Manly v. Board of Com'rs of Pueblo County

• Decision Date: 01 November 1909
• Court: Colorado Supreme Court
• Parties: MANLY v. BOARD OF COM'RS OF PUEBLO COUNTY.

104 P. 1045

46 Colo. 491

MANLY v. BOARD OF COM'RS OF PUEBLO COUNTY.

Supreme Court of Colorado, En Banc.

November 1, 1909

Error to District Court, Pueblo County; J. E. Rizer, Judge.

Action by George C. Manly against the Board of County Commissioners of the County of Pueblo. Judgment for defendant, and plaintiff brings error. Affirmed.

George C. Manly, pro se.

Alva B Adams, Devine, Dubbs & Preston, and Lucius W. Hoyt, for defendant in error.

CAMPBELL, J.

The object of this action was to enjoin the board of county commissioners of Pueblo county from issuing $350,000 refunding bonds after a favorable vote of the people at an election. Relief was denied, and plaintiff appeals.

The case went off on a general demurrer to the complaint. It appears from the complaint that in the year 1906 there was an outstanding and unpaid indebtedness of Pueblo county in the sum of $350,000, evidenced by refunding bonds issued by the county in January, 1897, under authority of a vote of the people, and there were no funds in the treasury available for their redemption or payment. The board thereupon, for the purpose of refunding these bonds and to reduce the rate of interest, in pursuance of the statute (Sess. Laws 1899, p 166, c. 90), resolved to submit to the qualified electors of the county, at the general election to be held in the county in November, 1906, the question of their redemption. The majority vote at the election was in favor of the issue which the board was about to consummate when this action was instituted. Plaintiff urges three objections to the validity of the proposed issue. Preliminary to their discussion, and as a general statement of facts, it should be said that the $350,000 outstanding debt was evidenced by a series of refunding bonds aggregating that amount, of date January 1897. This series was made up of a previous indebtedness evidenced by two separate issues of funding bonds, the first made in 1884, of which $125,000 was unpaid, and the second, of $225,000, in 1885, to take up an old indebtedness contracted by the county prior to the adoption of the state Constitution, in giving aid to certain railroads under the authority of the territorial statutes then in force. In 1888, section 6 of article 11 of the Constitution was amended, and therein it was provided that no county shall contract any debt by loan in any form, except for the purpose of erecting public buildings, making or repairing public roads and bridges. The amount of the indebtedness was limited, and there was this proviso to the amended section: 'That any county in this state which has an indebtedness outstanding, either in the form of warrants issued for purposes provided by law prior to December 31, A. D. 1886, or in the form of funding bonds issued prior to such date for such warrants previously outstanding, or in the form of public building, road or bridge bonds outstanding at such date, may contract a debt by loan by the issuance of bonds for the purpose of liquidating such indebtedness, provided the question of issuing said bonds shall, at a general or special election called for that purpose, be submitted to the vote of such of the duly qualified electors of such county as in the year last preceding such election shall have paid a tax upon property assessed in such county, and the majority of those voting thereon shall vote in favor of issuing the bonds. Such election shall be held in the manner prescribed by the laws of this state for the issuance of road, bridge and public building bonds, and the bonds authorized at such election shall be issued and provision made for their redemption in the same manner as provided in said law.'

1. The first contention of plaintiff is, as we understand it, that the bond issue of 1897, which it was proposed to refund, is itself illegal because, under amended section 6, art. 11, of the Constitution, the county was prohibited from making that bond issue, because the debt for which such bonds were issued was not contracted for public buildings, making, or repairing public roads, bridges, or funding debts. While not' conclusive upon this question, yet having some weight, our General Assembly has from time to time (Sess Laws 1883, p. 142; Sess. Laws 1889, p. 31; Sess. Laws 1895, p. 152, c. 67; Sess. Laws 1899, p. 166, c. 90; Sess. Laws 1901, p. 148, c. 61) passed acts for refunding county bonds. Section 6 does not in express terms authorize refunding, but refunding is not thereby prohibited. A 'refunding' is merely a funding again or anew. The section clearly authorizes funding of bonds to pay an illegal debt. Indeed, that was its principal purpose, and it would seem necessarily to follow that whatever debt can be funded may be refunded by the same authority. In Re Funding of County Indebtedness, 15 Colo. 421, 24 P. 877, this section was before the court for consideration. In so far as the decision in that case bears upon any question here involved, the ruling was that the proviso of the section was intended to enlarge the power of the Legislature, and its chief object was to permit the funding of illegal indebtedness, which could...