Geer v. Board of Com'rs of Ouray County

• Decision Date: 09 October 1899
• Docket Number: 1,194.,1,193
• Citation: 97 F. 435
• Parties: GEER v. BOARD OF COM'RS OF OURAY COUNTY. BOARD OF COM'RS OF OURAY COUNTY v. GEER.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F. 435

GEER v. BOARD OF COM'RS OF OURAY COUNTY.

BOARD OF COM'RS OF OURAY COUNTY v. GEER.

Nos. 1,193, 1,194.

United States Court of Appeals, Eighth Circuit.

October 9, 1899

The writs of error in this case challenge a judgment in favor of the board of county commissioners of the county of Ouray which was rendered in an action brought by Robert C. Geer to enforce the collection of overdue coupons cut from certain refunding bonds issued by that county. The plaintiff, Geer, in his complaint alleged that prior to May 1, 1890, the defendant, the county of Ouray, was indebted to various persons, who had brought actions and had recovered judgments against it in courts of competent jurisdiction for the aggregate amount of $200,000; that for the purpose of paying these judgments the county issued and delivered to its judgment creditors its bonds and coupons in compliance with the terms of an act of the legislature of the state of Colorado approved April 17, 1889 (1 Mills' Ann. St. 1891 Secs. 945-948); that the creditors accepted these bonds in payment of their judgments; that the bonds contained this recital: 'This bond is issued by the board of county commissioners of said Ouray county, under and by virtue of an act of the general assembly of the state of Colorado entitled 'An act to enable the several counties of the state to refund their bonded debt which has matured, or may hereafter mature, and to issue bonds in satisfaction of judgments and matured bonds,' approved April 17th, A.D. 1889, in satisfaction at par of judgments and accrued interest thereon which have been rendered in the courts of record in this state against Ouray county aforesaid;' and that he had become the owner for value of that part of this issue of bonds to which the coupons in suit were attached. The county answered this complaint. In its answer it pleaded eight separate defenses. The court sustained a demurrer to the entire answer. Thereupon the defendant amended the sixth and seventh defenses, the plaintiff demurred to them as amended the court overruled that demurrer, the plaintiff filed a replication, the defendant demurred to the replication, and the court overruled the demurrer to the replication and rendered judgment for the county. Each party has sued out a writ of error. The plaintiff, Geer, assigns the overruling of his demurrer to the amended sixth and seventh defenses, and the sustaining of the demurrer to his replication, as error and the county insists that the court erred when it sustained the demurrer to its second, third, fourth, and fifth defenses. These defenses are stated and treated in the opinion.

A. E. Pattison (William Story, on the briefs), for Robert C. Geer.

C. S. Sigfrid and Thomas C. Brown (Lyman I. Henry, on the briefs), for the county of Ouray.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The first error alleged by the county is that the court below did not sustain the second defense pleaded in its answer. That defense was that the act of April 17, 1889, which provided that 'the board of county commissioners of any county in this state, against which a judgment has been or may be rendered in any of the courts of record in this state, may issue its bonds in satisfaction of such judgment and accrued interest thereon, dollar for dollar; such bonds to draw interest at not to exceed eight per centum per annum' (Sess. Laws, Colo. 1889, pp. 31, 32, Sec. 2), was void, and did not authorize the constitution of Colorado, as amended in 1888, prohibited the creation of the debt evidenced by these refunding bonds without a favorable vote of the electors of the county. The question has already been determined in this court. The answer to the proposition is that the prohibition of the constitution of Colorado is against the creation of a debt by loan, and the mere exchange of the judgments against a county for its refunding bonds creates no debt by loan, or in any other way. The debts existed before as well as after the exchange. The judgments and the bonds are nothing but the legal evidences of the existence of these debts, and the exchange of the one for the other merely changes the form of the obligations. In Board v. Platt, 49 U.S.App. 216, 220, 25 C.C.A. 87, 89, and 79 F. 567, 569, the question of the validity of refunding bonds issued under this very act of 1889 was presented to this court, considered, and decided. The statement which precedes that opinion contains a complete copy of section 6, art. 11, of the constitution of Colorado as it was amended in 1888. A careful consideration of that section after exhaustive argument forced us to the conclusion that the constitution of Colorado imposed no limitation or prohibition upon the power of the legislature to authorize municipal or quasi municipal corporations to refund their debts. It is sufficient to say now, without again reciting at length the section of the constitution in question, or enlarging upon what seems to us its evident meaning, that the briefs and arguments in this case have only served to strengthen and deepen the conviction of the correctness of the ruling in the Platt Case, which in the meantime has been repeatedly affirmed and applied to other cases of the same character. E. H. Rollins & Sons v. Board of Com'rs of Gunnison Co., 49 U.S.App. 399, 411, 26 C.C.A. 91, 98, and 80 F. 692, 698; City of Huron v. Second Ward Sav. Bank, 57 U.S.App. 593, 604, 30 C.C.A. 38, 44, and 86 F. 272, 278. The result is that section 6, art. 11, of the constitution of Colorado, as amended in 1888, does not limit the power of the legislature of that state to empower municipal and quasimunicipal corporations to refund their debts without a vote of the people; and the act of the general assembly of Colorado of April 17, 1889, which empowered counties to refund their judgment and bonded debts was not unconstitutional because it failed to make a favorable vote of the electors a condition precedent to the issue of the refunding bonds.

The third defense of the county was that the act of 1889 was void because it violated section 21, art. 5, of the constitution of Colorado, which reads:

'No bill except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.'

The title of the bill in question was:

'An act to enable the several counties of the state to refund their bonded debt which has matured, or may hereafter mature, and to issue bonds in satisfaction of judgments and matured bonds.'

The alleged vice of the act is that it contained more than one subject, in that it embraced the subject of refunding county debts evidenced by bonds, and the subject of refunding county debts evidenced by judgments. If this is a vice, it is not perceived why a bill to enable the counties of the state to refund their debts evidenced by bonds alone would not be equally obnoxious to the prohibition of the constitution; for the debt evidenced by each bond is a different debt and a different subject from that evidenced by every other bond, in the same sense that a county debt evidenced by a judgment is a different subject from one evidenced by a bond.

The deliberate enactments of legislatures cannot be whistled down the wind on such frivolous pin points as this. The object of this constitutional provision was twofold. It was to prevent surreptitious legislation, the insertion of enactments in bills which were not indicated by their titles, and to forbid the treatment of incongruous subjects in the same act. It never was intended to prevent the legislature from treating all the various branches of the same general subject in one law, or from inserting in a single act all the legislation germane to its principal subject. Travelers' Ins. Co. v. Oswego Tp., 19 U.S.App. 321, 332, 7 C.C.A. 669, 676, and 59 F. 58, 64; City of Omaha v. Union Pac. Ry. Co., 36 U.S.App. 615, 623, 20 C.C.A. 219, 223, and 73 F. 1013, 1017; City of South St. Paul v. Lamprecht Bros. Co., 31 C.C.A. 585, 587, 88 F. 449, 451; Clare v. People, 9 Colo. 122, 125, 10 P. 799; Canal Co. v. Bright, 8 Colo. 144, 149, 6 P. 142; People v. Goddard, 8 Colo. 432, 436, 7 P. 301; Tabor v. Bank, 27 U.S.App. 111, 10 C.C.A. 429, and 62 F. 383; Johnson v. Harrison, 47 Minn. 575, 577, 50 N.W. 923; Montclair v. Ramsdell, 107 U.S. 147, 2 Sup.Ct. 391; Cooley, Const. Lim. (6th Ed.) pp. 169-172, and cases there cited. The general subject of the act of 1889 was the refunding of county debts. Judgments, bonds, and warrants are different forms of such debts; and the refunding of any or all county debts is but one general subject, and may well be embraced in a single act. The fact that but two branches of this general subject-- the refunding of judgments and bonds-- are treated in this act does not render it obnoxious to the inhibition of the constitution. It is not a valid objection to the act of 1889, under section 21, art. 5, of the constitution, that it treats of refunding both judgments and bonds, because the refunding of judgments against counties and the refunding of their bonds are but branches of a single subject,-- the general subject of refunding county debts.

The fourth defense was that section 4 of the act of 1889 was void because it was in conflict with section 24 of article 5 of the constitution of Colorado, which reads:

'No law shall be revived, or amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at

...