McNutt v. Lemhi County

• Citation: 84 P. 1054,12 Idaho 63
• Parties: DAVID McNUTT, Appellant, v. LEMHI COUNTY et al., Respondents
• Decision Date: 19 February 1906
• Court: United States State Supreme Court of Idaho

84 P. 1054

12 Idaho 63

DAVID McNUTT, Appellant, v. LEMHI COUNTY et al., Respondents

Supreme Court of Idaho

February 19, 1906

RIGHT OF APPEAL BY COUNTY-COUNTY EXPENDITURES ORDINARY AND EXTRAORDINARY-COUNTY INDEBTEDNESS IN EXCESS OF REVENUE-CONSTITUTIONAL PROVISION.

1. Answer made on behalf of the county in this case examined and held sufficient to constitute a defense to plaintiff's cause of action.

2. Section 1776 of the Revised Statutes, as amended by act of February 14, 1899, provides the right of appeal only for persons and taxpayers, and does not contemplate the county itself as a municipal corporation taking an appeal from the action or order of its own board of commissioners.

3. Under the provisions of section 3, article 8 of the constitution, no indebtedness or liability can be lawfully incurred by a county for any given year in excess of the income and revenue of such county for the same year without the assent of two-thirds of the qualified electors of the county voting in favor of incurring such indebtedness or liability at an election held for that purpose, unless such indebtedness or liability is incurred for an ordinary and necessary expense as authorized by the general laws.

4. Where county warrants were issued in the sum of $6,350 for the construction of a wagon road and the question of incurring such indebtedness was not submitted to a vote of the people, and the whole thereof was in excess of the income and revenue of the county for the year in which such indebtedness was incurred, and no provision was made for the payment thereof, such indebtedness is in violation and contravention of the provisions of section 3, article 8 of the constitution, and is therefore void.

5. A county as a municipal corporation cannot ratify an act done in direct violation of the constitution, and in such case the doctrine of ratification cannot be invoked.

6. The necessity for county warrants to be issued in conformity with the requirements of section 2006 of the Revised Statutes which provides that "All warrants must distinctly specify the liability for which they are drawn and when it accrued," considered.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District for Lemhi County. Hon. J. H. Stevens, Judge.

Judgment of the lower court affirmed. Costs awarded to respondent.

R. P Quarles and Gus B. Quarles, for Appellant.

The amended petition or affidavit, and the stipulation of facts show that none of the orders were ever appealed from, hence those orders are valid and bind the county. (Johnson v. Savidge 11 Idaho 204, 81 P. 616; Morgan v. Board of Commrs, 4 Idaho 418, 39 P. 1118; Picotte v. Watt, 3 Idaho 447, 31 P. 805; Rogers v. Hays, 3 Idaho 597, 32 P. 259; Dunbar v. Board etc., 5 Idaho 407, 49 P. 409; Corker v. Elmore Co. Commrs., 10 Idaho 255, 77 P. 634; School Dist. No. 25 v. Rice, 77 Idaho 99, 81 P. 155; In re Grove Street, 61 Cal. 453; Babcock v. Goodrich, 47 Cal. 488.)

In the case at bar no allegation of fraud is made, and no suspicion of unfairness or any intent to do other than their duty is shown against the board of commissioners in letting the contract to Penwell. (Reclamation Dist. No. 537 of Yolo County v. Burger, 122 Cal. 442, 55 P. 156.)

County commissioners or boards of supervisors act in a quasi judicial capacity, and in the absence of fraud, their decisions over matters within their jurisdiction, upon questions of fact, are without remedy other than by appeal, in the courts. (McBride v. Newlin, 129 Cal. 36, 61 P. 577; Alameda Co. v. Evers, 136 Cal. 132, 68 P. 475; Santa Cruz Co. v. McPherson, 133 Cal. 282, 65 P. 574.) Being within the scope and general powers of the board of commissioners, they having let the contract for the construction of a needed road, which has been received by the county as shown by the petition and stipulation of facts, the county thus receiving a benefit, and the provision of the constitution not having been violated, we say that the matters are res adjudicata, and not subject to collateral attack as made by respondents in this case. (County of Sacramento v. Southern Pacific Co., 127 Cal. 217, 59 P. 568, 825.)

John Sinclair, Prosecuting Attorney of Lemhi County, for Respondents.

The building of the said wagon road was an extra-municipal power, and an extraordinary expenditure of the county, and could only be authorized and incurred under section 1762 of the Revised Statutes. "Commissioners of highways, in laying out highways, act under special statutory authority, and it must appear on the face of the proceedings, or by proof aliunde, that they acquired jurisdiction in the particular case." (Miller v. Brown, 56 N.Y. 383.)

A creditor by accepting the warrant drawn on the particular fund impliedly agrees to rely solely on such fund for payment of the warrant. (Argenti v. San Francisco, 16 Cal. 255; Rose v. Estudillo, 39 Cal. 270; 21 Am. & Eng. Ency. of Law, 2d ed., 22, and authorities.) It was held in Rice v. Milwaukee, 100 Wis. 516. 76 N.W. 341; "That as the future income from licenses is entirely uncertain in amount, and not dependent on any act of the city, moneys to be derived during the year cannot be considered on the question whether a city has exceeded its debt limit." The orders of the board could be attacked at any time, either directly or collaterally. (Fremont County v. Brandon, 6 Idaho 486, 56 P. 264; Dunbar v. Canyon County, 5 Idaho 407, 49 P. 409.)

Provisions similar to section 3 of article 8 of the constitution of the state of Idaho have been incorporated in the constitution of many states for the establishment of a financial system on a basis that should closely approximate the basis of cash, and the authorities bearing on the subject are very numerous. It will be sufficient to refer to the authorities of our own state. (Bannock Co. v. Bunting, 4 Idaho 156, 37 P. 277; Theiss v. Hunter, 4 Idaho 788, 45 P. 2; Ada Co. v. Bullen Bridge Co., 5 Idaho 79, 88, 47 P. 818, 36 L. R. A. 367; Dunbar v. Canyon Co., 5 Idaho 407, 49 P. 409; Boise City v. Union Bank etc. Co., 7 Idaho 342, 63 P. 107.) Partial payments on a contract of a municipal corporation do not amount to a ratification. (Milford v. Milford Water Co., 124 Pa. 610, 17 A. 185, 3 L. R. A. 122.)

It is well settled that a municipal corporation cannot validate by ratification a contract beyond its corporate powers to make, or a contract void from the beginning. (Berka v. Woodward, 125 Cal. 119, 73 Am. St. Rep. 31, 57 P. 777, 45 L. R. A. 420; McCracken v. San Francisco, 16 Cal. 591; Grogan v. San Francisco, 18 Cal. 590; King v. Frankfort, 2 Kan. App. 530, 43 P. 983; Prescott v. Vershire, 63 Vt. 517, 22 A. 655.) The Penwell warrants are non-negotiable instruments. (21 Am. & Eng. Ency. of Law, 2d ed., p. 26, and authorities cited; Wells v. Monroe Co., 103 U.S. 74, 26 L.Ed. 430; People v. Supervisors of El Dorado Co., 11 Cal. 170; Bank of Santa Cruz County v. Bartlett, 78 Cal. 301, 20 P. 682; People v. Gray, 23 Cal. 125; Dana v. San Francisco, 19 Cal. 486; 1 Dillon on Municipal Corporations, sec. 487.) If the road contract is void, the warrants are void. (Perry v. Ames, 26 Cal. 372.) A purchaser of municipal warrants is bound to take notice of the constitutional limitation upon municipal indebtedness. (Buchanan v. Litchfield, 102 U.S. 178, 26 L.Ed. 138; 20 Am. & Eng. Ency. of Law, 2d ed., 1142, and authorities cited.) The road cannot be returned, for the reason that other public money has been spent upon it, and it belongs to the public. (Litchfield v. Ballon, 114 U.S. 190, 29 L. ed., 132, 5 S.Ct. 820.) The warrants do not comply with section 2006 of the Revised Statutes of Idaho. (Bingham Co. v. First Nat. Bank, 122 F. 16, 58 C. C. A. 332; Raymond v. People, 2 Colo. App. 329, 30 P. 504.)

AILSHIE, J. Sullivan, J., concurs. Stockslager, C. J., dissents.

OPINION

STATEMENT OF FACTS.

This is an appeal from an order or judgment denying an application for a writ of mandate to compel Lemhi county and the commissioners and treasurer thereof to pay five certain county warrants, with interest thereon, and, if in the opinion of the court it was necessary that the commissioners be commanded to levy a special tax for the purpose of paying such warrants and interest, that the writ require them to do so. To the complaint or petition the defendants, who are respondents here, answered, pleading ultra vires the statute of limitation and certain matters in bar and avoidance. The issues thus made were determined on stipulated facts, and oral and documentary evidence. Judgment was entered in favor of respondents. The record contains the pleadings, the stipulated facts and all of the evidence offered at the trial. The entire case as made and heard by the trial court is before us. It appears from the facts stipulated that on the tenth day of January, 1893, a petition signed by seventy-nine persons alleged to be resident citizens and taxpayers of Lemhi county, praying for the construction of a wagon road from Silver Star creek or Neiman's ranch to Fourth of July creek, was presented to the board of commissioners for their action thereon, which petition had been filed on the thirtieth day of December, 1892; that the petition was acted upon and approved by the board of commissioners on the tenth day of January, 1893, and that the clerk of the board was thereupon ordered to advertise for bids to construct the road--bids to be opened and considered by the board on the first day of February, 1893. So far as the record shows, the bids were not opened, if any were received under such advertisement, and nothing further was done until on the ninth day of April, 1894, at which time they made another order directing the clerk to readvertise for sealed proposals for the construction of the...