The Grand Island and Northern Wyoming Railroad Company v. Baker

• Decision Date: 30 June 1896
• Citation: 45 P. 494,6 Wyo. 369
• Parties: THE GRAND ISLAND AND NORTHERN WYOMING RAILROAD COMPANY v. BAKER, TREASURER, ETC., ET AL
• Court: Wyoming Supreme Court

45 P. 494

6 Wyo. 369

THE GRAND ISLAND AND NORTHERN WYOMING RAILROAD COMPANY v. BAKER, TREASURER, ETC., ET AL

Supreme Court of Wyoming

June 30, 1896

Commenced in the district court April 8, 1896.

RESERVED questions from the District Court for Crook County, Hon WILLIAM S. METZ, Judge.

This was an action brought by the Grand Island and Northern Wyoming Railroad Company against the treasurer and ex-officio collector of taxes, and the Board of the Commissioners of the county of Crook, to enjoin the collection of certain taxes levied in the year 1895. The material facts are stated in the opinion.

Burke &amp Fowler and N. K. Griggs for plaintiff.

It was clearly the intention of the people in adopting the constitution to place the public business upon a cash basis so far as relates to current expenses, and to limit such expenses, so far as they are to be paid by the county, to the revenue to be derived from a twelve-mill levy. (Const. Art. 15, Secs. 5, 13; Art. 16, Secs. 2, 3, 4.) This view is that adopted by the legislature. (Laws 1893, Ch. 33, Sec. 1; Laws 1895, Ch. 106.) A legislative construction, though not conclusive, is entitled to great weight. (Jackson v. Board, 34 Neb. 680.) In construing the term "public indebtedness," it is proper to consider the situation existing at the time the constitution was adopted, and to thus arrive at the evident meaning of the term as then used. (Morgan v. Cross, 46 Vt. 787.) No other county indebtedness existed except that which was then or afterward funded. Legislative authority must be shown for every levy of taxes. (Cooley Const. Lim. 101, 133, 641, 642; Ex parte Schmidt, 2 Tex. Civ. App., 196; Sutherland Stat. Const., 365; Desty on Tax'n., Sec. 41; City v. Raley, 32 S.W. 183; Lake Co. v. Rollins, 130 U.S. 662; Guthrie v. Bank (Okl.), 38 P. 5.) The tax to pay a judgment must be within the constitutional limit. The law does not permit that to be done indirectly which may not be done directly. (Osborne Co. v. Blake, 25 Kan. 247; State v. Marion Co., 21 id., 319; City v. Edwards, 84 Ill. 632: Supervisors v. U.S. 18 Wall., 71; Board v. King, 67 F. 202; R. R. Co. v. York Co., 7 Neb., 487; R. R. Co. v. Buffalo Co., 9 id., 449; R. R. Co. v. Dawson Co., 12 id., 255; Hebard v. Ashland Co., 55 Wis. 145; R. R. Co. v. Clayton Co., 13 Neb. 367; State v. Weir, 33 id., 35; Cumings v. Fitch, 40 O. St., 56; Cleveland v. Heisley, 41 id., 670: People v. Scott, 9 Colo. 422; People v. May, id., 80; Trull v. Board, 72 N.C. 391; Buchanan v. Litchfield, 102 U.S. 278; French v. Board, 74 N.C. 692; Weightman v. Clark, 103 U.S. 256; State v. Co., 14 Neb. 42; In re House Roll, 31 id., 505; Young v. Lane (Neb.), 62 N.W. 202; Mfg. Co. v. Harvey, 45 Iowa 466; Shackelton v. Guthrie, 39 N.J.L. 660; Appeal of Erie, 91 Pa. 398; Board v. Board, 107 N.C. 110; Ellerton L. Co. v. Mayor, 89 Ala. 477; Arnold v. Hawkins, 95 Mo. 569; Black v. McGonigle, 103 id., 189; Wright v. R. R. Co., 120 Ill. 541; R. R. Co. v. Board, 47 Kan. 722; People v. State Board, 20 Colo. 220; Desty on Taxation, Vol. 2, pp. 1069-1077; Law v. People, 87 Ill. 386.) The foregoing authorities are also cited upon the proposition that the term "public indebtedness" as used in Sec. 5 of Art. 15 of the constitution, refers to indebtedness existing at time of adoption of the constitution, and not to unpaid current expenses contracted afterward.

The attack upon the judgments in this case is not strictly a collateral attack upon them, but is made for the purpose of determining the validity of tax levied to pay them. The several judgments were rendered upon warrants and certificates of indebtedness, and they could not be used as a claim against the county except in mandamus to compel a tax for their payment. (2 Desty 1075; Cooley on Taxation, 737-8; Robinson v. Supervisors, 43 Cal. 353.) The whole transaction from the auditing of the claims including the entry of judgment upon them was contrary to law and wholly void, the debts exceeding the limit. (Board v. State, 18 Neb. 523; Taxing Dist. v. Loague, 129 U.S. 493; Cody v. Board, 10 Neb. 29; Stewart v. Otoe Co., 2 id., 177; Christie v. Supervisors, 60 Cal. 164; Jeinfer v. Co., 2 Disney, 189; Wessel v. Weir, 49 N.W. 785; State v. Lincoln Co., 18 Neb. 283.) The Board of County Commissioners have no authority to confess judgments against the county. Judgments rendered without jurisdiction are void. (Ex parte Sawyer, 124 U.S. 124; Risley v. Bank, 83 N.Y. 318; Paul v. Willis, 69 Tex. 269; 12 Ency. L., 147; Board v. King, 67 F. 202.) A judgment by confession can only be entered upon a strict compliance with the statute. (Black on Judg., 50-2; Howell v. Mfg. Co., 32 Neb. 627.)

J. L. Stotts, County Attorney, and M. Nichols for defendant.

Bonded indebtedness is not the only class coming within the meaning of the term "public debt." (State v. Hickman, 11 Mont. 541; People v. May, 9 Colo. 80; id., 404; Law v. People, 87 Ill. 385; Gray v. Bennett, 3 Metc., 526.)

A judgment rendered against a county by a competent court is an existing and outstanding indebtedness which must be paid in the manner provided for the payment of such judgments. And it is not necessary to go further in the argument of this matter, so far as it relates to judgments already rendered, that the railway company can not attack the judgments in this manner, and that the judgments having been rendered by the district court, until reversed or set aside in a regular way, stand as an obligation against the county and must be paid by a levy of taxes. And if the board of county commissioners had refused to make the levy, mandamus would lie to compel them to do so. (Cooley on Taxation, 138; R. S., Sec. 1798.)

It seems to us that the limitation of twelve mills for county revenue was to prevent the board of county commissioners from incurring indebtedness by extravagant or reckless management. But the salary of an officer is not an indebtedness of the county which is created by the county board. (State vs. Weir, 33 Neb. 35.)

Salaries are not within the provision limiting public indebtedness. (Welch v. Strother, 74 Cal. 413; 23 P. 740; Grant Co. v. Lake Co., 17 Or. 453.) The presumption is that a judgment against a county is for a valid subsisting outstanding obligation, and when so rendered is binding upon the county. And on mandamus to compel levy of a tax to pay the judgment it can not be attacked. (People v. Board (Colo.) 42 P. 1032.) The judgments were not rendered on confession, but the county was brought into court, in each instance, in the regular way.

The county under Sec. 3, Art. 16 of the constitution, as we interpret it, may in any year create a debt of two per cent.; and if any of it remains unpaid it becomes a part of the public debt which may be paid by a tax in excess of twelve mills.

J. F. Hoop and R. H. Vosburgh appeared in the interests of Sheridan and Weston Counties respectively, and submitted briefs contending for the same propositions as maintained in the brief for defendant, and citing the same authorities.

Chester B. Bradley appeared amicus curial.

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

Plaintiff filed its petition in the district court for Crook County, praying for an injunction against the collection of a portion of the taxes levied in that county for the year 1895. A demurrer was interposed, and upon the hearing thereof the court ordered the cause to be reserved to this court for its opinion upon certain questions certified to be important and difficult.

In the year 1895 the board of county commissioners of the county of Crook levied the following taxes:

General Revenue

10 mills.

General County School

2 mills.

Judgment Tax

3 1/4 mills.

Court House and Jail Bonds

2 mills.

Funding Bonds

2 1/2 mills.

amounting in the aggregate to 19 3/4 mills on the dollar. The only part of the levy complained of in this action, is the judgment tax of 3 1/4 mills, which is assumed to have been levied to pay certain judgments rendered against the county. The facts connected with the judgments are not, as the pleadings now stand, sufficiently disclosed to definitely indicate the precise nature of the claims entering into them. We are not informed by the pleadings, either as to the time when, or the court wherein, such judgments were secured. Inferentially it may appear that they were obtained since the admission of the State, and largely upon warrants issued in payment for current expenses of the county, since the adoption of the constitution. Indeed, the argument in this court was largely confined to the effect of judgments rendered upon warrants so issued, and the taxing power associated therewith, although the suggestion was advanced by counsel that for all which appeared in the pleadings; funding bonds might have constituted the source of the judgments.

It would seem that no necessity exists for dispute upon the essential facts. It would have been more satisfactory, therefore, and would perhaps have narrowed the scope of our investigation, had the issues been fully made up, prior to the reservation to this court, so as to clearly and without cavil present the questions submitted by the learned court for our consideration.

It is not our duty, however, to pass upon the demurrer. Our jurisdiction is limited to a decision upon the certified questions, and we are not requested thereby to direct the ruling which should be made upon the present condition of the pleadings.

The judgment tax is charged to have been illegal and void, and levied without authority; that the same was not levied for the payment of the public debt of the county or the interest thereon; and the county had exhausted its power to levy taxes for general revenue purposes by a levy of the constitutional limit of...