Erskine v. Nelson County

27 L.R.A. 696, 58 N.W. 348, 4 N.D. 66, 1893 N.D. LEXIS 48

• Court: North Dakota Supreme Court
• Decided: December 2, 1893
• Status: Published

Opinions

Bartholomew, C. J.

The plaintiff sought to hold the defendant liable upon certain county warrants. These warrants were regular in form, and purported to be used for debts incurred by the county; but it is uncontroverted that, in so far as the trial court refused to give judgment upon these warrants against the defendant, the warrants were originally illegal and void. The debts which they represented were obligations which the board of county commissioners had no authority to create, because the expenditures at the time were in excess of the amount which could be provided for by the current revenue of the county from the tax levy of the year. It is unnecessary to refer to the statute or other authority which renders void these wai'rants representing such expenditures. The counsel for plaintiff makes no contention against their original invalidity, but strenuously urges here that they have been transmuted into legal obligations of the county by an act of the legislature passed March 13, 1885, which provides as follows:

“An act to authorize the county commissioners of Nelson County, Dakota, to fund the outstanding indebtedness thereof.

“Be it enacted by the legislative assembly of the Territory of Dakota:

“Section i. That the board of county commissioners of the County of Nelson, in the Territory of Dakota, be empowered, and are hereby authorized, to issue bonds for not less than five hundred (500) dollars each, the total amount of such issue not to exceed thirty thousand (30,000) dollars; said bonds to draw interest at a rate not to exceed eight (8) per cent, per annum, payable annually at the county treasurer’s office of said Nelson County. Said bonds shall specify on their face the date, amount, for what purpose issued, the time and place of payment and rate of interest. Said bonds and coupons thereto attached shall be severally signed by the chairman of the board of county commissioners of said Nelson County, and attested by the clerk or auditor of said Nelson County, said bonds to be payable at the office of the county treasurer of Nelson County, or such other place as the board of county commissioners may designate.

“Sec. 2. Said bonds shall be dated the first day of July, A. D. 1885, and shall be payable in twenty (20) years, with the privilege of calling in said bonds at any time after ten (10) years.

“Sec. 3. The board of county commissioners of said Nelson County is hereby authorized, and it is made their duty to levy a sufficient tax for each year, besides the ordinary tax authorized by law, to be levied for the purpose of paying the interest of said bonds; provided farther, that seven (7) years after the time of issue of said bonds, it is made the duty of said board of county commissioners to levy a sinking fund for the purpose of paying off and redeeming said bonds, said tax not to exceed two (2) mills on the dollar of the valuation of said county in any one year.

“Sec. 4. It is hereby made the duty of the county treasurer of Nelson county to negotiate the sale of said bonds, and to call in all outstanding county warrants whenever the bonds are sold, and he, said county treasurer, shall be allowed two (2) per cent, commission as his fees, and no more, for negotiating said bonds, and paying out said money; provided farther, said bonds shall not be sold for less than par.

“Sec. 5. That after issuing the bonds mentioned in § 1 of this act, no warrants shall be issued by the county board unless at the time of issuing the same there is money enough in the county treasury of Nelson County to pay the warrants so issued.

“Sec. 6. This act shall take effect and be in force from and after its passage and approval.

“Approved March 13th, 1885.”

Respondent’s counsel contends that there was no intent or purpose on the part of the legislature, in the enactment of this statute, to validate any invalid warrants. His position may be thus stated in brief: To legalize void evidences of municipal indebtedness, the purpose to validate them must be clearly expressed by the legislature, or be deducible from the statute by necessary implication, and that in the statute in question there is neither a clearly expressed nor necessarily implied intention to validate any invalid warrants of Nelson County. The legal proposition involved in this position is sound, both upon principle and authority. Dill. Mun. Corp. § 544; Hayes v. Holly Springs, 114 U. S. 120, 5 Sup. Ct. 785; Beloit v. Morgan, 7 Wall. 619; Brown v. Mayor, 63 N. Y. 239. But we encounter here the ever-recurring difficulty of applying recognized legal principles to the facts of a given case. It might greatly lessen the labor of courts if the legislative intent were always expressed in clear and unequivocal language. It might benefit the tax payers and the state if validating acts were always couched in express and unmistakable terms. But it is not the province of a court to dictate the language that shall clothe legislative enactments. Courts may say in certain cases, as they do in this, that they will accept no doubtful construction, but, when that which it is clearly provided shall be done cannot be done without accomplishing a certain result, it must be presumed that it was the legislative purpose to accomplish such result, and courts cannot excuse their failure to give effect to this legislative purpose by saying that the legislature might have used more apt terms in which to declare it. It a* must then be our sole purpose, in this case, to ascertain whether the legislature, by the enactment in question, clearly and necessarily evinced the legislative intent and purpose to validate the invalid warrants of Nelson County.

At the time of the passage of said act, certain facts existed,— some of them notorious, and others of them of record, and brought to our attention by the abstract in this case, — of which we must not lose sight, if we would correctly measure the legislative purpose. The defendant county was organized in June, 1883, without funds in its treasury, and the act in question was passed at the first session of the legislature thereafter. The total assessed valuation of the county for the year 1883 was $230,330, and the total levy for all county purposes and for roads and bridges was 10 mills on the dollar, making the total revenue for that year $2,303. The assessed valuation of said county for the year 1884 was $771,823. There was no levy whatever for that year, and consequently no authorized revenue for that year. The statute was passed prior to the time fixed by law for the assessment and levy in 1885, and hence dealt with the fiscal affairs of the county as they were left by the tax proceedings for the years 1883 and 1884. Under the law of the then Territory of Dakota, the county commissioners of the defendant county were without power to issue warrants in excess of the amount that could be raised from the tax levy of the current year. All warrants in excess of that amount were ttltra vires and void. As we have seen, that amount for the year 1883 was $2,303, and for 1884 it was nothing. Prior to March 13, 1885, — the date of the approval of said act, — the defendant county had executed and delivered its warrants to the full amount of $32,739.16. Of this sum, warrants to the amount of $30,436.16 were in excess of the limit fixed by law, and hence invalid. But the county had actually paid upon its warrants the sum of $4,411.33. This the county had been able to do, because, although the trial court found. that there was no levy in 1884, yet there was a pretended levy; and the sums voluntarily paid as taxes under such pretended levy, added to the amount realized from the levy for 1883, enabled the 'county to make such payments. And, as the amount thus paid exceeded the authorized revenue for the two years, it follows that all unpaid warrants were in excess of the limit, and void. But the outstanding warrants, all of which were unauthorized, with the accumulated interest thereon, amounted, at the date of the passage of said act, to the sum of $29,955. The act authorized funding bonds to the amount of $30,000, barely sufficient to cover all outstanding warrants. If, as has been suggested, the act, in speaking of county warrants, meant valid warrants, and no others, then it is clear that there were no warrants whatevever upon which the act could take effect. No single step could be taken under the act, and it becomes a useless blot upon the statute book. If, on the other hand, by the use of the terms “county warrants,” the legislature meant all instruments that were such in form, which had been put forth by the county, purporting on their face to be valid obligations of the county, and if it was the purpose to validate all such instruments, and provide for their payment, then every sentence of the act becomes instinct with life and purpose and usefulness.

The claim is made, however, that there were some valid outstanding warrants; that it is almost universal that there are some delinquent, uncollectible taxes; and that, to the extent of such delinquency, the outstanding warrants would be valid. It seems a sufficient answer to say that there is no claim in the record that there was any delinquency in 1883. But granting the usual percentage of delinquency upon a total tax but little in excess of $2,000, the amount thereof, when compared with the amount of bonds authorized by the act, is too insignificant to affect the rule of construction.

It is urged upon us that these facts which we have been considering were not known to the legislature; that a bill was presented to that body entitled “An act to authorize the county commissioners of Nelson County, Dakota, to fund the outstanding indebtedness thereof,” and that such bill was passed without investigation by the legislature as to whether or not Nelson county had any indebtedness, and, if any, how much; that such matters were left entirely to the discretion of the county commissioners. We are not allowed to cast upon the popular branch of goverment this imputation of ignorance and negligence. On the contrary, we are bound to presume that it performed its duty intelligently and faithfully; and, unless the contrary appear from its own records, we think such presumption ought to be conclusive here. At § 331, Suth. St. Const., it is said: “It is not to be presumed that the legislature have assumed the existence of a fact upon which an act of legislation is based, without evidence. On the contrary, courts are bound to presume that they acted upon good and sufficient evidence, and that presumption is conclusive on the question of the validity of the act. It was so held on an objection to the validity of an act organizing a new county, —that it did not contain the population required by the constitution. It is presumed, as well on the ground of good faith as on the ground that the legislature would not do a vain thing, that it intends its acts, and every part of them, to be valid, and capable of being carried into effect.” In Road Co. v. Woodhull, 25 Mich. 99, Judge Cooley says: “The legislature will not only choose its own modes of collecting information to guide its legislative discretion, but, from due courtesy to a co-ordinate department of the government, we must assume that those methods were the suitable and proper ones, and that they led to correct results. And, if the records show no investigation, we must still presume the proper information was obtained; for we must not suppose the legislature to have acted improperly, unadvisedly, or from any other than public motives, under any circumstances, when acting within the limits of its authority.” Again, in De Camp v. Eveland, 19 Barb. 81, it is said: “It is not to be presumed that the legislature have assumed the existence of a fact upon which an act of legislature is based without evidence. On the contrary, courts are bound to presume that they acted upon good and sufficient evidence, and this presumption is conclusive.” See, also, Lusher v. Scites, 4 W. Va. 11; Humboldt Co. v. Churchill Co. Com'rs, 6 Nev. 30; Farmers’ Loan & Trust Co. v. Chicago, etc., Ry. Co., 39 Fed. 143. Under these authorities, we are bound to say that, when the legislature authorized the issuance of the bonds of Nelson County to the extent of $30,000 for the purpose of funding outstanding indebtedness, it did so with full knowledge of the financial condition of Nelson County. And, knowing that the outstanding warrants amounted to nearly or quite the full amount of bonds authorized, it also knew that such warrants were beyond any limit allowed by law, and were necessarily invalid. We say the legislature knew this, because it knew that Nelson County was but just organized, and its resources were limited. Its assessed valuations for the years 1883 and 1884 were of record in the territorial auditor’s office, and the total tax that could have been realized on such valuations under the highest levy permissable to the county would not have equaled, in both of said years, one-third of the amount of the bonds authorized, and the ordinary percentage of delinquency would not have equaled one-tenth of of such amount. Hence, we say that the legislature knew that Nelson County had outstanding warrants amounting to nearly $30,000, and knew that all such warrants were beyond the limit allowed by law, and consequently void. Yet the legislature, after authorizing the issuance of bonds to the amount of $30,000, in express terms declared: “It is hereby made the duty of the county treasurer of Nelson County to negotiate the sale of said bonds, and to call in all outstanding county warrants whenever the bonds are sold.” But it was not possible that the treasurer should perform this duty thus unequivocably thrust upon him without paying warrants issued in excess of authority. Hence, the intention of the legislature that such warrants should be paid is unmistakable and unavoidable. ’ Thus far in this discussion, we have not stopped to inquire whether § I of the act was mandatory upon the county commissioners, or directory only, for the reason that, before the warrants upon which this action was brought were last 'presented for payment, the commissioners had in fact issued bonds under the act to the full amount of $30,000, and said bonds had been negotiated, and the proceeds thereof were in the treasury of the defendant county. But, upon a ground not heretofore mentioned, the learned counsel for respondent claims that there were certain legal warrants outstanding upon which the act could take effect. It is urged that, although not appealed from, yet the finding of the court that there was no levy in 1884 should be disregarded, as a matter not in issue, and contrary to the admissions in the pleadings. Let this be conceded pro argumento, and it will but strengthen our conviction. If the levy for 1884 was as high as the law permitted, the county revenue arising therefrom would be $7,718. To this add the sum of $2,303, — the revenue for 1883, — and we have a total for the two years of $10,021. As heretofore stated, the county had paid during said time $4,411.53, leaving a possible balance of $5,609.47 in valid, outstanding warrants. Under the authorities already cited, the presumption is conclusive here that the legislature knew that the outstanding warrants of Nelson County, valid and invalid, amounted to nearly $30,000. Did it authorize bonds in that sum for the purpose of paying less than one-fifth of the amount? To so hold compels us to say that the legislature did an unadvised, useless, and utterly incomprehensible thing. This the authorities sternly forbid. We are then forced to say that the legislature intended to provide for the payment of all outstanding warrants, or it intended to clothe the county commissioners with power to say what warrants should be paid and what should not. But the power to validate invalid evidences of municipal indebtedness is a purely legislative power, and cannot be delegated. If the act sought to throw such power into the hands of the county commissioners, it is unconstitutional and void. But, as between a construction that upholds and one that defeats the statute, the canons of construction leave us no choice. We must uphold the law. Further, how can we say that the legislative mandate to the treasurer to call in “all outstanding warrants” means “all such warrants as the county commissioners may direct?” The interpolation is wholly inadmissable. Let it be granted that certain outstanding warrants were valid. As to such warrants the first section of the act, while in form permissive, was in fact mandatory upon the board of county commissioners. Suth. St. Const. § 598; Supervisors v. U. S., 4 Wall. 435; People v. Board of Sup’rs of Niagara Co., 49 Hun. 32, 1 N. Y. Supp. 460; People v. Sup’rs of Otsego Co., 51 N. Y. 401; People v. Supervisors of Livingston Co., 68 N. Y. 114. But there is no discrimination in the act itself. All outstanding warrants are treated in the same manner, unless, indeed, it was the purpose to clothe the commissioners with power to declare outstanding evidences of municipal indebtedness invalid. But that power is purely judicial, as the power to validate when invalid is purely legislative, and neither power can be exercised by a board of county commissioners. It would seem to follow that the act was entirely mandatory or entirely directory, and in our judgment it was mandatory. Had the act in terms validated all outstanding warrants, its mandatory character would not be questioned; but, if the warrants were validated by necessary implication, they were none the less valid, and the act not less mandatory. Viewing the action of the legislature in the light of the existing facts and circumstances conclusively presumed to have been known to the legislature, and the legislative purpose to validate and provide for the payment of all outstanding warrants cannot be doubted or evaded. Nor did that purpose work any injustice to the taxpayers of the defendant county. The county officials had incurred indebtedness for services, and in constructing roads, bridges, and improvements, far in excess of their legal powers. The county commissioners (the fiscal agents of the county) examined the bills and accounts, and declared them meritorious, and issued their warrants in payment therefor. The county had the benefit of the services and improvements. The moral obligation to pay was complete. The legislature added the legal obligation, but, instead of imposing the burden of payment on the infant county, it was extended through a long series of years, until, presumably, the financial condition of the county would be such that payment could be accomplished without hardship. Certainly, no fair minded taxpayer could object to such a course.

The learned trial court, as appears by its findings of fact and conclusions of law, decided this case exclusively upon the ground that the warrants upon which the action is based were void because issued in excess of the amounts of the current revenues of the years in which they were issued. We hold, upon grounds hereinbefore fully stated, that the act of March 13, 1885, cured that defect, and deprived the county of the defense of ultra vires. The legislature had power to authorize the issue' of warrants to the amount issued before they were issued, and hence it likewise possessed the power to subsequently ratify and validate those actually issued. If the county had any defense to the warrants on the merits, — such as a want of consideration to support them, or fraud in their issuance, — and such facts had been established at the trial, and found by the court, a very different question would have been presented to this court for determination. In the supposed case it would have devolved upon this court to decide whether the legislature could constitutionally legalize warrants issued fraudulently or without consideration, in whole or in part. There are no such findings in the record, and the legal presumptions are that the warrants were issued upon sufficient consideration, and without fraud. The sole ground upon which respondent endeavors, in this court, to uphold the action of the trial court, is that the warrants sued upon, and which appellant admits were originally ultra vires, were not validated by the subsequent legislative enactment. This ground failing, it follows that plaintiff is entitled to judgment for the full amount of such warrants. The trial court is directed to so modify its judgment as to award judgment in plaintiff’s favor for the amounts prayed in the complaint. Appellant will recover costs in this court.

Modified and affirmed.