State ex rel. Mountrail County v. Amundson
| Decision Date | 20 March 1912 |
| Court | North Dakota Supreme Court |
Rehearing denied April 29, 1912.
Appeal from District Court, Ward County; Charles F. Templeton Special Judge.
Mandamus by the state, on the relation of Mountrail county and others against Arne Amundson and others, as members of the board of county commissioners of the county of Ward. From the judgment directing the terms of settlement between the counties, both parties appeal.
Affirmed.
R. O Miller, H. J. Linde, George R. Robbins, and George A. Bangs for Mountrail County.
If the legislature does not otherwise provide, it will be presumed that the counties are to be continued precisely as they were created by the division, the old county subject to its former liabilities and owning its property, and the new county starting out afresh, with no liabilities and owning no property save such as may be within its boundaries, and entitled to no credits from the old county. 11 Cyc. 349; 7 Enc. 908, 913; 1 Cooley, Taxn. 414; 1 Dill. Mun. Corp. 63; North Hemstead v. Hemstead, 2 Wend. 109; Laramie County v. Albany County, 92 U.S. 307, 23 L.Ed. 552; People v. Alameda County, 26 Cal. 642; Beals v. Amador County, 28 Cal. 449; Beals v. Amador County, 35 Cal. 624; Los Angeles County v. Orange County, 97 Cal. 329, 32 P. 316; Orange County v. Los Angeles County, 114 Cal. 390, 46 P. 173; Tulare County v. Kings County, 117 Cal. 195, 49 P. 8; Kings County v. Tulare County, 119 Cal. 509, 51 P. 866; Colusa County v. Glenn County, 124 Cal. 498, 57 P. 477; San Diego County v. Riverside County, 125 Cal. 495, 58 P. 81; Riverside County v. San Bernardino County, 134 Cal. 517, 66 P. 788.
Ward County should be charged with the amounts expended for roads and bridges remaining therein. 4 Am. & Eng. Enc. Law, 2d ed. 921; Elliott, Roads & Streets, §§ 52, 77; Christian County Ct. v. Rankin, 2 Duv. 502, 87 Am. Dec. 505; Lawrence County v. Chattaroi R. Co. 81 Ky. 225; Louisville & N. R. Co. v. Whitley County Ct. 95 Ky. 215, 44 Am. St. Rep. 220, 24 S.W. 604; Greenup County v. Maysville & B. S. R. Co. 88 Ky. 663, 11 S.W. 774; Leslie County v. Southern Lumber Co. 28 Ky. L. Rep. 335, 89 S.W. 242; Bidelman v. State, 110 N.Y. 232, 1 L.R.A. 258, 18 N.E. 115; Ft. Covington v. United States & C. R. Co. 8 A.D. 223, 40 N.Y.S. 313, affirmed in 156 N.Y. 702, 51 N.E. 1094; Palatine v. Canajoharie Water Supply Co. 90 A.D. 548, 86 N.Y.S. 412, affirmed in 184 N.Y. 582, 77 N.E. 1197; Lenox v. State, 61 Misc. 28, 114 N.Y.S. 746; Corwin v. Cowan, 12 Ohio St. 629; Wagner v. Cleveland & T. R. Co. 22 Ohio St. 563, 10 Am. Rep. 770; Perry County v. Newark, S. & S. R. Co. 43 Ohio St. 451, 2 N.E. 854; Chambersburg & B. Twp. R. Co. v. Franklin County, 6 Serg. & R. 229; Shirk v. Carroll County, 106 Ind. 573, 5 N.E. 705, 7 N.E. 251; Troy v. Cheshire R. Co. 23 N.H. 83, 55 Am. Dec. 177; Monmouth County v. Red Bank & H. Turnp. Co. 18 N.J.Eq. 91; Com. v. Fitzgerald, 164 Mass. 587, 42 N.E. 119; State ex rel. Neeves v. Wood County, 41 Wis. 28; Howard County v. Chicago & A. R. Co. 130 Mo. 652, 32 S.W. 651; Hookset v. Amoskeag Mfg. Co. 44 N.H. 105.
Dudley L. Nash, states attorney, and George L. Ryerson, Assistant, (Scott Rex of counsel), for Ward County.
Depreciation, deterioration, and decay are to be taken into account in making the computation under subdivision 2 of the statute. Lawrence County v. Mead County, S.D. , 62 N.W. 131; Vermont Loan & T. Co. v. Whithed, 2 N.D. 101, 49 N.W. 318; Gaar, S. & Co. v. Sorum, 11 N.D. 171, 90 N.W. 802; State ex rel. Flaherty v. Hansen, 16 N.D. 347, 113 N.W. 371; People v. Ballard, 134 N.Y. 303, 17 L. R.A. 737, 32 N.E. 62; Manston v. McIntosh, 58 Minn. 525, 28 L.R.A. 605, 60 N.W. 672; Church of Holy Trinity v. United States, 143 U.S. 457, 36 L.Ed. 226, 12 S.Ct. 511; Burleigh County v. Kidder County, 20 N.D. 27, 125 N.W. 1063; Re Fremont & B. H. Counties, 8 Wyo. 1, 54 P. 1073; Shoshone County v. Thompson, 11 Idaho 130, 81 P. 73; Forest County v. Langlade County, 91 Wis. 543, 63 N.W. 760, 65 N.W. 182.
The facts necessary to a correct understanding of the questions involved on these appeals are not seriously in dispute, nearly all of such facts having been stipulated. In brief they are as follows:
Mountrail county, which was formerly embraced within the territory of Ward county, was, at the general election in 1908, duly segregated therefrom and set apart as Mountrail county pursuant to law. Such new county was organized in January, 1909, and thereafter the commissioners of the two counties met pursuant to law and attempted to effect a settlement of the property and indebtedness between the two counties. They failed to agree as to the statutory rule which they should follow in making such settlement, and for the purpose of obtaining a judicial determination of the questions in dispute, relators, both in their capacity as individual taxpayers and as members of the board of county commissioners of Mountrail county, instituted mandamus proceedings against defendants as members of the board of county commissioners of Ward county. Issue was joined, and, as before stated, the facts were nearly all stipulated, and at the conclusion of the trial the district court found that there was a balance of $ 6,301.95 due from Mountrail county to Ward county, and entered judgment requiring the former to deliver to the latter its bonds for such balance.
From such judgment both parties have appealed. The learned trial court found that the total outstanding indebtedness of the original county of Ward on July 1, 1909, was $ 349,468.06; that the amount of outstanding bonds given and money paid for public property owned by and remaining within the limits of the original county of Ward on July 1, 1909, was $ 140,369.49; that the public funds of Ward county on hand July 1, 1909, excluding special funds, such as fire, school, road, and other funds, was $ 164,891.70; that after subtracting the last two items from the total indebtedness of Ward county a balance remains of $ 44,206.87, and that the portion thereof which Mountrial county should pay to Ward county, according to the comparative assessed valuations of the respective counties, is the sum of $ 6,301.95.
The questions in dispute are:--
1st. Is Ward county entitled to credit for any depreciation in the value of the property remaining within her territorial limits, and should she be charged with any appreciation in the value of such property?
2d. In such settlement should Ward county be charged with the amount expended by her in the construction of roads and bridges remaining within its limits, Mountrail county contending that the roads and bridges therein should be considered and treated as property within the meaning of the statute which we will hereafter notice.
3d. Included within the total outstanding indebtedness of Ward county is the amount of $ 79,649 in the form of bonds and warrants for material and labor in the construction of roads and bridges remaining within the limits of Ward county; and the question is, Should Ward county be charged with the amount of this item, on the theory that such roads and bridges constitute property? And,
4th. The facts disclose that Ward county had expended the sum of $ 17,976.80 for record books consisting of permanent records for use in the various county offices, and should Ward county be charged therewith in such accounting?
We find no difficulty in arriving at the conclusion that the first question should be answered in the negative. The controlling statute, (Rev. Codes 1905, § 2336) is not susceptible of the construction contended for in behalf of Ward county. This section requires the county boards at their joint session The words of the statute above quoted are unambiguous and leave no room for construction. If the property for which the bonds were given or money paid is still in existence and remaining in the original county, such county must be debited with the cost thereof as shown by the bonds given or money expended therefor, irrespective of its actual value or of any depreciation or appreciation in value of such property. The legislature, in its wisdom, saw fit to adopt the cost and ignore the actual value of such property as a proper rule in effecting such settlement; and whether such rule is equitable or inequitable the courts have no concern. Burleigh County v. Kidder County, 20 N.D. 27, 125 N.W. 1063.
The second and third questions are more difficult to answer. In behalf of Mountrail county it is strenuously contended that Ward county should be charged in such settlement with the amounts expended for roads and bridges remaining therein, and such contention is challenged in behalf of Ward county with equal vigor. Are the roads and bridges, or either of them which have been constructed by Ward county and which remain therein "public property owned by . . . the original county," within the meaning of subd. 2, § 2336, Rev. Codes, 1905, and that therefore the amount of outstanding bonds given or money paid therefor must, pursuant to said section, be deducted from the total indebtedness of Ward county? In order to answer such question in the affirmative, we are required to hold that such roads and bridges are the property of Ward county. In behalf of Mountrail county it is insisted that Ward county has, at least, an insurable interest in such roads and bridges, and that such insurable interest constitutes...
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