Fales v. Multnomah County

• Decision Date: 30 July 1926
• Citation: 248 P. 151,119 Or. 127
• Parties: FALES v. MULTNOMAH COUNTY ET AL.
• Court: Oregon Supreme Court

248 P. 151

119 Or. 127

FALES v. MULTNOMAH COUNTY ET AL.

Supreme Court of Oregon

July 30, 1926

In Bank.

Mandamus by Palmer L. Fales against Multnomah County and others. Writ dismissed.

Hall S. Lusk, of Portland (Emmons, Lusk & Bynon, of Portland, on the brief), for petitioner.

Stanley Myers, Dist. Atty., of Portland (Samuel H Pierce, Deputy Dist. Atty., of Portland, on the brief), for defendants.

BEAN J.

This in an original proceeding in mandamus, brought by the petitioner, a resident taxpayer, and legal voter of Multnomah county, Or., to compel the county and its commissioners to proceed in accordance with law in the issuance of certain county road bonds authorized by the voters at a special election held on the date of the primary nominating election May 21, 1926. The case comes before the court on a demurrer to the alternative writ of mandamus.

From the writ it appears that permanent road construction bonds of Multnomah county, amounting to $2,500,000, were authorized by the electors at the special election so held. The notice of this election stated that the bonds should mature in 30 years. On June 23, 1926, the county commissioners ordered the issuance and sale of $750,000 of such bonds. By this order it was provided that the bonds to be issued should be in denominations of $1,000 each, dated August 12, 1926, should be numbered serially from one to 750, and should mature and be redeemable in equal amounts beginning the 1st day of August, 1932, and the 1st day of August of each and every year thereafter until August 1, 1956. By this method 30 bonds would mature each year beginning with the sixth year after the date of issuance.

Petitioner contends that the County Road Bonding Act (Or. L. §§ 4625-4649) does not authorize the issuance of the bonds to mature in such manner, but that one or the other of the two following systems of maturities should be followed: (1) That all of said bonds so issued should mature and be payable in a block unconditionally at the expiration of the 30-year term specified in the election notice; or (2) that said bonds should mature and be payable at the end of said 30-year period, with the right reserved by the county to redeem an equal amount each year, beginning with the first year.

The demurrer raises the question of the validity of the $750,000 issue of bonds with maturities from the sixth to the thirtieth year from date, in accordance with the order of the board of commissioners dated June 23, 1926.

Article 4, § 1A, of the Constitution ordains in part as follows:

"The initiative and referendum powers reserved to the people by this Constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special, and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation."

Section 4625, Or. L., provides as follows:

"Bonds may be issued by any county in this state for the purpose of raising money to be used for the construction and maintenance of permanent roads in that county as hereinafter provided."

The act then provides the manner of calling and holding elections pursuant to a petition of the voters of a county under the Initiative and Referendum Law, and section 4634, Or. L which provides that the county court of its own motion may submit the question of issuing bonds for road construction and maintenance.

Section 4638, Or. L., is as follows:

"Beginning with the fourth year after the bonds are sold the county court shall each year thereafter, until the maturity of bonds, set aside as a special fund for the payment of the bonds such percentage of the face value of the bonds as at the date of their maturity shall aggregate the full face value thereof. Where bonds are issued in different series maturing at different times a separate redemption fund shall be provided for each series of such bonds. The amount necessary to provide this redemption fund and to pay the annual interest on outstanding bonds shall be added to the general levy of taxes as may be required, which tax shall be levied upon all the taxable property within the county." (We call attention to a portion by underscore.)

Section 4641, Or. L., which was not a part of the original act, but was added as an amendment by chapter 12, § 1, Gen. Laws of Or. for 1917, reads as follows:

"After the issuance of bonds has been authorized by an election held in accordance with the provisions of this act, the county court may, in its discretion, in lieu of bonds redeemable only at the time stated in the notice, issue bonds, reserving the right to redeem them or any portion thereof serially each year, and make such reservations in the order providing for their issuance. When bonds are issued with such reservation, the redemption fund provided for in this act may be used each year, as it is collected, for the redemption of such proportion or percentage of such bonds as will redeem all of them at the end of the time fixed in the prior proceedings for the maturity of such bonds, instead of being kept and deposited or loaned as provided in this act until the final maturity of the bonds."

It is apparent that the two latter sections provide two plans for the redemption of bonds, either one of which may be followed by the county commissioners in their discretion.

The form of notice of election in section 4630, Or. L., provides for the submission of the question of issuing straight term bonds, all due upon a certain date, or in a certain number of years. This section provided the form of special election notices, and contains the provision that, of the bonds to be authorized, "no more than _______ dollars to be issued in any one year." This section requires that the notice shall specify, among other things, the length of time that the bonds shall run. Section 4641 was evidently added to the act for the express purpose of authorizing serial bonds. Section 4638, which is a part of the original act, already provided that, where bonds are issued in different series "maturing at different times a separate redemption fund shall be provided for each series of such bonds," but, to follow the form of notice and direction of the statute, there was no provision for issuing bonds, of one issue, due at different dates, or serial bonds, hence the act of 1917, adding section 4641, Or. L., for the express purpose of authorizing serial bonds. This was enacted in order to use the special or sinking fund, required to be set aside each year, commencing the fourth year after the bonds are sold, until the maturity of the bonds. For a county to hold such funds, it would be impossible to realize as high a rate of interest as it would be required to pay on the bonds. This was the evil (if money can be considered an evil) which the Legislature in its wisdom saw fit to correct by the enactment of section 4641. Some of the language of the latter section is cloudy and inapt. The question in this case largely depends upon the construction of it. However, in construing this section, the whole act must be looked to and considered and the intent of the lawmakers called out, if possible, from the language of the act. The amendatory act provides no manner of exercising an option to redeem the bonds, either by giving notices to holders thereof or otherwise. The intention of a statute, when ascertained, controls in the construction of its parts. 2 Lewis' Sutherland Stat....