Peavy v. McCombs

• Citation: 140 P. 965,26 Idaho 143
• Parties: O. L. PEAVY, Respondent, v. GEORGE McCOMBS et al., Appellants
• Decision Date: 29 May 1914
• Court: Idaho Supreme Court

140 P. 965

26 Idaho 143

O. L. PEAVY, Respondent, v. GEORGE McCOMBS et al., Appellants

Supreme Court of Idaho

May 29, 1914

ISSUANCE OF COUNTY BONDS TO REDEEM WARRANTS-STATUTES IN PARI MATERIA PASSED AT SAME SESSION - CONSTRUCTION OF - RETROACTIVE STATUTE-PARTICULAR APPLICATION OF TO SECTION 99, CHAP. 58 SESSION LAWS 1913.

1. The rule that statutes in pari materia should be construed together applies with peculiar force to statutes passed at the same session of the legislature; they are to be construed together, and should be so construed, if possible, as to harmonize and give force and effect to the provisions of each.

2. Where two statutes passed at the same session of the legislature are necessarily inconsistent, that one which deals with the common subject matter in a more minute and particular way will prevail over one of a more general character.

3. Where two conflicting acts upon the same subject matter are passed at the same session of the legislature, and their conflict is such that they cannot be harmonized, and one of them contains an emergency clause and the other does not, and the one containing the emergency clause was passed by both Houses of the legislature and approved by the governor later than the other, held, under the circumstances, the act containing the emergency clause repeals the other to the extent of the inconsistency between them.

4. No act of the legislature shall be construed to be retroactive or retrospective unless the intention on the part of the legislature is clearly expressed. The word "retroactive" need not be used in the statute, but the intent of the legislature may be gleaned from any language which appropriately expresses such purpose.

5. Sec 99 of chap. 58 of Sess. Laws 1913 was passed in obedience to the mandate of sec. 15 of art. 7 of the constitution. By said provision the legislature declared its purpose to place the counties of the state upon a cash basis.

6. By sec. 99 of chap. 58 of Sess. Laws 1913, the power of the board of county commissioners to issue bonds for the payment or redemption of outstanding county warrants is abrogated. This applies to warrants which were issued before said law went into effect, as well as to warrants which were issued after it went into effect.

7. Sec 99 of chap. 58 of Sess. Laws 1913 repeals sec. 1960 of the Rev. Codes as amended by chap. 33 of the Laws of 1913, so far as said sec. 1960 empowers the county commissioners to issue county bonds to pay or redeem outstanding warrant indebtedness.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. John M. Flynn, Judge.

Action to enjoin the defendants from issuing, signing and delivering certain county bonds of Bonner county to pay and redeem certain outstanding warrant indebtedness. Affirmed.

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

William J. Costello, for Appellants, filed no brief.

H. H. Taylor, for Respondent.

With the exception of the case of Bannock County v. C. Bunting & Co., 4 Idaho 156, 37 P. 277, the points here raised have not been directly passed upon by this court. There was no occasion for controversy until sec. 15, art. 7 of the constitution was made effective by the laws of 1913.

The enactment of the revenue law of 1913 calls for this construction, and it cannot be construed otherwise, for having been enacted subsequent to the enactment of sec. 1960, Rev. Codes, it plainly prohibits the issuance of bonds to take up outstanding warrants.

MCCARTHY, District Judge. Ailshie, C. J., and Sullivan, J., concur.

OPINION

MCCARTHY, District Judge.

--The following are the material facts of this case as they appear from the allegations of the complaint: The plaintiff is a resident and taxpayer of Bonner county, Idaho, and the defendants, George McCombs, John C. Nagel and Don. C. McColl, are now and were at all times concerned in this action the county commissioners of Bonner county, Idaho. The defendant Andrew Christensen is and was at all times concerned in the action the clerk of said board of county commissioners.

In April, 1912, the board of county commissioners of Bonner county, in accordance with the provisions of the revenue law in force at that time, appropriated by resolution for the current expenses of said county for the fiscal year beginning on the second Monday in April, 1912, the net sum of $ 76,967. To raise the money required by this appropriation the board levied a tax of three mills, which would produce only $ 30,913.38, or less than one-half of the amount required by the appropriation. As a consequence there were outstanding and unpaid in July, 1913, warrants drawn on the current expense fund for the fiscal year 1912-13 in the amount of $ 43,759.04. In addition to these warrants there were other warrants of the county outstanding and unpaid which brought the total amount of warrant indebtedness up to the amount of $ 100,000.

On July 18, 1913, at an adjourned regular session, the board of county commissioners resolved to issue negotiable coupon funding bonds of the county in an amount sufficient to redeem or pay the outstanding warrant indebtedness, and at a later session ordered the clerk of the board to cause to be published according to law a notice of their intention. The notice has been published and the bonds have been awarded and the defendants, unless restrained, will make, execute and deliver the negotiable coupon bonds of the county in an amount in excess of $ 100,000 for the purpose of redeeming or paying the warrant indebtedness.

The defendants demurred generally to the plaintiff's complaint upon the ground that the facts set forth in it and outlined above are not sufficient to constitute a cause of action. This demurrer was overruled by the trial court and the defendants elected to stand upon their demurrer. The trial court then rendered judgment in favor of the plaintiff and against the defendants, permanently enjoining and restraining the latter from proceeding further in the matter of the execution of negotiable coupon funding bonds of Bonner county, for the purpose of redeeming or paying outstanding warrants of the county, or from signing, executing or delivering bonds of the county to pay or redeem outstanding warrants. From this judgment of the trial court the defendants appeal to this court.

An examination of this case involves the consideration and construction of certain provisions of the state constitution and of the statutes. Sec. 15 of art. 7 of the constitution of the state of Idaho reads as follows:

"The legislature shall provide by law, such a system of county finance, as shall cause the business of the several counties to be conducted on a cash basis. It shall also provide that whenever any county shall have any warrants outstanding and unpaid, for the payment of which there are no funds in the county treasury, the county commissioners, in addition to other taxes provided by law, shall levy a special tax, not to exceed ten (10) mills on the dollar, of taxable property, as shown by the last preceding assessment, for the creation of a special fund for the redemption of said warrants; and after the levy of such special tax, all warrants issued before such levy, shall be paid exclusively out of said fund. All moneys in the county treasury at the end of the fiscal year, not needed for current expenses, shall be transferred to said redemption fund."

Sec. 99 of chap. 58 of the Sess. Laws of 1913 provides that upon all taxable property of the county the board of county commissioners must each year levy a tax for the redemption of outstanding county warrants issued prior to the second Monday of April in said year, to be collected and paid into the county treasury and apportioned to the county redemption fund, which levy must be sufficient for the redemption of all such outstanding county warrants before the second Monday of April in the succeeding year, unless the amount of such outstanding warrants exceeds the amount that would be raised by a levy of one hundred cents on each one hundred dollars of such assessed valuation, in which case the board must annually levy a tax of one hundred cents on each one hundred dollars of such assessed valuation for the redemption of such outstanding warrants.

Sec. 101 of said chap. 58 provides that the county auditor must furnish the board with a statement of the amount of outstanding county warrants for the current year and for the prior years.

Sec. 212 provides that "all acts and parts of acts in conflict with this act are hereby repealed."

Chap 33, Sess. Laws 1913, provides as follows: "The board of county commissioners of any county in this state, may issue negotiable coupon bonds of their county for the purpose of paying, redeeming, funding or refunding the outstanding indebtedness of the county, as hereinafter provided, whether the indebtedness exists as warrant indebtedness, or bonded indebtedness. Said bonds shall be issued as near as practicable in denominations of one thousand dollars each, but bonds of the denominations of five hundred and one hundred dollars may be issued when necessary. Said bonds must bear interest at a rate of not to exceed six per cent per annum, the interest to be paid on the first day of January and the first day of July in each year, at the office of the county treasurer, or at such bank in the city of New York as may be designated by the board of county commissioners; such bonds to be redeemed by the county in the following manner: Ten per cent of the total amount issued to be paid in ten years from the date of issue; and ten per cent annually thereafter until all of said bonds are paid. But said bonds or any part thereof may, at the option of the county issuing the same, be...