People ex rel. Seeley v. Hull

• Decision Date: 24 December 1885
• Citation: 9 P. 34,8 Colo. 485
• Parties: PEOPLE ex rel. SEELEY v. HULL, Jr., Treasurer, etc. (Original suit for injunction.) PEOPLE ex rel. SEELEY v. MAY, Treasurer, etc. (Original proceeding for mandamus.)
• Court: Colorado Supreme Court

9 P. 34

8 Colo. 485

PEOPLE ex rel. SEELEY v. HULL, Jr., Treasurer, etc. (Original suit for injunction.)

PEOPLE ex rel. SEELEY v. MAY, Treasurer, etc. (Original proceeding for mandamus.)

Supreme Court of Colorado

December 24, 1885

Teller & Orahood and Markham &amp Dillon, for the State.

Dan'l E. Parks and H. B. Johnson, for Hall and May, Treasurers, etc.

HELM J.

These causes are both against county treasurers. The former is instituted for the purpose of enjoining the doing of certain acts threatened by the treasurer of Summit county; the latter is a proceeding to compel the performance of a certain act by the treasurer of Lake county. Both arise under the same statute, and will be disposed of in a single opinion. This statute is an act of the Fifth general assembly on the subject of revenue. Sess. Laws 1885, p. 315. We are to consider the cases as upon a general demurrer to the complaint and petition, respectively; in the latter the demurrer also challenging the sufficiency of the alternative writ. The Code (section 342) seems to provide for respondents' raising questions of law in mandamus proceedings by answer instead of demurrer. But as no objection is here interposed, we shall not find fault with the method pursued. It is in harmony with the practice prevailing in other civil actions.

Two questions are fairly presented for adjudication First, is that part of the act including the provisos of section 1 and all of section 2 void because inimical to the constitution; and, second, can the remainder thereof be construed as prohibiting the receipt, for taxes, of county warrants issued prior to July 6, 1885, when the act became a law?

1. The specific objection to which our attention is directed under the first question above stated, is that the portion of the act designated therein relates to a subject in no way mentioned or covered by the title, and therefore that it is in conflict with section 21, art. 5, of the constitution. Other exceptions are taken to the provisions in question; but, inasmuch as we deem this one decisive, they will not be discussed. The title of the act is as follows: 'An act to provide for the payment of county and road taxes in cash, and to repeal all laws in conflict therewith.' The first three lines of section 1 declares that 'all property taxes levied for county purposes and for road purposes, together with all penalties and costs thereon, shall be payable in cash only.' The third and last section specifically repeals two existing provisions which authorized the payment of such taxes in county warrants, and then concludes with the usual general clause repealing inconsistent acts and parts of acts.

The foregoing are the only portions of the statute which can possibly be considered as covered by the title. The remainder thereof treats of subjects wholly disconnected from that of the payment of county and road taxes in cash. No learning or ingenuity can satisfactorily demonstrate that clauses providing for the disbursement of funds in the treasury are embraced within a title which is expressly confined to the collection of such funds. It requires no argument to show that provisions relating to the purchase of outstanding warrants at their market value, setting aside for a special purpose 25 per cent. of funds in the treasury, advertising for sealed propositions of sale from the holders of warrants, canvassing such bids by the county commissioner, and the like, are not germane to the subject mentioned. This conclusion, however, does not necessarily render void the portion of section 1 above quoted. It and the repealing clauses are clearly, as already observed, within the purpose expressed in the title. They do not in any way depend upon the other parts of the act, and are complete in and of themselves. In view of the latter part of the constitutional provision referred to, as well as under a familiar rule of statutory construction, it is our duty to hold that while all the provisos of section 1 and all of section 2 are void, the remainder of the act is perfectly valid.

2. The second question presented is not so easily answered. Prior to the adoption of the act under consideration it was provided by statute that county warrants should be receivable by the treasurer for ordinary county taxes, and it is contended that the provision requiring all property taxes levied for county purposes to be paid in cash only, cannot be construed as inhibiting the payment of such taxes with orders or warrants issued prior to the taking effect thereof.

Counsel for petitioner argued that the statute making such warrants a legal tender for county taxes became a part of the contract represented by them, and that a construction of the act of 1885 which would take from them this quality or attribute would, in effect, impair the obligations of the contract, and therefore be within a familiar inhibition of both the federal and state constitutions. To meet this objection counsel for respondent present and ably argue three propositions. They contend-- First, that the framers of the federal constitution, in prohibiting the passage by a state of laws impairing the obligation of contracts, referred only to agreements existing between individuals; that it is error to extend such constitutional provisions to contracts between municipal corporations and private parties; second, they insist that there is in this case no contract to be impaired; and, third, they assert that the statutes authorizing county orders or warrants to be used in payment of taxes were themselves in conflict with plain declarations of our state constitution, and therefore void.

First. The legality as well as the propriety of applying the constitutional provision in question to contracts between a municipal corporation and a private party are not undisputed. There are distinguished jurists and eminent essayists who think, with counsel for respondent, that only contracts between private individuals were intended by the framers of that instrument to be reached by this inhibition. But the supreme court of the United States, in a long line of decisions, have adhered, though not unanimously, to the contrary doctrine, which was first announced in the Dartmouth College Case, 4 Wheat. 518. These decisions may, perhaps, be founded upon a mistaken view concerning the intent of the constitution makers, and the principle announced in them may possibly entail pernicious consequences. But, until that august tribunal shall have retracted its footsteps, the conclusion in question will be accepted by us. We shall assume, then, as correct the proposition that legislation impairing the obligation of a contract between the people, acting in a municipal capacity on the one hand, and a private individual or corporation on the other, may be within the inhibition of the federal constitution.

Second. It may seem surprising, but is nevertheless true, that the most serious and difficult question presented in nearly all of the cases upon the subject before us was as to whether or not a valid contract existed, and counsel have resolved that this case shall be no exception to the rule. We therefore proceed to consider the inquiry, is there here a contract to be impaired? Under the law no authority whatever exists for issuing county orders or warrants as loans or gifts, or in recognition of anything save a valid and binding debt or obligation. The consideration of this debt must be services rendered or materials furnished or other benefit received by the county. The fact that the debt is due, and the obligation to pay it exists, when the warrant issues, is a matter of no importance. The warrant is itself not the debt nor contract, but the evidence thereof. The obligation would exist without the warrant. But, for convenience in the management of county affairs, it is deemed better to have such debt or obligation evidenced by the writing termed an order or warrant. As already suggested, however, prior to 1885 it was expressly declared by law that such order or warrant should be received in payment of county taxes. Of this right it must be presumed persons dealing with the county had knowledge. It was, therefore, in effect, as though the county had said to A.: 'You do this work or furnish these materials, and I will give you one hundred dollars. When the debt accrues, I will issue and deliver to you a written order upon myself evidencing the same. This order, if not sooner paid in money, you may, at the proper time, use to liquidate a corresponding amount of the debt you owe me in taxes.' A accepts the proposition, and performs the work or furnishes the materials. The fact that he can pay his taxes with the warrant received is the principal inducement leading him to perform the work or to part with his property. It constitutes by far the most important part of the consideration for his acceptance of the proposition. Have we not here every element of a binding contract,--parties capable of contracting, a legal subject-matter, a plain proposition made and accepted, and ample consideration moving from both sides? Upon what principle would we be justified in declaring that the right conferred by law to use the warrant, or the debt which it represents, in discharge of a claim for taxes, is not of the very essence of the contract? Without this element A. would never have accepted the proposition; he would not have performed the labor or parted with his property.

It is contended, however, that a general law is never a contract. This declaration may be true. It is, nevertheless also true that sometimes when conditions have been accepted, and acts have been performed, or valuables parted with, thereunder, such a law constitutes a part of the contract, or is inseparably connected with the...