Robertson v. Blaine County

• Decision Date: 03 October 1898
• Docket Number: 441.
• Citation: 90 F. 63
• Parties: ROBERTSON v. BLAINE COUNTY.
• Court: U.S. Court of Appeals — Ninth Circuit

90 F. 63

ROBERTSON v. BLAINE COUNTY.

No. 441.

United States Court of Appeals, Ninth Circuit.

October 3, 1898

This action was commenced September 30, 1897, by the plaintiff in error, to recover a judgment against the defendant in error for the sum of $10,590, with interest, the amount alleged to be due on certain bonds and coupons issued by Alturas county Idaho, under and in pursuance of an act of the legislature of the state of Idaho entitled 'An act providing for the erection of a court house and jail at Hailey, the county seat of Alturas county,' approved February 8, 1883. The bonds were issued May 1, 1883, and were made payable November 1 1891. The legislature of Idaho, in 1895, passed an act entitled 'An act to abolish the counties of Alturas and Logan, and to create and organize the county of Blaine,' approved March 5, 1895. This act provides: Section 1 'The counties of Alturas and Logan are hereby abolished and the county of Blaine is hereby created, embracing all of the territory heretofore included within the boundary lines of said Alturas and Logan counties. ' Section 7: 'All valid and legal indebtedness of Alturas and Logan counties shall be assumed and paid by the county of Blaine. ' Section 8: '* * * All rights of action now existing in favor of, or against, said Alturas or Logan county, may be maintained in favor of or against Blaine county. ' Sess. Laws. Idaho 1895, pp. 31, 33. It appears from the averments of the amended complaint: That the act authorizing the issuance of the bonds provided that 'the board of county commissioners of said county shall, at the time of levy of county taxes, include therein a levy of sufficient tax to meet the interest and principal of said bonds as the same shall become due, and the tax so levied shall be known as the court-house bond tax, and shall be collected as other taxes are collected, and shall constitute a separate fund, and shall be used for no other purpose. And for the payment of said bonds, principal and interest, all the taxable property of said county is hereby pledged. ' That said bonds and coupons were, as they respectively matured, presented for payment to the treasurer of Alturas county, while it existed, and to the treasurer of Blaine county since the creation thereof, and payment thereon demanded by the holder thereof; and that the payment thereof, or any part thereof, was refused, on the ground that there was no money in the treasury applicable to their payment. That the commissioners of Alturas county neglected and refused to levy any tax to meet the interest and principal of said bonds as they became due. That on February 7, 1889, the legislature of Idaho divided Alturas county, and from its territory formed the counties of Elmore and Logan, and gave other portions to Bingham county, provision being made for apportioning the indebtedness, except the bonded court-house indebtedness, which was to remain the indebtedness of Alturas county. That on the 18th of March, 1895, the legislature of Idaho passed an act creating the county of Lincoln out of the territory of Blaine county, apportioning the indebtedness between said counties, the bonded court-house indebtedness of Alturas being included as part of the indebtedness of Blaine county. Since the creation of Lincoln county, such proceedings have been had that Blaine county has a judgment against Lincoln county for its proportion of said indebtedness, including the court-house bonded indebtedness of Alturas county. Blaine Co. v. Lincoln Co., 52 P. 165. To the original complaint the defendant interposed a demurrer upon two grounds: (1) That the said complaint does not state facts sufficient to constitute a cause of action; (2) that the alleged cause of action in the complaint is barred by the provisions of section 4052 of the Revised Statutes of the State of Idaho. This section, in prescribing the time within which suit may be brought, reads as follows: 'Sec. 4052. Within five years: An action upon any contract, obligation, or liability founded upon an instrument in writing. ' The court sustained this demurrer. Robertson v. Blaine Co., 85 F. 735. The complaint was thereafter amended. A similar demurrer was interposed thereto, and sustained, and judgment thereafter rendered in favor of the defendant for its costs.

Selden B. Kingsbury, for plaintiff.

Lyttleton Price, for defendant.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after stating the facts).

Did the court err in sustaining defendant's demurrer? Is this action barred by the statute of limitations? The entire argument on behalf of the defendant clusters around the proposition that this is an action upon the original bonds, and not upon a debt growing out of them created at a subsequent date; that the act creating the county of Blaine simply provided that Blaine county should assume the payment of the bonded indebtedness of Alturas county; that it did not in terms create any new debt or obligation, but simply recognized the validity of the obligation created by Alturas; that there was no change as to the time when said bonds should become due; that Blaine county agreed to pay the bonds, stepped into the shoes of Alturas county, and was to pay just as Alturas would have paid then had it lived; that it assumed all the burdens and became invested with all the rights and privileges that Alturas would have possessed if Blaine county had not been created; that, if Alturas had continued to exist in the same condition it was when the bonds were issued, it could have successfully pleaded the statute of limitations. The proposition contended for is tersely stated in its brief as follows:

'If plaintiff has an action at all, it is not upon a new debt, nor a legislative debt, nor a new obligation, nor upon a specialty, nor a novation; it is the old debt of Alturas county. That county being dissolved, a new payor is created to discharge the obligation just as Alturas had it and left it.'

If this contention is sustained, it necessarily follows that as the bonds became due November 1, 1891, and more than five years elapsed from that date before the action was commenced, the statute of limitations would apply. On the other hand, the plaintiff contends that the statute does not apply for various reasons, which are specifically stated by counsel as follows:

'(1) Because the duty of providing for and paying this debt was so imposed and assumed as to make the debtor county the donee of a power, 'and a trustee of a direct, express, and continuing trust, unaffected by the statute of limitations.

'(2) Because the act authorizing the requiring the creation of this debt provided for the levy of a special tax, and created a special fund, which tax was never levied, and which fund never contained any moneys; nor was any money ever in the treasury of the debtor county applicable to the payment of this debt.

'(3) Because of new promises; of renewal of the indebtedness; of many subsequent acknowledgments of the debt; and because of the creation of a new legislative obligation and debt upon the defendant county, based upon the original debt, and into which the original debt is merged.

'(4) Because of the new promises and acknowledgments embraced in and implied in legislative acts and legal proceedings thereunder; of the making provision for the payment of said indebtedness; of the apportioning of the same, and creating legislative debts upon other counties than the debtor county, to aid the debtor county in the payment of the same.

'(5) Because of statutory provisions requiring a new county to pay its proportionate share of any bonded indebtedness outstanding against the parent county, and requiring such payments to be used only in aid of paying such bonded indebtedness; and because of various acts, suits, and proceedings done, instituted, and undertaken by the debtor county to secure aid from other counties in obtaining funds on account of and for payment of this indebtedness.

'(6) Because of the various acts of the legislature regarding said indebtedness, regarding the county which created the same, regarding other counties created out of said county, regarding the funding of the indebtedness, regarding the apportionment of the indebtedness; and because of acknowledgments and promises made and necessarily implied in various suits, actions, and legal proceedings had and taken concerning said indebtedness by the defendant county, and the result of the same.'

What is the character of this action? How should it be classified? Is it an action upon a contract, obligation, or liability founded upon an instrument in writing? No action could be maintained against Blaine county upon the bonds and coupons issued by Alturas county except by force of the act and the legislature approved March 5, 1895. It is by virtue of the provisions of this act that plaintiff seeks to maintain this action against defendants. The liability or obligation of Blaine county to pay the bonds and coupons issued by Alturas county did not, and could not, arise except by legislative action. Under the provision of the act organizing and creating the county of Blaine, it assumed and agreed to pay 'all valid and legal indebtedness of Alturas' county and in said act it was provided 'that all rights of action now existing in favor of or against said Alturas * * * county may be maintained in favor of or against Blaine county. ' The bonds and coupons at that time were a part of the 'valid and legal indebtedness' of Alturas county, which Blaine agreed to pay. Its liability was then fixed and determined. The bonds and coupons issued by Alturas county constitute an important ingredient in the action, but they are not all of the case. As against ...