State v. Hopkins

• Decision Date: 21 February 1896
• Citation: 14 Wash. 59,44 P. 134
• Court: Washington Supreme Court
• Parties: STATE EX REL. BARTON v. HOPKINS, COUNTY AUDITOR, ET AL.

44 P. 134

14 Wash. 59

STATE EX REL. BARTON v. HOPKINS, COUNTY AUDITOR, ET AL.

Supreme Court of Washington

February 21, 1896

Appeal from superior court, Thurston county; T. M. Reed, Judge.

Proceeding by the state, upon the relation of W. E. Barton, against George S. Hopkins, as auditor, and George Gelbach, as treasurer, of Thurston county, to compel defendants to give effect to an order made by the board of county commissioners assigning to him a portion of delinquent taxes of 1894. From the judgment rendered, defendants appeal. Reversed.

M. A. Root and Haight & Owings, for appellants.

W. I Agnew, for respondent.

HOYT C.J.

The relator constructed certain waterworks for the county of Thurston, and, to pay him therefor, the board of county commissioners assigned to him a portion of the delinquent taxes of 1894, which he agreed to receive in full satisfaction of his claim. This proceeding was brought to compel the auditor and treasurer of the county to give effect to the order made in pursuance of the above arrangement. In State v. Hopkins (Wash.) 41 P. 906, we held that it was not within the power of the board of county commissioners to create a special fund upon which a warrant could be drawn in payment of the claim of the relator for the construction of these waterworks; and, if it were necessary to a decision of this case, we should feel compelled to hold that what was attempted by the order of the board of county commissioners which by this proceeding is sought to be enforced, was substantially the same as that which we before held could not be done. In that case it was held that a special fund could not be created into which a sufficient amount of the taxes to be collected should be paid to satisfy a warrant drawn thereon to pay relator's claim. By the order involved in this proceeding, substantially the same result was sought to be accomplished. The only difference between this action of the board of county commissioners and that which was before held to be invalid is that the taxes to be collected in the former case did not take on the special character involved in their being set aside for the payment of this claim until after they were collected; while the present proceeding contemplated the impressment of such special character upon the taxes themselves before they were collected. The result to the relator and to the financial transactions of the county, however, would be precisely the same in the one case as in the other. But, in view of the more important question which has been ably presented in the briefs of counsel and upon the oral argument, it is not necessary to say more upon this subject.

Appellants and respondent agree that the order which is sought to be enforced could only have been properly made by the board of county commissioners when there was no outstanding indebtedness of the county due and payable out of the general fund. It is also agreed by both parties that there was outstanding at the time this order was made a large amount of warrants, which in form were payable out of such general fund. If any of these warrants evidenced a legal indebtedness of the county, it is agreed that it was beyond the power of the board of county commissioners to have made the order under consideration. But respondent claims that none of these warrants evidenced a legal indebtedness of the county, for the reason that the liabilities for which they were each issued were incurred when the county was in debt more than 1 1/2 per cent. of the value of its taxable property, as shown by the last assessment roll. Appellants contend that these warrants are legal, for the reason that they were issued in anticipation of the revenue coming to the county from the tax levy of the current year and the unpaid taxes upon the rolls for prior years, and for that reason constituted no part of the indebtedness of the county. This contention might be sustained if, under the law, these warrants would be first entitled to payment out of such revenue; but the statutes having provided that warrants should be paid in the order of their dates, without regard to the year in which they were issued, those for any particular year would not be a first charge upon the revenues for that year. See Mason v. Purdy, 11 Wash. 591, 40 P. 130.

But it does not follow that incoming revenues which, under proper legislation, might be applicable to the payment of warrants issued after the limit of indebtedness had been passed should not be taken into consideration in determining the amount of such indebtedness, within the meaning of the constitutional provision. If, under certain legislation, the amount of outstanding claims against the county could exceed the constitutional limit to the amount of such unpaid taxes there is foundation for the contention that, under legislation which requires that the warrants should be paid in the order of their issue, the amount of such unpaid taxes should be deducted from the total amount of the claims against the county, to determine its indebtedness, within the meaning of the constitutional provision. The agreed facts in the case show that if...