Theiss v. Hunter

• Decision Date: 25 May 1896
• Citation: 45 P. 2,4 Idaho 788
• Parties: THEISS v. HUNTER
• Court: Idaho Supreme Court

45 P. 2

4 Idaho 788

THEISS v. HUNTER

Supreme Court of Idaho

May 25, 1896

CITIES-INDEBTEDNESS-PAYMENT.-Under section 3, article 8, constitution of Idaho, and sections 82 and 86, of an act concerning cities and villages (2d Sess Laws 1893, p. 124), a city indebtedness incurred during one fiscal year cannot be paid from the income or revenue of a future fiscal year, unless a fund is especially provided for that purpose, and collected therefor in such future year.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment affirmed, with costs of appeal in favor of respondent.

Forney Smith & Moore, for Appellants.

The first cause of action of plaintiffs is based upon a warrant issued against the general fund of the city of Moscow in the year 1892, and that a mandamus was asked to compel the city treasurer to issue a call for and to pay this warrant out of the moneys in his hands derived from taxes levied and assessed under ordinance passed and approved on August 5, 1895. The query then is, Are the moneys of a municipal corporation, as shown by the pleadings in this case, which are collected for the fiscal year of 1895, properly applicable to the payment of an indebtedness incurred by the city in the year 1892? A city warrant issued in the year 1892 is entitled to be paid in accordance with the provisions of law as it existed at that time; and it is the duty of the city to make provisions for the payment of said warrants under the statute under which they were issued. The failure of the city to make such provisions should not be permitted to work injury upon the holder of her warrants. The right of a holder of a city warrant to have the same paid in the manner prescribed by the law under which the same was issued is a vested right, and future legislation cannot devest the same. (Taylor v. Burk, 5 Cal. 332; McCall v. Harris, 6 Cal. 282.) Section 2233 of the Revised Statutes of Idaho contemplates the payment of all warrants upon presentation, and if thereafter the warrants were presented, but not paid for lack of funds, when, as it is alleged and admitted, that said warrant was issued against an appropriated fund for that purpose, then the holder of the warrant should not be the one to suffer, and we claim that this warrant was entitled to be paid in the order of its date of registration out of any funds in the hands of the city treasurer belonging to the fund upon which it was drawn, regardless of the source of the derivation of said funds, for the reason that the law in force at the time of the execution of a warrant would of necessity establish its right to payment, and the city council of Moscow would have no right to pass any ordinance to divert the moneys of the general fund of the city into other channels, to the detriment of the holders of these warrants. (Freehill v. Chamberlain, 65 Cal. 603, 4 P. 646; County of Lincoln v. Luning, 133 U.S. 529, 10 S.Ct. 363; 33 L. ed. 766; La France Fire Eng. Co. v. Davis, 9 Wash. 600, 38 P. 154.) The Session Laws of Idaho of 1893, relating to the levy of a tax by a municipal corporation for the fiscal year, do not limit the application of the funds derived from such taxes to the payment of the warrants issued in that year for which the tax was levied. (Mason v. Purdy, 11 Wash. 591, 40 P. 130.)

G. G. Pickett, for Respondent.

We concur with appellants that a warrant issued in the year 1892 is entitled to recognition under the laws in force at the time of its issuance. Counsel cites section 2233 of the Revised Statutes of Idaho; but section 3 of article 8 of the constitution of Idaho was the law of the state of Idaho at the time of the issuance of the warrants in question, and in all matters concerning payment should govern, as the constitution was in full force the date of such issuance. (Bannock Co. v. Bunting, ante, p. 156, 37 P. 279; San Francisco Gas Co. v. Brickwedel, 62 Cal. 642; Shaw v. Statler, 74 Cal. 258, 15 P. 833; Schwartz v. Wilson, 75 Cal. 502, 17 P. 449; City of East St. Louis v. United States, 110 U.S. 325, 4 S.Ct. 21, 28 L. ed. 162.) The city is limited to a ten mill tax for general revenue purposes; but where a deficiency is shown to exist, resulting from either outstanding debts or excess of ordinary expenses over the funds available for that purpose, the city council has power to proceed according to law and levy an assessment sufficient to meet the deficiency without regard to the ten mill limitation.

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

This suit was brought for a writ of mandate to compel the treasurer of the city of Moscow, Latah county, to pay two certain city warrants--one issued August 5, 1892, and drawn on the general fund; and the other on the sixth day of August, 1894, and drawn on the waterworks fund of said city. This case was submitted to the court on an agreed statement of facts. The writ of mandate was denied, and a judgment of dismissal entered. This appeal is from the order denying the said writ, and from the judgment of dismissal. Both the order and judgment are assigned as error.

The validity of said warrants is not questioned. It is admitted that the one first mentioned was presented for payment on the fifth day of August, 1892, and not paid, for want of funds; and that the other was presented for payment on the first day of September, 1894, and not paid for the same reason. It is also admitted or stipulated that the council of said city, on the fifth day of August, 1895, duly passed an ordinance making appropriations for the payment of the salaries of city officers, for lighting the city, for the fire department, for street improvement, for running waterworks, including engineer's salary, and for general miscellaneous expenses for the fiscal year ending the first Tuesday of May, 1896, and for the payment of interest for one year on the bonded indebtedness of said city, and to provide a sinking fund to pay said bonded indebtedness, and to pay cemetery and contingent expenses. A tax of ten mills on the dollar was duly levied on all of the taxable property within the said city, under and by virtue of said ordinance, and collected; and appellants demand the payment of said warrants out of the fund thus created. The treasurer refused to pay said warrants, on the ground that said funds were only applicable to pay warrants drawn thereon since the first Tuesday in May, 1895, and during the fiscal year ending on the first Tuesday in May, 1896.

Under that state of facts, the court is asked to answer the following questions: 1. "Are the moneys of a municipal corporation as shown herein, by the pleadings herein collected for the fiscal...