and others against J.H. Mimnaugh, county clerk of Union county, to restrain defendant from giving notice of and providing supplies for a special election for the relocation of the county seat of Union county. From a decree for defendant, plaintiffs appeal. Reversed.

T.H. Crawford and C.E. Cochran, for appellants.

C.H Finn and W.W. Cotton, for respondent.

BEAN J.

This suit involves the constitutionality of an act of the Legislature of 1903 for the relocation of the county seat of Union county (Gen.Laws 1903, p. 104), declaring that a special election shall be held on the first Monday in November, 1903, for the purpose stated, defining the duties of the county clerk in connection with such election, and prescribing the qualifications of voters thereat, and the manner of conducting the same. It is also provided that no place shall be voted for except the cities of Union and La Grande; that, if La Grande shall receive 55 per cent. of all the votes cast, it shall be the county seat of the county from and after the 1st day of January, 1905, otherwise the county seat shall remain at Union, its present location that, in the event La Grande shall receive the requisite number of votes, and be selected as the county seat, the county court shall, within 60 days after the election acquire in La Grande, by purchase or otherwise, a suitable site for a courthouse, and within 90 days adopt plans and specifications for such a building, to be constructed of brick, wood, and iron, with the necessary fireproof vaults for the county records; that as soon as convenient after the adoption of the plans and specifications the county court shall let a contract to the lowest responsible bidder for the construction of the building, to cost the county, together with the site, not to exceed $45,000, and to be completed and ready for occupancy by January 1, 1905, at which time the county records and offices shall be moved from the courthouse at Union to the new courthouse at La Grande; that in payment for the proposed courthouse the county clerk shall issue warrants on bills duly audited and approved by the county court on the "courthouse fund"; that the county court shall levy a tax on all the taxable property within the county "each year for five years sufficient to raise a fund that will pay at least one-fifth of said warrants, principal and interest, each year, so that the whole thereof shall be paid at the end of five years"; that if for any reason, the contemplated courthouse shall not be completed and ready for occupancy by January 1, 1905, it shall be the duty of the county court, in case of a change in the county seat, to provide suitable offices and quarters at La Grande for the county officers and courts until the courthouse is completed and ready for occupancy.

The plaintiffs, who are residents and taxpayers of the county bring this suit to restrain the clerk from giving notice of and providing necessary supplies for such special election or incurring any expenses on account thereof, on the ground that the county is indebted in the sum of $200,000, contracted since the Constitution took effect, evidenced by outstanding warrants, more than $5,000 of which was voluntarily incurred, and it is therefore incapable of complying with the provisions of the act in question in case the county seat should be changed from Union to La Grande, because of the constitutional provision that "no county shall create any debts or liabilities which shall singly or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion." Const. art. 11, § 10. The plaintiffs insist that the act is entire, and that, if the portion thereof making it the duty of the county court to construct a courthouse at La Grande in the event of the location of the county seat at that city is void, because in violation of the Constitution, the entire act must fail. This position is not questioned by counsel for defendant, and we shall assume it to be sound. The argument in support of the constitutionality and validity of the statute under consideration, as we understand it, is: (1) The provision of the Constitution directed against the creation of debts by a county, invoked by plaintiffs, has no application to a debt incurred for the construction of a courthouse, because it is an obligation which a county is compelled to assume as a governmental agent; (2) the constitutional limitation applies to counties only, and does not prohibit the Legislature from imposing liabilities upon them to any extent or for any legitimate purpose, or from compelling them to create such liabilities; (3) the act in question does not contemplate the creation of any debt against the county. The Constitutions of most of the western states contain provisions restricting within certain limits the right of a county to incur indebtedness, and wherever they have been brought in question the general tendency of the courts has been to give them force and effect, and to construe them so as to protect the taxpayers against the unauthorized expenditures. In many of the states the provisions are that no county "shall be allowed to become indebted," or "shall become indebted" exceeding a certain amount, or "shall be authorized or permitted to become indebted" beyond a certain sum, or that "the aggregate debts for all purposes" shall not exceed a certain amount. In all such states the decisions are uniform in holding that any liability, not arising from a tort, by virtue of which the county is under obligation to pay money, is within the prohibition of the Constitution, and void if in violation thereof, without regard to the purpose for which it may have been incurred or contracted. A distinction was at one time made by the Supreme Court of Missouri between debts voluntarily incurred by a county, such as for the improvement of the courthouse, and those the law required it to incur, as for the board of prisoners; holding the former void ( Book v. Earl, 87 Mo. 246), and the latter valid (Potter v. Douglas County, Id. 239). But the attempted distinction was subsequently repudiated, and the doctrine broadly announced that the provisions of the Constitution of that state prohibiting a county from incurring indebtedness "exceeding in any year the income and revenue provided for such year" included all indebtedness for any purpose. Barnard & Co. v. Knox County, 105 Mo. 382, 16 S.W. 917, 13 L.R.A. 244. The Constitution of Colorado provides that the aggregate debts of any county, for all purposes, exclusive of debts contracted before the adoption of the Constitution, shall not at any time exceed a certain per cent. of the assessed values, unless the taxpayers vote in favor of such excess at some general election. One of the counties of the state issued warrants in excess of the constitutional limit for the ordinary expenses of the county, such as witness and juror fees, election costs, charges for board of prisoners, county treasurer's commission, etc., and afterward refused to pay them. In an action brought in the federal courts on the warrants it was insisted that they were not within the provisions of the Constitution, because issued in payment of involuntary or compulsory obligations of the county, which it could not avoid. The difficulty, if not impossibility, of maintaining county organizations under any other construction of the Constitution, was especially urged, and seems to have been persuasive in the court of primary jurisdiction. Upon appeal, however, the Supreme Court of the United States held the warrants absolutely void, on the ground that the language of the Constitution plainly included all indebtedness of whatsoever kind and for whatever purpose it may have been incurred, and the hardship imposed on individuals or the county afforded no excuse for the violation of its provisions; that there was no difference between indebtedness incurred by the contract of the county and that arising from what may be called "compulsory obligations." "Neither can we assent to the position of the court below," says Mr. Justice Lamar, "that there is, as to this case, a difference between indebtedness incurred by contracts of the county and that form of debt denominated 'compulsory obligations.' The compulsion was imposed by the Legislature of the state, even if it can be said correctly that the compulsion was to incur debt; and the Legislature could no more impose it than the county could voluntarily assume it, as against the disability of a constitutional prohibition. Nor does the fact that the Constitution provided for certain county officers, and authorized the Legislature to fix their compensation and that of other officials, affect the question. There is no necessary inability to give both of the provisions their exact and literal fulfillment." Lake County v. Rollins, 130 U.S. 662, 9 Sup.Ct. 651, 32 L.Ed. 1060. Such are also the decisions under similar constitutional provisions of the courts of Illinois ( City of Springfield v. Edwards, 84 Ill. 626; City of Bloomington v. Perdue, 99 Ill. 329; Culbertson v. City of Fulton, 127 Ill. 30, 18 N.E. 781); Indiana ( Sackett v. City of New Albany, 88 Ind. 473, 15 Am.Rep. 467; City of Laporte v. Gamewell Fire Alarm Tel. Co., 146 Ind. 466, 45 N.E. 588, 35 L.R.A. 686, 58 Am.St.Rep. 359); Kentucky ( Beard v. City of Hopkinsville, 95 Ky. 239, 24 S.W. 872, 23 L.R.A. 402, 44 Am.St.Rep. 222); Wyoming ( The Grand Island and N.W.R.R. Co. v. Baker, Treas., 6 Wyo. 369, 45 Pac. 494, 34 L.R.A. 835, 71 Am.St.Rep. 926); Iowa ( Windsor v. City of Des Moines, 110...