Erskine v. Nelson County

• Decision Date: 02 December 1893
• Docket Number: 6731
• Citation: 58 N.W. 348,4 N.D. 66
• Court: North Dakota Supreme Court

58 N.W. 348

4 N.D. 66

MESSENA B. ERSKINE v. NELSON COUNTY

No. 6731

Supreme Court of North Dakota

December 2, 1893

Appeal from District Court, Nelson County; Templeton, J.

Action by Messena B. Erskine against the County of Nelson to recover on county warrants. From the judgment rendered, plaintiff appeals.

Modified.

Modified and affirmed.

Newman & Resser, for appellant.

The bonding act was mandatory in fact although permissive in form, its object was to enable the county to pay outstanding warrants for which it had received consideration. The holders of these warrants were to be benefited by the provisions of the law. Southerland on Statutory Const. 598; Supervisors v. United States, 4 Wall. 435; Mason v Fearson, 9 How. 259; Galena v. Amy, 5 Wall 705; Ry. Co. v. Napa Co., 52 Cal. 435; Stanton v. Ashbury, 41 Cal. 525; Peo. v. Supervisors, 51 N.Y. 401; Conway v. Supervisors, 68 N.Y. 114; Lockport v. Supervisors, 49 Hun. 32.

The legislature is presumed to have acted upon evidence and to have had full knowledge of all facts involved in their action and not to have done a vain thing. Sutherland on Stat. Const 331; Brown v. The Mayor, 63 N.Y. 239; Shaver v. Eldred, 114 N.Y. 243. The provision for the payment of the warrants validates them by implication and is as effectual for that purpose as though the statute expressly declared the warrants valid. Southerland on Stat. Const. § 334; United States v. Babbit, 1 Black. 55; Beloit v. Morgan, 7 Wall. 619; Brown v. Mayor, 63 N.Y. 339; Nelson v. Mayor, 63 N.Y. 535.

Wm. H. Standish, for respondent.

The warrants were issued for sums beyond what could be realized from the taxes levied for the then current year--were not authorized by a vote of the people and are ulra vires and void. Crampton v. Zabroski, 25 Law Ed. 1670, 11 Otto 601; United States v. Macon County, 8 Otto 624, 25 Law Ed. 331; Anthony v. Jasper County, 101 U.S. 693, 25 Law Ed. 1005; Wells v. Supervisors, 102 U.S. 625, 26 Law Ed. 122; City of Parkersburg v. Brown, 1 S.Ct. 442; Ogden v. County, 102 U.S. 634, 26 Law Ed. 263; Hopper v. Town of Covington, 6 S.Ct. 1025; County of Daviess v. Dickinson, 6 S.Ct. 897; Dixon County v. Field, 111 U.S. 834; Lake County v. Rollins, 9 S.Ct. 651; Lake County v. Graham, 9 S.Ct. 654; 1 Dillon Muc. Corp. 44; Capital Bank of St. Paul v. School Dist. No. 53, 1 N.D. 479, 48 N.W. 363; Bank v. Willow Lake School Tp., 1 N.D. 26, 44 N.W. 1002. The corporation is not estopped to set up the defense of ultra vires, it is bound only where its agents or officers, keep within the limits of the chartered power. 1 Dillon Muc. Corp. 567, 361; Wall v. Monroe County, 13 Otto 74; Mayer v. Ray, 19 Wall. 468; Hodges v. Buffalo, 2 Denio 110; Halstead v. Mayor, 3 N.Y. 430; People v. County, 11 Cal. 170; Sturdefant v. Liberty, 46 Me. 457; Smith v. Chesire, 13 Gray 318; Dalrymple v. Whittingham, 26 Vt. 185; Hubbard v. Linden, 28 Wis. 674. These warrants having been issued without authority of law are void in the hands of purchasers. Goodnow v. Commissioners, 11 Minn. 12; County v. Wolcott, 13 Otto 559; Gould v. Town, 23 N.Y. 463; Bissell v. Ry. Co., 22 N.W. 289; Clark v. City of Des Moines, 19 Ia. 199; Field on Ultra Vires, 449. The evidence of ratification should be as clear as that of an original authority and no act operates as a ratification, unless with a full knowledge of the circumstances it was so intended to operate. Wisconsin Bank v. Morley, 19 Wis. 72; Savage v. Davis, 18 Wis. 608; Dodge v. McDonnell, 14 Wis. 601; Awings v. Hull, 9 Peters 607; 1 Parsons on Const. 54; Dickinson v. Conway, 12 Allen, 493; Gill v. Bailey, 17 N.H. 18; Hozeldew v. Batchelder, 44 N.H. 40. The intention of the legislature to validate the warrants must clearly appear from the terms of the curative act. Dillon Muc. Corp. 637, § 544; Hayes v. Holly Springs, 5 S.Ct. 785, 114 U.S. 120.

BARTHOLOMEW C. J. CORLISS, J., (dissenting.)

OPINION

BARTHOLOMEW, C. J.

The plaintiff sought to hold the defendant liable upon certain county warrants. These warrants were regular in form, and purported to be used for debts incurred by the county; but it is uncontroverted that, in so far as the trial court refused to give judgment upon these warrants against the defendant, the warrants were originally illegal and void. The debts which they represented were obligations which the board of county commissioners had no authority to create, because the expenditures at the time were in excess of the amount which could be provided for by the current revenue of the county from the tax levy of the year. It is unnecessary to refer to the statute or other authority which renders void these warrants representing such expenditures. The counsel for plaintiff makes no contention against their original invalidity, but strenuously urges here that they have been transmuted into legal obligations of the county by an act of the legislature passed March 13, 1885, which provides as follows:

"An act to authorize the county commissioners of Nelson County, Dakota, to fund the outstanding indebtedness thereof.

"Be it enacted by the legislative assembly of the Territory of Dakota:

"SECTION 1. That the board of county commissioners of the County of Nelson, in the Territory of Dakota, be empowered, and are hereby authorized, to issue bonds for not less than five hundred (500) dollars each, the total amount of such issue not to exceed thirty thousand (30,000) dollars; said bonds to draw interest at a rate not to exceed eight (8) per cent. per annum, payable annually at the county treasurer's office of said Nelson County. Said bonds shall specify on their face the date, amount, for what purpose issued, the time and place of payment and rate of interest. Said bonds and coupons thereto attached shall be severally signed by the chairman of the board of county commissioners of said Nelson County, and attested by the clerk or auditor of said Nelson County, said bonds to be payable at the office of the county treasurer of Nelson County, or such other place as the board of county commissioners may designate.

"SEC. 2. Said bonds shall be dated the first day of July, A. D. 1885, and shall be payable in twenty (20) years, with the privilege of calling in said bonds at any time after ten (10) years.

"SEC. 3. The board of county commissioners of said Nelson County is hereby authorized, and it is made their duty to levy a sufficient tax for each year, besides the ordinary tax authorized by law, to be levied for the purpose of paying the interest of said bonds; provided further, that seven (7) years after the time of issue of said bonds, it is made the duty of said board of county commissioners to levy a sinking fund for the purpose of paying off and redeeming said bonds, said tax not to exceed two (2) mills on the dollar of the valuation of said county in any one year.

"SEC. 4. It is hereby made the duty of the county treasurer of Nelson county to negotiate the sale of said bonds, and to call in all outstanding county warrants whenever the bonds are sold, and he, said county treasurer, shall be allowed two (2) per cent. commission as his fees, and no more, for negotiating said bonds, and paying out said money; provided further, said bonds shall not be sold for less than par.

"SEC. 5. That after issuing the bonds mentioned in § 1 of this act, no warrants shall be issued by the county board unless at the time of issuing the same there is money enough in the county treasury of Nelson County to pay the warrants so issued.

"SEC. 6. This act shall take effect and be in force from and after its passage and approval.

"Approved March 13th, 1885."

Respondent's counsel contends that there was no intent or purpose on the part of the legislature, in the enactment of this statute, to validate any invalid warrants. His position may be thus stated in brief: To legalize void evidences of municipal indebtedness, the purpose to validate them must be clearly expressed by the legislature, or be deducible from the statute by necessary implication, and that in the statute in question there is neither a clearly expressed nor necessarily implied intention to validate any invalid warrants of Nelson County. The legal proposition involved in this position is sound, both upon principle and authority. Dill. Mun. Corp. § 544; Hayes v. Holly Springs, 114 U.S. 120, 5 S.Ct. 785, 29 L.Ed. 81; Beloit v. Morgan, 74 U.S. 619, 7 Wall. 619, 19 L.Ed. 205; Brown v. Mayor, 63 N.Y. 239. But we encounter here the ever-recurring difficulty of applying recognized legal principles to the facts of a given case. It might greatly lessen the labor of courts if the legislative intent were always expressed in clear and unequivocal language. It might benefit the tax payers and the state if validating acts were always couched in express and unmistakable terms. But it is not the province of a court to dictate the language that shall clothe legislative enactments. Courts may say in certain cases, as they do in this, that they will accept no doubtful construction, but, when that which it is clearly provided shall be done cannot be done without accomplishing a certain result, it must be presumed that it was the legislative purpose to accomplish such result, and courts cannot excuse their failure to give effect to this legislative purpose by saying that the legislature might have used more apt terms in which to declare it. It must then be our sole purpose, in this case, to ascertain whether the legislature, by the enactment in question, clearly and necessarily evinced the legislative intent and purpose to validate the invalid warrants of Nelson County.

At the time of the passage of said act, certain facts existed,--some of them notorious, and others of them of record, and brought to our attention by the abstract in ...