Shoshone County v. Profit

• Decision Date: 03 February 1906
• Citation: 84 P. 712,11 Idaho 763
• Parties: SHOSHONE COUNTY v. PROFITT
• Court: Idaho Supreme Court

84 P. 712

11 Idaho 763

SHOSHONE COUNTY v. PROFITT

Supreme Court of Idaho

February 3, 1906

CONSTITUTIONAL REQUIREMENTS-ANNEXATION OF A PART OF ONE COUNTY TO ANOTHER-POWER OF LEGISLATURE-COUNTY INDEBTEDNESS-RATABLE PROPORTION OF INDEBTEDNESS.

1. Under the requirements of that portion of section 3 of article 18 of the state constitution which provides that "when any part of a county is stricken off and attached to another county, the part stricken off shall be held to pay its ratable proportion of all then existing liabilities of the county from which it is taken," the detached territory continues liable for its ratable proportion of the indebtedness existing against the mother county at the time of the segregation.

2. Section 3 of article 18 of the constitution is as much a prohibition against the legislature imposing the ratable proportion of indebtedness on the county to which the detached territory is annexed as it is a prohibition against leaving the entire indebtedness to be paid by the old county from which the portion is stricken off.

3. The constitution having provided that one particular portion of territory shall pay a certain portion of indebtedness has thereby excluded and exempted all other territory from paying such indebtedness.

4. The provisions of an act approved March 10, 1903, submitting the question of the annexation of a part of Shoshone county to Nez Perce county to a vote of the electors within the territory to be annexed, and to apportion the debt of Shoshone county between the county of Shoshone and the segregated portion thereof, and authorizing and directing the board of commissioners of Nez Perce county to cause warrants to be drawn by the auditor of that county in favor of Shoshone county for the amount ascertained to be due by the accountants provided for in the act. Held, valid and constitutional.

5. The act of March 10, 1903, providing for the annexation of a portion of Shoshone county to Nez Perce county, should be read and construed in the light of and in connection with the existing laws in relation to the same subject matter, and is not in conflict with sections 3605 and 3606 of the Revised Statutes, as amended by the act of March 8, 1895.

6. By the provisions of section 3606 as amended by act of March 8 1895, it is made the duty of the board of commissioners of a county from which a portion of its territory is stricken off to annually certify to the assessor and tax collector of the county to which such territory has been annexed the rate of tax levied by the board of commissioners for the purpose of paying the interest and providing a sinking fund in payment of the outstanding indebtedness of the county at the time of the segregation of territory, and it is thereupon made the duty of the assessor of the county to which such territory is annexed to collect, within the segregated territory, the tax so levied and certified in the same manner as other taxes are by him collected.

7. The provisions of section 4 of the act of March 10, 1903 requiring the commissioners of Nez Perce county to issue their warrants in favor of Shoshone county for the amount found due from the segregated territory to the parent county is only an evidence of the results of the investigation adjustment and settlement as to the pro rata proportion of indebtedness to be borne by the segregated territory, and such warrants will only be payable as money shall be received by the treasurer of Nez Perce county from taxes collected from the segregated territory in accordance with the provisions of section 3606 of the Revised Statutes, as amended by act of March 8, 1895.

(Syllabus by the court.)

Sullivan J., dissenting.

ORIGINAL application for writ of mandate to certain officers of Nez Perce county requiring them to cause to be issued and delivered to Shoshone county the warrants of Nez Perce county in compliance with the provisions of the act approved March 10, 1903, providing for the striking off of a portion of the territory of Shoshone county and annexing the same to Nez Perce county. Writ granted.

Writ issued. No costs awarded.

James E. Gyde, Prosecuting Attorney, of Shoshone County, for Plaintiff.

Subject to constitutional limitation, the power of the legislature over counties is unlimited. The leading case upon this question which is cited fully in one-half of the score of cases examined by the writer of this brief is Laramie Co. v. Albany Co., 92 U.S. 307, 23 L.Ed. 552. As to the power of the legislature to divide counties, change the boundaries thereof by annexing a portion of one county to another, or to abolish counties at will and distribute the property and indebtedness of the same in such manner as it deems wise, the court is respectfully referred to very exhaustive notes to the following case: Mount Hope Cemetery v. City of Boston, 158 Mass. 509, 35 Am. St. Rep. 515, and note, 33 N.E. 695. Especial attention is called to the note in 35 Am. St. Rep. on page 539, under the head, "Control Over Property by Dividing or Destroying Municipalities"; also very exhaustive note to case of State v. Clevenger, 20 Am. St. Rep. 676. These two cases are complete briefs in themselves upon the power of the legislature in these matters. The legislature has seen fit to say how this portion of the indebtedness of Shoshone county which has been certified by the accountants shall be paid, and it is not for the courts to say that the legislature has not done complete justice in the matter. It is a legislative question, not a judicial one. (Tulare Co. v. Kings Co., 117 Cal. 195, 49 P. 8; Los Angeles Co. v. Orange Co., 97 Cal. 329, 32 P. 316; Whitney v. Inhabitants of Stow, 111 Mass. 368; Pulaski Co. v. Judge, 37 Ark. 339; Burrough of Dunmore's Appeal, 52 Pa. 374.) In the case of Whitney v. Inhabitants of Stow, 111 Mass. 368, the question arose as to the power of the legislature to place the debt of school districts upon a town upon abolishing the districts. The court on page 372 says: "The doubt suggested at the argument as to the constitutionality of the statute of 1869, chapter 423, section 6, appears to the court to be without foundation. The power of the legislature, at its discretion, to abolish school districts or other districts, established by its authority for special municipal purposes, is undoubted." (Blackstone v. Taft, 4 Gray, 250; Weymouth & Brantree Fire Districts v. County Commissioners, 108 Mass. 142.) Where a county is divided and property and debts are to be apportioned, political considerations are involved, and the legislature must directly or indirectly pass upon them. (Cooley on Taxation, 3d ed., p. 1304.) If the legislature has not made provision for the proper adjustment of this indebtedness in conformity with the provisions of this section of our constitution, it can do so in the future, and it is not for the courts to assume that the legislature will not do its duty in the matter. (Beals v. Amador County, 35 Cal. 624; People v. Alameda County, 26 Cal. 642; Napa Valley R. R. Co. v. Napa Co., 30 Cal. 435; Creighton v. San Francisco, 42 Cal. 446; 1 Dillon on Municipal Corporations, 4th ed., sec. 189; Perry County v. Conway Co., 52 Ark. 430, 12 S.W. 877, 6 L. R. A. 665; New Orleans v. Clark, 95 U.S. 644, 24 L.Ed. 521; Johnson v. San Diego, 109 Cal. 468, 42 P. 249, 30 L. R. A. 178.) It is further contended that the act is unconstitutional because if Nez Perce county is now compelled to pay a part of Shoshone county's debt, there is no constitutional method whereby the territory annexed can ever be held or compelled to pay this debt. Assuming there is no way, that would be no reason for holding the act void. It is within the power of the legislature to impose terms upon Nez Perce county upon its receiving practically half of the territory of Shoshone county, and Nez Perce county will not be heard to complain, although she may not have had any voice in the matter except through her representatives in the legislature which enacted the law. (Laramie County v. Albany County, supra; Mount Pleasant v. Beckwith, 100 U.S. 514, 25 L.Ed. 699; Lowe v. Hardy, 7 Utah 368, 26 P. 982; In re House Bill, 9 Colo. 639, 21 P. 478; Perry County v. Conway County, 52 Ark. 430, 12 S.W. 877, 6 L. R. A. 665; New Orleans v. Clerk, 95 U.S. 644, 24 L.Ed. 521.) The general provisions of the constitution relative to taxation are not applicable to extraordinary cases like the division of a county. (Ottawa County v. Nelson, 19 Kan. 234, 27 Am. Rep. 101; City Council v. Board of Commissioners, 33 Colo. 1, 77 P. 858, and cases cited.) It is contended that it is not due process of law to compel Nez Perce county to pay a part of the indebtedness of Shoshone county. The courts have uniformly held that it is within the power of the legislature upon the annexation of a part of the territory of one municipal corporation to another that the indebtedness of the county from which the territory has been detached might be apportioned between the two municipalities. (Lowe v. Hardy, 7 Utah 368, 26 P. 982; Mount Pleasant v. Beckwith, 100 U.S. 514, 25 L.Ed. 699; In re House Bill, 9 Colo. 639, 21 P. 478; 1 Dillon on Municipal Corporations, 4th ed., sec. 63, also sec. 189; Rawson v. Spencer, 113 Mass. 40; Burrough of Dunmore's Appeal, 52 Pa. 374; Pulaski Co. v. Judge, 37 Ark. 338; New Orleans v. Clark, 95 U.S. 644, 24 L.Ed. 521; Perry County v. Conway County, 52 Ark. 430, 12 S.W. 877.)

B. S. Crow, Prosecuting Attorney for Nez Perce County, and Benjamin F. Tweedy, for Defendant.

Section 3, article 18 of the state constitution limits and restricts the power of the legislature, and all that the legislature can do is to continue the original liability of the territory annexed. This constitutional provision deprives the legislature of the power, if it...