Morse v. Granite County

• Decision Date: 11 November 1911
• Citation: 119 P. 286,44 Mont. 78
• Parties: MORSE v. GRANITE COUNTY et al.
• Court: Montana Supreme Court

119 P. 286

44 Mont. 78

MORSE v. GRANITE COUNTY et al.

Supreme Court of Montana

November 11, 1911

Appeal from District Court, Granite County; F. C. Webster, Judge.

Action by George A. Morse against the County of Granite and others judgment for plaintiff, and defendants appeal. Reversed and remanded.

D. M Durfee, W. E. Moore, Albert J. Galen, Atty. Gen., W. S Towner, Asst. Atty. Gen., for appellants.

Clayberg & Horsky, for respondent.

BRANTLY C.J.

At the general election held in November, 1910, there was submitted to the electors of Granite county the question whether the board of commissioners of the county should issue its bonds to secure a loan of $50,000 to provide funds to build, furnish, and equip a county courthouse and to secure ground for site purposes, in addition to that already owned by the county, in case it should be found necessary. On a canvass of the returns it was found by the board of commissioners that, of the total of 1,302 qualified electors in the county, 483 had voted in favor of issuing the bonds, and 378 had voted adversely. The board thereupon declared that the loan had been approved by the requisite majority of the electors, and was proceeding to issue and sell the bonds under the authority thus assumed to have been given. The plaintiff, an elector and taxpayer of the county, thereupon brought this action to enjoin the board and its members from proceeding further in the premises. It is alleged in the amended and supplemental complaints that the proceedings of the board were nugatory and that the bonds were invalid: (1) Because the board failed first to determine that it was necessary to purchase additional ground for site purposes or to ascertain what amount of the proposed loan would be required to effect the purchase; (2) because the reservation, in the bonds offered for sale, of the option to redeem, is a distinct departure from that determined by the board prior to the election and from that upon which the electors voted; and (3) because the resolution of the board, at a special meeting held after the election providing for the issuance of the bonds, was not adopted as required by the statute. It is also alleged that the issue of bonds was not authorized by a majority of the electors of the county as required by the statute. The following is a synopsis of the resolution and orders of the board under which the election was held: At a regular meeting held on September 12, 1910, it was determined by a majority vote of the board, upon consideration of a petition submitted by certain residents and taxpayers of the county, that the "present building used for a courthouse is insecure," and that it was to the "best interest of the people of the said county that a suitable and fireproof building be built." It was thereupon ordered that an election be proclaimed for November 8, 1910, and that the proclamation be spread upon the journal of proceedings of the board as its order determining the necessity for the loan and its amount, the purposes for which the bonds were to be used, and the statement of the proposition submitted to the electors. This order reads as follows:

"Whereas it is considered by a majority of the board of county commissioners of Granite county, Montana, that it is necessary in order to furnish and provide suitable, secure and safe storage room for the county records of the county, and for the convenience of the county officers of this county and for holding the district court of said county, that a new, modern, fireproof, secure and convenient courthouse for said county should be erected; and whereas, it may be necessary to secure additional ground for a site for said courthouse in addition to the ground already owned by the county; and whereas, there are not sufficient funds in the treasury of said county to pay the costs of securing such additional ground for the construction of said courthouse or for the furnishing or equipment of the same; and whereas, it is considered by the board that the sum of fifty thousand dollars will be necessary for such purposes as aforesaid; and whereas, it will be necessary to issue and sell coupon bonds of the said county in the sum of fifty thousand dollars, in order to provide a fund for the building of such courthouse and the purchase of additional ground therefor, and the furnishing and equipment of the same; and that such bonds to be issued and sold in order to obtain the highest market price for the same should be when issued payable in twenty years from the date thereof, and to be redeemable as follows, to wit: Five thousand dollars thereof to be redeemable in ten years thereof; five thousand dollars thereof to be redeemable and payable each and every year after ten years.

"It is therefore ordered by the board, that the general election in the county of Granite, to be held on the 8th day of November, 1910, at the regular established polling places in the various precincts in the county, there shall be submitted to the qualified electors of said county who are duly registered according to law and entitled to vote at such election, the question and proposition as to whether coupon bonds of the said county amounting in the aggregate in the sum of fifty thousand dollars, bearing date the first day of March, 1911, and bearing interest at the rate of 4 1/2 per cent. per annum, payable semiannually from date, which shall be payable in twenty years from the date thereof, and five thousand [dollars] worth thereof shall be redeemable in ten years from the date thereof, and five thousand dollars worth thereof shall be redeemable in ten years, on the first day of March, in each and every year, after ten years.

"Such bonds to be issued and sold for the purpose of providing a fund for said county for the purpose of the construction of a county courthouse at the county seat at Philipsburg, Montana, and for the purchase of additional ground for the site for said courthouse, and the equipment and furnishing the same.

"It is further ordered that [at] said election separate ballots be provided and the same duly numbered and perforated, as the regular ballots are, with the following proposition clearly stated thereon; that is to say, the form of the ballot to be used at said election for the purpose of voting upon such proposition shall be substantially as follows, to wit:

[ ] For authorizing and giving the authority to the county commissioners of Granite county, to issue and sell coupon interest-bearing bonds of said county in the sum of fifty ($50,000.00) thousand dollars, bearing interest at 4 1/2 per cent. redeemable in ten years, payable in twenty years, for the purpose of the construction of a county courthouse for the said county and the purchase of additional ground therefor, and the furnishing and equipment thereof.

[ ] Against authorizing and giving the authority to the county commissioners of Granite county, to issue and sell coupon interest-bearing bonds of said county in the sum of fifty ($50,000.00) thousand dollars, bearing interest at 4 1/2 per cent. per annum, redeemable in ten years, payable in twenty years, for the purpose of the construction of a county courthouse for the said county and the purchase of additional ground therefor, and the furnishing and equipment thereof."

The above order was thereafter duly published as the notice of election. The ballot used at the election was prepared in conformity with the order of the board; the clerk causing to be printed thereon the usual instructions as to how the elector should indicate his choice. On February 23, 1911, a special meeting was held by the board pursuant to notice given on February 17th. The notice stated the purpose of the meeting as follows: "Said meeting is called for the purpose of adopting a form of bond, fixing the denomination of the same, and for the purpose of advertising the sale of courthouse bonds, and to do all necessary things in connection with the advertising and sale of bonds for the erection of a courthouse." The journal of the proceedings, after reciting that authority had been conferred upon the board by the election and also the purpose of the meeting, contains the following: "Resolved, in accordance with the authority so given the board at said election: That the said board issue, and they do hereby issue said coupon bonds to the number of fifty, in denominations of one thousand each, in the amount of $50,000.00, bearing interest at 4 1/2 per cent. per annum, payable semiannually," etc. Upon the passage of this resolution, a form of bond was adopted and an order was made fixing April 4, 1911, at 10 o'clock a. m., as the date of sale and directing publication of notice thereof, to be made by the clerk as provided by the statute. This was done. The date of issuance was not specifically stated in the order, but the dates for the payment of interest were fixed as January and July of each year. The adopted form bore the date July 1, 1911, and the due date was fixed as July 1, 1931, or, at the option of the county, as July 1, 1921, or "at any interest paying period after the 1st day of July, 1921." The district court held the bonds void and ordered the injunction to issue. The defendants have appealed. There is submitted the question whether the bonds are invalid for any one or more of the reasons alleged.

By way of preliminary, it may be remarked that the validity of the proposed bond issue is questioned solely on the ground that the board was guilty of an omission to observe the requirement of the law in substantial particulars. There is no allegation or suggestion of fraud or willful wrongdoing, by which the plaintiff or any other elector was misled so that he lost his vote.

While in a strict sense, a county is not a municipal...