Oneida County v. Evans

• Decision Date: 20 January 1914
• Citation: 25 Idaho 456,138 P. 337
• Parties: ONEIDA COUNTY, Plaintiff, v. D. L. EVANS et al., Defendants
• Court: Idaho Supreme Court

138 P. 337

25 Idaho 456

ONEIDA COUNTY, Plaintiff, v. D. L. EVANS et al., Defendants

Supreme Court of Idaho

January 20, 1914

STATUTORY CONSTRUCTION-APPORTIONMENT OF BONDED INDEBTEDNESS.

1. Under chap. 6 of the 1913 Session Laws, creating the county of Power, it was the evident intention of the legislature to require Power county to pay an amount of the total bonded indebtedness of Oneida county as the same existed at the time of the introduction and passage of the act creating Power county, equal to the percentage which the assessed valuation of the property included within Power county represents of the total assessed valuation of all the property of Oneida county for the year 1912; and it was not the intention of the legislature to give Power county any benefit from the concession or bonus made to Oneida county by the provisions of chap. 5 of the 1913 Session Laws, creating the county of Franklin, and requiring the county of Franklin to assume the flat sum of $30,000 of the bonded indebtedness of Oneida county.

2. Where two separate acts of the legislature are introduced concurrently and passed concurrently through the two branches of the legislature and are approved on the same day and at substantially the same time by the governor, they should be considered and construed under the same rule of construction applicable to the different parts and various sections of one and the same act.

Original application for writ of review. Writ granted and the action of the board of appraisers appointed to adjust the claims and demands between Power and Oneida counties under the provisions of chap. 6 of the 1913 Session Laws reviewed. Action of the board reviewed and order reversed and the cause remanded to the board with directions.

Action of the appraisers, vacated and set aside. No costs awarded.

T. E Ray and E. G. Davis, for Plaintiff.

"If a new corporation is created out of the territory of an old corporation, or if part of its territory or inhabitants is annexed to another corporation, unless some provision is made in the act respecting the property and existing liabilities of the old corporation, the latter will be entitled to all the property, and solely liable for all the liabilities." (1 Dillon, Mun. Corp., art. 359; Mt Desert v. Tremont, 72 Me. 348.)

"The remedy to compel the new township to share in the old burdens is to have an apportionment of them under the statute." (Courtright v. Brooks Township, 54 Mich. 182, 19 N.W. 945; Windham v. Portland, 4 Mass. 384; North Yarmouth v. Skillings, 45 Me. 133, 71 Am. Dec. 530; Hampshire County v. Franklin County, 16 Mass. 76; State v. City of Lake City, 25 Minn. 404; Laramie County Commrs. v. Albany County Commrs., 93 U.S. 307, 23 L.Ed. 552.)

Existence of the right of contribution as between two co-obligors does not release either from the full measure of his primary responsibility. (9 Cyc. 798; Weidemeyer v. Landon, 66 Mo.App. 520; Culmer v. Wilson, 13 Utah 129, 57 Am. St. 713, 44 P. 833; Norris v. Churchill, 20 Ind.App. 668, 51 N.E. 104.)

O. R. Baum and W. G. Bissell, for Defendants.

When two legislative acts are approved upon the same day, in case of a controversy as to which becomes a law first, the court may resort to the office of the Secretary of State and to the published statutes for information as to the order of their approval, and the one that is found to have been approved last is the prevailing law. (Davis v. Whidden, 117 Cal. 618, 49 P. 766.)

Under the circumstances and the evidence presented, there can be no question that the Franklin county bill, chap. 5, was a living act and a published law before the Power county bill, chap. 6, became a law.

C. A. Sunderlin, pro se.

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

This is an original application made in this court for a writ of review to review the action of the appraisers appointed under the provisions of chap. 6 of the 1913 Session Laws creating the county of Power, whereby the appraisers sought to adjust the bonded indebtedness between the counties of Power and the parent county of Oneida. The only question to be determined is the proper construction to place on said sec. 7 of the act. That section provides for the apportionment and adjustment between the two counties of the bonded indebtedness of the old county, and reads as follows:

"The bonded indebtedness of the county of Oneida, state of Idaho, existing and owing at the time this act takes effect, shall be paid by the counties of Oneida and Power in the manner and proportion as follows, to wit: that the county of Power shall pay such proportion of said indebtedness as the total assessed value, as shown by the assessment-rolls of 1912, of that part of Oneida county hereby taken and declared to be a part of Power, bears to the total assessed value of Oneida county as it now exists; and upon the creation of said Power county and the apportionment of the indebtedness aforesaid, upon the basis aforesaid, the said Oneida county shall own and retain the courthouse, furniture, fixtures and appurtenances and the real estate upon which the same is situated."

The same session of the legislature enacted chap. 5 creating the county of Franklin, and the two acts, being chapters 5 and 6 of the 1913 Sess. Laws, were approved by the governor on the same day, and both became laws on the same day. Chap. 5, which created the county of Franklin out of the territory which formerly belonged to Oneida county, provided that the new county of Franklin should assume the sum of $ 30,000 of the bonded indebtedness of Oneida county without reference to the proportion the total assessed valuation of the new county might sustain to the assessed valuation of the old county or the remaining county.

It appears that at the time of the passage of these acts the county of Oneida had a bonded indebtedness of $ 59,000. When it came to adjusting the bonded indebtedness between Power and Oneida counties the commissioners disagreed as to the basis of apportionment of the remaining bonded indebtedness of $ 29,000 between these two counties. The Oneida county commissioner contended that Power county should assume a sum of the entire $ 59,000 indebtedness of the old county equal to the percentage of assessable property of the old county that was taken and included within the boundaries of the new county, which was twenty-seven per cent. On the other hand the Power county commissioner contended, and the third commissioner appointed by the governor agreed with him, that ...