Jones v. Power County

• Decision Date: 16 July 1915
• Citation: 27 Idaho 656,150 P. 35
• Parties: J. R. JONES, Plaintiff, v. POWER COUNTY, IDAHO, W. S. SPARKS, M. E. WALKER, and C. F. EGGERS, as Members of and Constituting the Board of County Commissioners of said County, F. NETTIE RICE, as County Treasurer and Tax Collector, PAUL BULFINCH, as Clerk of the Board of County Commissioners and County Auditor, O. F. CROWLEY, as County Assessor, and KEELER BROTHERS, a Corporation, Defendants
• Court: Idaho Supreme Court

150 P. 35

27 Idaho 656

J. R. JONES, Plaintiff, v. POWER COUNTY, IDAHO, W. S. SPARKS, M. E. WALKER, and C. F. EGGERS, as Members of and Constituting the Board of County Commissioners of said County, F. NETTIE RICE, as County Treasurer and Tax Collector, PAUL BULFINCH, as Clerk of the Board of County Commissioners and County Auditor, O. F. CROWLEY, as County Assessor, and KEELER BROTHERS, a Corporation, Defendants

Supreme Court of Idaho

July 16, 1915

NEWLY ORGANIZED COUNTIES-LAWS APPLICABLE TO-POWERS AND DUTIES OF BOARDS OF COMMISSIONERS-EXPENDITURES-INDEBTEDNESS-FUNDING BONDS-CONSTITUTIONAL LAW.

1. The general laws of the state applicable to new counties authorize them to cause to be transcribed certain records; to provide furniture, fixtures, record books, etc., and to provide county jails. The ordinary and necessary expenses of a new county include expenditures for these purposes and the county commissioners are not prohibited from making such expenditures, when necessary, in order to place the county government in operation, without submitting the question to a vote of the electors, even though the indebtedness thereby incurred exceeds the income and revenue provided for the county for that year.

2. Although the act of the legislature creating a new county provides that its commissioners shall make provision for the payment of any bonded indebtedness which may be apportioned to it, by levy and taxation at the time fixed by law for so doing, and in the same manner as the commissioners of the counties from which its territory is derived, should or could have done, that method of taking care of such indebtedness is not exclusive, and it was competent for the legislature to and it did permit the additional method provided in chap. 20 Sess. Laws 1915.

3 Chap. 20, Sess. Laws 1915, provides a means whereby the warrant indebtedness of counties, situated as is Power, may be extinguished by the issuance of funding bonds, and that chapter governs this case.

4. A statute is general if its terms apply to, and its provisions operate upon, all persons and subject matters in like situation. Chap. 20, Sess. Laws 1915, examined and held to not contravene sec. 5 of art. 18 or sec. 19 of art. 2 of the constitution of Idaho, providing that "the legislature shall establish, subject to the provisions of this article, a system of county government which shall be uniform throughout the state; and by general laws shall provide for township or precinct organization"; also "the legislature shall not pass local or special laws in any of the following enumerated cases, that is to say:.... Regulating county and township business or the election of county and township officers."

Petition for writ of prohibition. Alternative writ quashed peremptory writ denied.

Alternative writ of prohibition quashed and peremptory writ denied. Costs awarded to the defendants.

O. R. Baum, for Plaintiff.

The expenses intended by the framers of the constitution to be included in the term "ordinary and necessary" are such as recur with regularity and certainty, and are generally within the usual income and revenue and have some fairly well-defined limits. It was held in Brown v. City of Corry, 175 Pa. 528, 34 A. 854, 855, that any expense that recurs with regularity and certainty and is necessary for the existence of a municipality is an ordinary expense of that municipality. The expense of building a jail costing $ 4, 693.75 is not an expense which recurs regularly or irregularly in the existence of a county. It is an unusual and extraordinary expense. It would be unjust to the taxpayers of the county and contrary to the plain intent of the constitution to leave the board of county commissioners without any restrictions and permit a large indebtedness for a jail to be thrust upon the taxpayers at the very outset of the county's organization. (Bannock County v. Bunting & Co., 4 Idaho 156, 37 P. 277.)

Our position is upheld by the decision of this court in the case of Peavy v. McCombs, 26 Idaho 143, 140 P. 965, wherein it is held that sec. 99, chap. 58, Session Laws of 1913, requires that all warrant indebtedness of a county shall be liquidated only by levy and taxation, and cannot be taken care of through the issuance of funding bonds. The act applies only to counties organized under acts of the state legislature approved subsequent to Jan. 1, 1911. It does not operate in all counties of the state. "To make a classification good, it must be founded on differences and characteristics sufficiently marked and important to make them naturally a class by themselves." (Alexander v. City of Elizabeth, 56 N.J.L. 71, 28 A. 51, 23 L. R. A. 525, 529.)

Richards & Haga, for Defendants.

No expense could more properly be specified as part of the ordinary and necessary expense of the new county than the cost of erecting a jail. An expense need not be one which regularly recurs in order that it may be an ordinary and necessary expense within the meaning of the constitutional provision. (Hickey v. City of Nampa, 22 Idaho 41, 124 P. 280.)

"It is, of course, the duty of commissioners to provide a suitable place for the holding of the courts and public offices, jails, etc., but such rooms must be temporarily provided, at as little expense as is consistent with providing suitable quarters, until the question can be submitted to the people." (Bannock County v. Bunting & Co., 4 Idaho 156, 37 P. 277.)

The bonded indebtedness assumed by Power county from the counties out of which it was created is not required to be liquidated by annual levy and taxation. (Frazier v. Hastings, 26 Idaho 623, 144 P. 1122.)

Since prior to the first session of the state legislature, a statute has been in existence in Idaho (sec. 3602, Rev. Codes); authorizing counties to fund their outstanding indebtedness, and the personnel of the court, contemporaneous with the statute and with the constitutional convention, specifically held that the words "any indebtedness" in the statute included warrant indebtedness. (Bannock County v. Bunting, supra.)

Subsequent to the decision of the court in the Bannock county case, the statute was amended so as to specifically mention warrant indebtedness. It further appears that at the first session of the state legislature subsequent to the decision of this court in Peavy v. McCombs, 26 Idaho 143, 140 P. 965, an act was passed, being chap. 20, Sess. Laws of 1915, which again specifically authorized counties to take up their outstanding warrant indebtedness by the issuance of bonds. "It is an elementary rule that constitutions are to be construed in the light of previous history and the surrounding circumstances." (State v. Sedgwick, 46 Mont. 187, 127 P. 94, 95.)

"One of the methods clearly authorized by this section of the constitution (sec. 15, art. 7) for bringing the business of the counties to a cash basis was and is by issuing bonds for the purpose of taking up outstanding warrants and funding bonds." (Bannock County v. Bunting & Co., 4 Idaho 156, 37 P. 277.) The act is of uniform operation in all counties now existing to which it applies, and the act also applies to any and all counties which may be hereafter formed, organized or created; and it is therefore not special legislation. (Dillon on Municipal Corp., 5th ed., secs. 142, 144.)

It is not necessary that the reasons for the act appear upon its face. (State v. Derbyshire, 79 Wash. 227, 140 P. 540.)

A case directly in point upon the validity of an act relating to certain public improvements authorized in cities which had been organized since a particular date is the case of Owen v. City of Sioux City, 91 Iowa 190, 59 N.W. 3.

"We must assume that, if a state of facts could exist which would justify such legislation, it actually did exist when the statute under consideration was passed." (Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This is an original proceeding to procure the issuance of a writ of prohibition. The plaintiff is a resident and taxpayer of Power county and the defendants W. S. Sparks, M. E. Walker and C. F. Eggers are members of and constitute the board of county commissioners; the defendant F. Nettie Rice is county treasurer and tax collector, the defendant Paul Bulfinch is clerk of the district court and ex officio auditor and recorder and clerk of the board of county commissioners, and the defendant O. F. Crowley is county assessor of said county.

Power county was created by an act of the legislature approved January 30, 1913, of territory segregated from the counties of Cassia, Bingham, Blaine and Oneida. Pursuant to the provisions of chap. 6 of the Sess. Laws of 1913, p. 30, creating the county, the amount of its proportion of the indebtedness of the counties from which it derived its territory was ascertained and apportioned to it, and on June 24, 1915, there remained unpaid upon the indebtedness the sum of $ 49,885, exclusive of interest, of which amount $ 18,360 was due to Oneida county and $ 31,525 was due to Blaine county.

Various expenses were incurred incident to the organization of the county including that of transcribing and certifying records, the purchase of furniture, record books and office supplies; there was also an expense of $ 4,693.75 incurred in the erection of a jail, for all of which warrants were issued.

It appears that a considerable portion of these expenses incident to organization, have been paid, from time to time, out of money from the current expense fund, and that the county has been unable, because of said fund being thus depleted, to redeem some of its warrants which have been issued to meet current expenses. The total warrant indebtedness of the county amounted, on ...