Morgan v. County Commissioners of Kootenai County

• Decision Date: 06 April 1895
• Parties: MORGAN v. COUNTY COMMISSIONERS OF KOOTENAI COUNTY
• Court: Idaho Supreme Court

39 P. 1118

4 Idaho 418

MORGAN v. COUNTY COMMISSIONERS OF KOOTENAI COUNTY

Supreme Court of Idaho

April 6, 1895

PRACTICE-JURISDICTION IN EQUITY-APPEAL FROM ORDER OF COUNTY COMMISSIONERS.-When order for the issuance and sale of bonds has been made and entered of record by the board of county commissioners of any county, proceedings in equity to restrain the issuance and sale of such bonds in pursuance to such order will not lie the court having no jurisdiction in equity, where there is a plain, speedy and adequate remedy at law, by appeal from the order of the board.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Cause dismissed.

Keat &amp Fogg and Fred L. Burgan, for Appellant.

This suit was brought for the purpose of restraining the defendant, board of county commissioners, from issuing and disposing of certain bonds to the amount or eighty thousand dollars, and to restrain the payment to one George B. McAuley of $ 3,200 as commission for the negotiation and sale of said bonds. Said bonds were proposed to be issued for the purpose of refunding the outstanding indebtedness of the county of Kootenai. The board of county commissioners did not submit the question of the issuing of said bonds to the qualified electors of said county, nor was the sale of said bonds ever authorized by a vote of the qualified electors of said county, in direct violation of the provisions of section 15 of article 7 of the constitution. Section 3, article 8 of the constitution provides that no debt shall be created without such vote.

Albert Hagan and Charles L. Heitman, for Respondents.

The record shows that the order of the board complained of was made on the third day of May, 1892, and no appeal was ever taken therefrom by the plaintiff. The order was an appealable one, and plaintiff had a complete remedy at bar, and could have been heard upon the law side of the court by an appeal to the district court. (Rev. Stats., sec. 1776.) The statute having provided a plain, speedy and adequate remedy at law the plaintiff has no standing in a court of equity. The court had no jurisdiction of the case. (Rogers v. Hayes, 3 Idaho 597, 32 P. 259; Rupert v. Board, 2 Idaho 69, 2 P. 718; Van Camp v. Board, 2 Idaho 29, 2 P. 721.) Section 3, article 8 of the constitution does not refer to any existing indebtedness, but refers to a limitation upon the power to create or incur an indebtedness in excess of the revenues raised, and then only upon a vote of the people. (People v. May, 9 Colo. 413, 12 P. 838; People v Austin, 9 Colo. 138, 10 P. 641.)

MORGAN, C. J. Huston and Sullivan, JJ., concur.

OPINION

MORGAN, C. J.

This suit was brought for the purpose of restraining the defendant, the board of county commissioners, from issuing and disposing of certain bonds to the amount of $ 80,000, and to restrain the payment to one George B. McAuley of $ 3,200 as commission for negotiation and sale of said bonds, which were proposed to be issued by said county for the purpose of refunding the outstanding indebtedness of the county of Kootenai, pursuant to and in accordance with the following order issued by the board of county commissioners, and entered of record in their proceedings, upon the second and third days of May, 1892, as follows, to wit: "In the matter of the sale of Kootenai county bonds: At this time the board proceeded to open bids on file from Farson, Leach & Co., and Lamprecht Brothers, George B. McAuley, and E. L. Mims, for the purchase of Kootenai county bonds heretofore advertised to be sold for the purpose of funding the outstanding indebtedness of said county, and the board, having duly considered said bids, took the matter of the acceptance of any of said bids under advisement. Tuesday, May 3d, 1892. Board met pursuant to adjournment, at 10 o'clock A. M. In the matter of the sale of Kootenai county bonds: The board having taken the bids for the purchase of Kootenai county funding bonds under advisement, and having duly considered the same, and being fully advised, it is now ordered that the bid of George B. McAuley be, and is hereby, accepted according to...