Elmore County v. Alturas County

• Decision Date: 30 May 1894
• Citation: 37 P. 349,4 Idaho 145
• Parties: IN RE COUNTIES ELMORE, LOGAN AND BINGHAM v. COUNTY OF ALTURAS
• Court: Idaho Supreme Court

37 P. 349

4 Idaho 145

IN RE COUNTIES ELMORE, LOGAN AND BINGHAM v. COUNTY OF ALTURAS

Supreme Court of Idaho

May 30, 1894

DIVISION OF COUNTY-DUTY OF COMMISSIONERS-APPORTIONMENT OF DEBT.-When a county is divided by act of the legislature, and said act contains a provision that the boards of commissioners of the counties so created shall apportion a debt that may exist, to ascertain what portion each shall pay, held, that it is a perpetual continuing duty incumbent upon the commissioners then in office and their successors until it is performed, and that a right of action does not abate by reason of the persons holding the office of commissioners refusing or neglecting to perform such duty during their term.

WHERE DUTY IS OF A PUBLIC NATURE LAW OF LIMITATIONS DOES NOT APPLY.-Where the duty to be performed or the right to be enforced is of a strictly public nature, they are not subject to the law of limitations.

SAME-DEMAND NOT REQUIRED.-Where a duty is of a strictly public character by law required to be performed by a public officer, there is no one especially empowered to make the demand for its performance; therefore such demand is not necessary. The law itself is a continual demand, and neglect or performance is a continual refusal.

(Syllabus by the court.)

ORIGINAL proceeding in Supreme Court for writ of mandate. Writ granted.

Peremptory writ issued.

Johnson & Johnson and Selden B. Kingsbury, for Petitioner.

Division of counties and apportionment of indebtedness is purely a legislative function. (Laramie County v. Albany County, 92 U.S. 306-315; North Homestead v Homestead, 2 Wend. 134, 135; 1 Beach on Public Corporations, sec. 435; Dillon on Municipal Corporations, 4th ed., sec. 189; Cooley on Taxation, 2d ed., 239, 685; Washington Co. v. Weld Co., 12 Colo. 152, 20 P. 273; Cooley's Constitutional Limitations, 6th ed., 229, 230; Cooley on Taxation, 2d ed., 45, 46; Merriwether v Garret, 102 U.S. 472; Angell and Ames on Corporations, sec. 31; Bourough of Dunmore's Appeal, 52 Pa. St. 374; Robertson v. Rockford, 21 Ill. 451; 2 Kent's Commentaries, 13th ed., 306; Memphis v. Memphis Water Co., 5 Heisk. 528; Depere v. Town of Bellevue, 31 Wis. 120, 125, 11 Am. Rep. 602; Olney v. Harvey, 50 Ill. 453, 99 Am. Dec. 530; Daniel v. Memphis, 11 Humph., 582; 10 Myer's Federal Decisions, secs. 2197, 2198, 2201; Chandler v. Boston, 112 Mass. 204.) There is no "impairment of the obligation of contracts" with the bondholders. They have nothing to do or say as to the methods prescribed or changed by the legislature, so long as payment is secured. (Patterson's Federal Restraints on State Action, sec. 61, p. 149; Antoni v. Greenhow, 107 U.S. 774, 2 S.Ct. 91; In re Jurisdiction of Justices of the Peace, 9 Colo. 625, 21 P. 472; Wade v. Richmond, 18 Gratt (Va.) 583.) There is a vast difference between changing a contract and "impairing the obligation of a contract." ( Ogden v. Saunders, 12 Wheat. 343; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 539.) "A statute which contains a contract is not absolutely unchangeable, for it is a law as well as a contract." ( Thornton v. Hooper, 14 Cal. 9.) "Laws passed in the exercise of the ordinary legislative power of a state are not contracts in the purview of the constitution, and laws which amend or repeal them do not fall beneath the constitutional inhibition." (State v. Dew, R. M. Charlt. 397; Corning v. Green, 23 Barb. 33; Patterson's Federal Restraints on State Action, 159; Gilman v. Sheboygan, 2 Black, 510; Darthmouth College v. Woodward, 4 Wheat. 629.) "Nor can a state legislature bind subsequent legislatures, as to the exercise of the powers of sovereignty, over the political subdivisions of the state." (Patterson's Federal Restraints on State Action, 179; Black's Constitutional Prohibitions, sec. 91, p. 1ll.) Where the duty is of public nature there need be no formal demand and refusal. "In such cases the law itself stands in lieu of demand, and the omission to perform the required duty in place of a refusal." (High on Extraordinary Remedies, secs. 13, 41; 2 Spelling's Extraordinary Relief, sec. 1381.) Mandamus will lie upon petition of one county to compel the board of supervisors of another county to levy a tax that will go in to the treasury of the petitioning county in payment of a claim growing out of the division of counties. (Contra Costa County v. Alameda County, 26 Cal. 641; Quincy v. Jackson, 113 U.S. 332, 5 S.Ct. 332; County Court of Ralls County v. United States, 105 U.S. 733; United States v. City of New Orleans, 98 U.S. 381-398; Rev. Stats., sec. 4977; High on Extraordinary Remedies, sec. 31, 323.) "Mandamus will issue to compel county officials to adjust the proportion of the debt of the county, where it has been set off from another county." (2 Spelling's Extraordinary Relief, sec. 1514; Homestead Co. v. Graves, 44 Ark. 317; School Dist. No. 2 v. School Dist. No. 1, 3 Wis. 333.) "When statutes require a municipal officer to certify the amount due by the municipality to another municipality, mandamus will issue to compel the performance of the duty." (2 Spelling's Extraordinary Relief, sec. 1514; Loan Assn. v. Topeka, 20 Wall. 655; Cooley on Taxation, 2d ed., 101, note 685.)

R. F. Buller and F. E. Ensign, for Respondent.

Mandamus is a prerogative writ issued to prevent a failure of justice where there is no other adequate legal remedy to enforce the performance of a duty, in which the complaining party is interested. (Wait's Actions and Defenses, 357, and cases cited.) The writ is not granted as a matter of course, but it rests, to some extent, in the discretion of the court, to be exercised upon equitable principle. (Waldon v. Lee, 5 Pick. 333; Turner v. Potts, 3 Mont. 364; People v. Supervisors, 15 Barb. 607-617.) Will not issue where the defendant has no power to perform the act required (People v. Supervisors, 15 Barb. 607; People v. Hoyt, 66 N.Y. 606; People v. Supervisors of Greene, 12 Barb. 217), or where it would be fruitless. (Commonwealth v. Supervisors, 29 Pa. St. 121.) Where the resource for the payment of the bonds of a municipal corporation is the power of taxation existing when the bonds were issued, any law which withdraws or limits the taxing power and leaves no adequate means for the payment of the bonds is forbidden by the constitution of the United States and is null and void. (Wolff v. New Orleans, 103 U.S. 358. See, also, Ralls Co. Ct. v. United States, 105 U.S. 733; Van Hoffman v. Quincy, 4 Wall. 535; Girard v. Philadelphia, 7 Wall. 1; Brighton v. Pensacola, 93 U.S. 266; O'Connor v. Memphis, 6 Lea, 730; Amy v. Selma, 77 Ala. 103; Cooley's Constitutional Limitations, 5th ed., 356.) Nothing is more material to the obligation of a contract than the means of its enforcement. The ideas of validity and remedy are inseparable and both are parts of the obligation which is guaranteed by the constitution against impairment. Any impairment is prohibited. The degree is immaterial. ( Walker v. Whitehead, 16 Wall. 314; Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 962; Louisiana v. St. Martin's Parish, 111 U.S. 716, 4 S.Ct. 648.) The act of division, section 7, before referred to, required the boards to appoint the accountants at their regular meeting in April, 1889, and made no provision for the appointment at any other time, and hence there was no power given to that nor any other board to appoint at any other time. The general rule is, that power given by a statute to a public corporation to do an act within a certain time must be exercised within that time or it will be lost. (Town of Williamsport v. Kent, 14 Ind. 306; Marsh v. Chestnut, 14 Ill. 223; Sanderson v. Lasalle, 57 Ill. 441.) Civil actions can only be commenced within the periods prescribed in this title after the cause of action has accrued, except when in special cases a different limitation is prescribed by statute. The word "action" as used in this title is to be construed whenever necessary so to do as including a special proceeding of a civil nature. (Rev. Stats., sec. 4080.) Where a power is given by statute and a specific remedy provided, or a new power and the means of executing it, the power can be executed and the right vindicated in no other way than that prescribed by the act. (Sutherland on Statutory Construction, sec. 399, and cases cited.) The statute of limitations applies to counties in Idaho. (Wood on Limitation of Actions, sec. 58, and cases cited; 2 Dillon on Municipal Corporations, 4th ed., secs. 668-674.)

Complainants file petition for writ of mandate against the commissioners of Alturas county et al., and state: That on the seventh day of February, 1889, the county of Alturas, then of the territory of Idaho was divided by act of the legislature. There were erected therefrom the counties of Elmore and Logan, and part of said original county was attached to Bingham county, and part thereof was still to be and remain the county of Alturas. That at the time of and prior to the time of said division the said county of Alturas was indebted to various parties in the sum of more than $ 250,000, in interest bearing bonds and county warrants. By the provisions of section 7 of said division act, it was provided that the debt of Alturas county, as it then existed, "shall be apportioned between the counties of Alturas, Elmore, Logan and Bingham counties in the same proportion that the taxable property of the three counties have acquired from Alturas county," and that the four counties bear to each other as shown by the assessment-roll of the year 1888 in Alturas county; and at their meeting in April, 1889, the boards of commissioners of the four counties mentioned shall, respectively, appoint each a competent accountant, who shall meet at the town of Hailey, and proceed to audit and...