In re Apportionment of Indebtedness Between Fremont and Big Horn Counties

• Citation: 8 Wyo. 1,54 P. 1073
• Parties: IN RE APPORTIONMENT OF INDEBTEDNESS BETWEEN FREMONT AND BIG HORN COUNTIES. SAME BETWEEN JOHNSON AND BIG HORN COUNTIES. SAME BETWEEN SHERIDAN AND BIG HORN COUNTIES
• Decision Date: 14 November 1898
• Court: Wyoming Supreme Court

54 P. 1073

8 Wyo. 1

IN RE APPORTIONMENT OF INDEBTEDNESS BETWEEN FREMONT AND BIG HORN COUNTIES. SAME BETWEEN JOHNSON AND BIG HORN COUNTIES. SAME BETWEEN SHERIDAN AND BIG HORN COUNTIES

Supreme Court of Wyoming

November 14, 1898

RESERVED Questions from the District Court, Sheridan County HON. JOSEPH L. STOTTS, Judge.

Proceedings for the apportionment of the indebtedness of the original counties of Fremont, Johnson, and Sheridan, between them respectively and the county of Big Horn, created out of territory taken partly from each of said original counties. The opinion contains a full statement of the facts.

Melville C. Brown and J. S. Vidal, for Fremont County.

The power to divide counties and apportion indebtedness is lodged solely in the Legislature. Its action in the premises is final and conclusive. Having appointed a tribunal to make the apportionment, and fixed a rule by which it is to be made, it can not be successfully contended that something is to be done not provided for, or that some discretion is lodged in a tribunal where none is indicated by the legislative enactment. (Sutherland on Stat. Const., Sec. 473; Dillon on Mun. Corp., Secs. 10, 34, 35, 127-129; Board v Board, 92 U.S. 307; id., 1 Wyo. 137.) The right emanating from the statute, and a specific remedy provided the right can be vindicated in no other way. (Suth. Stat. Const., Secs. 399, 454, 459; Sudley v. Mayhew, 3 N.Y. 9; Dickinson v. Van Wormer, 39 Mich. 141; Wells on Jurisdiction, p. 55; Morse v. Presley, 5 Foster, 299.) When courts of general jurisdiction are exercising special statutory authority, their proceedings stand upon the same footing as courts of limited and inferior jurisdiction. (Deming v. Corwin, 11 Wend. 647; Jackson v. Estey, 7 id., 148; Sharp v. Spier, 4 Hill, 11; Striker v. Kelly, 7 id., 76; Buck v. Dowley, 16 Gray, 558; Salon v. State, 5 Tex. App., 301.)

The statute is not repugnant to the constitution. The constitutional limitations upon the creation of county indebtedness affects the imposition of a proportionate liability upon the new county, for the debts of the old county. In fact, such liability is imposed by the constitution itself. The constitution should be so construed as to harmonize and give force to all its provisions. Cooley Const. Lim., 58, and cases cited.)

The court has no authority to inquire into the validity of the debts of the old county, as reported by its board of commissioners. (Blaine v. Smith (Idaho), 48 P. 286; Orange Co. v. Los Angeles County (Cal.), 46 P. 173; Com'rs v. Barker, 16 Kan. 498; Tulare v. Kings Co., 49 P. 8; Mills Co. v. Brown Co., 29 S.W. 650; Lawrence Co. v. Meade Co., 62 N.W. 131; Brown Co. v. Rock Co., 70 N.W. 943; Halliday Co. v. Sweet Grass Co., 48 P. 553; Colusa v. Glenn Co., 49 P. 457.

T. P. Hill, Charles H. Burritt, and Alvin Bennett, for Johnson County.

The district court can not inquire into the legality of the debt of Johnson County. 1. Because this is not an ordinary action at law, in which Big Horn County can appear and litigate the validity of the debts. It is a special proceeding under the statute, and if the court should venture to pass upon that question, the very object of the law would be defeated. Blaine Co. v. Smith, 48 P. 286. 2. Big Horn County is estopped from claiming that the debt is illegal, which it assumed upon its organization. Tone v. Columbus, 39 O. St., 281; Stewart v. Hovey, 26 P. 683. (Other points were urged and authorities cited, covered in the abstract of the brief of counsel for Fremont County.)

C. F. Rathbone, E. E. Lonabaugh, and W. S. Metz, for Big Horn County.

The territorial statutes providing the method and proceedings for apportioning indebtedness between an old and new county, is unconstitutional, and was repealed by Art. 12 of the constitution, which requires a new county to bear a just proportion of the indebtedness of the parent county. Big Horn County was organized after the constitution took effect. The constitutional provision is not self-executing. No act of the State Legislature having been passed upon the subject, no means are provided, by law, for enforcing the said provision.

The former statute is unconstitutional for the reason also that it permits a debt to be imposed upon the new county in excess of constitutional limitations upon the creation of county indebtedness. In the absence of valid statutory provision to the contrary, an old county, out of which a new one is formed, will be entitled to all public property and liable for all its debts. (32 P. 316; 16 Mass. 86; 92 U.S. 309; 31 Wis. 120; 39 Cal. 414; 28 P. 1067; 31 id., 800; 63 N.W. 760; 29 S.W. 650; 18 id., 1021; 62 N.W. 131; 53 id., 491; 7 Wall., 613; 26 P. 891; 49 id., 8; id., 173; Dillon's Mun. Corp., 188, 189.)

If the territorial statute is held to be valid, then it is insisted that the tribunal provided thereby to determine the amount of the indebtedness, to be apportioned, is the district court, and not the board of commissioners of the original county. The entire matter--the amount and legality of the alleged indebtedness--is for the court to adjudge and determine. The statute in reference to the power and duty of the court uses such words as "shall hear and determine." It would be inequitable to impose a liability for a void claim upon a new county. The report prepared, in pursuance of the statute, by the board of the parent county, can not be considered, in any sense, as a determination of the question as to the amount and validity of the debts of the county. If a debt is void, it is of no binding force upon the old county which incurred it, and can have no greater force as against the new county.

The delinquent taxes are an asset of the parent county, and not an obligation of the new, and the new county should not be charged with any portion of them. They can not become of any benefit to the new county. If any loss is to be sustained on their account, it must be borne by the original county. (59 N.W. 488; 63 id., 760; R. S., Sec. 3812.)

All the warrants of Johnson and Fremont Counties issued after the constitution took effect, not having been paid out of the taxes for the various years, and without there being money in the treasury to pay them, are illegal and void by reason of the restrictions of the constitution. (80 F. 672; 41 P. 556; 19 So. 282; 44 P. 103; 10 id., 641; 87 Ill. 385; 84 id., 626; 52.) It is no part of the duty of the court to make or unmake, but simply to construe the constitution. (52 Wis. 37; 87 Ill. 395; 49 P. 409; 39 id., 485; 36 id., 318; 12 S.Ct. Reporter, 220; 19 So. 282.) There is no power in the court to impose a debt upon the new county beyond the taxes for the current year without a vote of the people. (19 S.E. 57; Const. Art. 16, Secs. 3 and 4.)

The statements of the old counties show the debts to be in excess of the constitutional limit. The burden of proof, therefore, is upon them to show that they are valid claims against the new county. (49 P. 23; id., 296.) As the new county was not a party to the actions wherein certain judgments were rendered against the respective parent counties, the former may go behind them for the purpose of showing the illegality of the claims which were sued on and passed into judgments. (53 N.W. 491; 45 P. 501.)

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

STATEMENT OF THE CASE.

The County of Big Horn was finally organized on the 4th day of January, A. D. 1897. The territory embraced therein had formed a part of three several counties, viz.: Fremont, Johnson, and Sheridan. These proceedings were instituted by the filing in the office of the Clerk of the District Court for Big Horn County of a report of the Board of County Commissioners of the County of Fremont, showing the amount of the indebtedness of that county, at the date of the organization of Big Horn County, and the other matters required by law in such cases. For the convenience of all parties interested the District Court, sitting within and for the new county, transferred the proceedings for further consideration to the District Court for the County of Sheridan, which is in the same judicial district and is presided over by the same judge. Subsequently, Johnson and Sheridan Counties filed in the District Court of Sheridan County similar statements, or reports, but each of them were entitled or denominated a "petition," evidently based upon the theory that the proceedings were of the nature of a suit against the new county. The error thus made, is, however, not material, as the statements are properly verified and may be treated as the reports authorized by statute.

It seems that the reports from the three counties were heard together, although separate answers were filed on behalf of Big Horn County. When the matters came before the District Court for consideration, certain questions arose deemed to be difficult and important, and were reserved to this court for its decision. So far as the claim of Sheridan County is concerned, we were informed upon argument that an amicable arrangement had been effected between that county and Big Horn County.

In 1882, the Legislature enacted a general law concerning the apportionment of county indebtedness upon the organization of new counties out of territory formerly included in another or other organized counties. Such provisions are now contained in sections 678 to 683 inclusive of the Revised Statutes of 1887. Section 678 provides that a newly organized county formed out of territory detached from any other duly organized county, or counties, shall be held liable for the payment of a just and equitable proportion of the indebtedness of such original county or counties existing at the time of the organization of the new county. The...