People ex rel. Seely v. May

• Decision Date: 24 January 1887
• Citation: 9 Colo. 404,12 P. 838
• Parties: PEOPLE ex rel. SEELY v. MAY, Treasurer, etc.
• Court: Colorado Supreme Court

12 P. 838

9 Colo. 404

PEOPLE ex rel. SEELY v. MAY, Treasurer, etc.

Supreme Court of Colorado

January 24, 1887

Mandamus to treasurer of Lake county.

This case is now considered by the court on the pleadings for the third time. It was first presented upon a demurrer to the original petition, ( People v. May, 8 Colo. 485; S.C. 9 P. 34;) it was again submitted upon a demurrer to the answer, ( People v. May, 10 P. 641;) while the present discussion takes place upon a demurrer to the replication. At each of these stages op pleading different questions have been submitted, examined, and adjudicated.

Aside from the omission of section 6, art. 11, of the state constitution in full, the present opinion sufficiently recites the facts. This section gives rise to the questions now determined. It reads as follows: 'No county shall contract any debt by loan in any form, except for the purpose of erecting necessary public buildings, making or repairing public roads and bridges; and such indebtedness, contracted in any one year, shall not exceed the rates upon the taxable property in such county, following, to-wit: Counties in which the assessed valuation of taxable property shall exceed five millions of dollars, one dollar and fifty cents on each thousand dollars thereof; counties in which such valuation shall be less than five millions of dollars, three dollars on each thousand dollars thereof. And the aggregate amount of indebtedness of any county for all purposes, exclusive of debts contracted before the adoption of this constitution shall not at any time exceed twice the amount above herein limited, unless when in manner provided by law the question of incurring such debt shall, at a general election, be submitted to such of the qualified electors of such county as in the year last preceding such election shall have paid a tax upon property assessed to them in such county, and a majority of those voting thereon shall vote in favor of incurring the debt; but the bonds, if any be issued therefor shall not run less than ten years, and the aggregate amount of debts so contracted shall not at any time exceed twice the rate upon the valuation last herein mentioned: provided, that this section shall not apply to counties having a valuation of less than one million of dollars.'

Teller & Orahood and Markham & Dillon, for plaintiffs.

d. e. p/arks, Co. Atty. Lake Co., and H. B. Johnson, for defendant.

HELM J.

Under the replication, and the demurrer thereto, counsel argue and submit for adjudication the following questions, viz.: First, does the limitation imposed upon county indebtedness by section 6, art. 11, of the state constitution, include debts contracted by operation of law? Second, can counties which have reached the constitutional limit of indebtedness, and have issued warrants in excess thereof, meet their current expenses as they arise by assignments of the annual revenue (thus appropriating the whole of such revenue, if necessary) accruing from taxes levied, but uncollected?

1. The section of the constitution above mentioned was, at a former stage of the pleading in the case at bar, carefully considered by this court. People v. May, 10 P. 641. It was then held that the expression in said section, 'and the aggregate amount of indebtedness of any county for all purposes * * * shall not at any time exceed twice the amount above herein limited, unless,' etc., operates as a 'plain limitation of county indebtedness, irrespective of its form.' Counsel for petitioner were at that time contending that this limitation applies only to debts contracted 'by loan.' Treating our opinion as decisive against that particular construction of the language in question, they now ask us to say that the inhibition reaches such debts only as are the result of voluntary contracts made by the county authorities. They seek to have us distinguish between the purpose for which a debt is created and the manner of its creation. In other words, if we rightly understand their position, they assert that, as between two items of county expenditure which are equally necessary, the constitutional limitation of indebtedness having been reached, a debt created for one by the voluntary contract of the commissioners would, conceding the correctness of our former opinion, be forbidden and void, while a debt in connection with the other, directly resulting from action under legislative enactment, might be perfectly valid.

Should the position of counsel be sustained? The phrase 'for all purposes' seems to include debts without regard to the method of their contraction. The language itself does not discriminate between purposes governing legislative action, and purposes controlling the conduct of county authorities. It apparently covers, every kind of indebtedness, voluntarily authorized or voluntarily contracted. Whether the same be incurred in one way or another, whether created for what may be termed necessary running expenses, or in the consummation of other legitimate municipal objects, the inhibition appears to be equally applicable. The constitutional limitation having been reached, a debt for the statutory fee of an officer, or a statutory liability in connection with any other municipal employment or expense, is apparently as much inhibited as is indebtedness for labor performed or materials furnished under contract with the commissioners. Such we say is, in our view, the plain import of the language referred to. And, unless the same section or other sections of the constitution contain provisions inconsistent with this view, or unless there exist some objection so cogent as to demonstrate that the framers of the constitution could not have foreseen and intended such a construction, its adoption becomes a legal necessity.

We shall consider briefly the principal reasons advanced by counsel for petitioner to support their views in the premises. We preface such consideration, however, with the suggestion that all debts binding upon counties are authorized by statute. The county authorities exercise no power that is not conferred by the constitution or by the legislature. They make no contract, and incur no municipal liability, that does not find its warrant, directly or indirectly, in express legislative or constitutional enactment. Any action on their part which is not thus sanctioned would be ultra vires, and of no binding force as against the corporation. Hence it may truly be said that debts arising from express contract with the county commissioners are indirectly incurred by operation of law.

In the first place, we are told that such a construction of the provision in question as the one suggested, would produce conflicts between different parts of the constitution itself; that since this construction of section 6 disables certain counties from incurring debts for the payment of officers' fees, and other necessary running expenses, the business of such counties will not be efficiently transacted, and they will, to a great extent, be shorn of their usefulness. Thus, say counsel, the beneficent constitutional provisions relating to county organization and government will, as to certain counties, be largely, if not completely, neutralized. The argument ab inconvenienti is also appealed to; and the serious public disasters that would result from the stoppage of the wheels of county government, because of the inability to incur debts, are strongly depicted.

If there were room in the language before us for judicial construction, and if counsel's assumptions were true these arguments would receive great consideration. But the vitality of the constitutional provisions to which counsel refer does not depend upon the ability of counties to create indebtedness; nor do the apprehended consequences necessarily follow from the inhibition against further liability. The constitutional provision before us simply prohibits 'indebtedness' beyond a certain sum. It does not limit the amount of taxes the county authorities shall levy to defray county charges for a given year. The members of the constitutional convention were not dealing with the subject of county expenses or expenditures, provided the county 'pays as it goes.' Their purpose was to protect the municipal credit, and to relieve the people of the oppressive burdens that always result from a large corporate indebtedness. If the running expenses are necessarily heavy, or if the people are inclined to extravagance, and indulge in what might be termed municipal luxuries, still the credit remains good, and the evils against which the convention legislated do not exist, provided these expenses, whether necessary or unnecessary, economical or extravagant, are paid when incurred. This provision,...