Lloyd Corporation v. Bannock County , 53 Idaho 478 ( 1933 )

On the rehearing of this cause, upon the petition of the respondents, the respondents earnestly and forcefully contended that Bannock county's issue of funding bonds is not a limited obligation, but a general obligation of that county.

The members of this court are all agreed that section 15, of article 7, of the state Constitution does not prohibit counties from funding their warrants, and that our Constitution is not a grant of, but a limitation on the powers of the state, and that our legislature may provide for that which is not prohibited, from which it follows that a county, for the purpose of placing itself on a cash basis, is given two methods: 1. It may fund its warrants, or: 2. Levy a special tax of not to exceed ten mills on the dollar. And that view of section 15 was taken by this court in the early case ofBannock County v. Bunting, 4 Idaho 156, 37 P. 277.

The majority of the court concludes that we must give practical effect to the language of section 15, of article 7, of the Constitution: Bannock County et al. v. Citizens Bank Trust Co. et al., ante, p. 159, 22 P.2d 674; Reed v.Gallet, 50 Idaho 638, 299 P. 337. Taxes have been used more than any other instrument of government, as an engine of oppression. Constitutions are made for the use and protection, and not for the oppression, of the people.

Counties have been called upon to make extraordinary expenditures for the relief of unemployed and for charitable purposes, and at the same time have suffered a marked falling off in revenues because many property owners were unable to pay their taxes. In the instant case, the inability of many property owners to pay their taxes caused a carry over of outstanding warrants mounting into more than $347,000. In these circumstances, the board of county commissioners was compelled to adopt one of the two methods provided by section 15, article 7. If it had adopted the method of levying a special tax not exceeding ten mills on the dollar, it would have placed another heavy load upon property owners, which, added to the general tax load, must necessarily have been extremely oppressive, if not confiscatory. That result was avoided by adopting the method of funding the warrants and spreading payment of the bonds over a number of years.

Appellant argues that sections 61-803 and 61-807, I. C. A., are exclusive as to the manner and method of retiring outstanding indebtedness, and cites Peavy v. McCombs, 26 Idaho 143,140 P. 965, in support of that contention. In that case, this court had under consideration chapters 33 and 58 of 1913 Sess. Laws. Chapter 33 provided:

"The board of county commissioners of any county in this state, may issue negotiable coupon bonds of their county for the purpose of paying, redeeming, funding or refunding the outstanding indebtedness of the county, as hereinafter provided, whether the indebtedness exists as warrant indebtedness, or bonded indebtedness. . . . . "

Chapter 58 contained the above-quoted provisions from I. C. A., secs. 61-803 and 61-807.

In Peavy v. McCombs, supra, the court says:

"This court takes judicial notice of the journals of the House of Representatives and Senate of this state in passing upon legislation. (Sec. 5950, subd. 3, Rev. Codes; Burkhart v.Reed, 2 Idaho 503, 22 P. 1.) Chap. 33 passed the House and was transmitted to the Senate on February 5, 1913, and passed the Senate and was returned to the House on February 20, 1913; it was presented to the governor on February 24th. (House Journal, pp. 183 and 360; Senate Journal, p. 212, printed copies.) It was approved by the governor on February 25th. Chap. 58 passed the House and was transmitted to the Senate on March 4th, was passed by the Senate and returned to the House on March 8th, and was presented to the governor on March 8th. (House Journal, pp. 503 and 615; Senate Journal, p. 393, printed copies.) It was approved by the governor on March 13, 1913."

"It thus appears that chap. 58 passed both Houses and was approved by the governor later than chap. 33, and therefore was a later expression of the legislative will than chap. 33. The fact that chap. 58 carries an emergency clause signifies that it was considered more urgent and more important by the legislature than chap. 33, which does not carry an emergency clause."

"For these reasons we think that in case of an irreconcilable inconsistency it should be held that chap. 58 repeals chap. 33 to the extent of such inconsistency."

Sections 61-803 and 61-807, I. C. A., and secs. 30-1401 and 30-1402, I. C. A., as amended 1933 Sess. Laws, p. 231, being in pari materia, and the two last-mentioned sections being a later expression of the legislative will than the first two, applying to the case at bar the rule that statutes in pari materia should be construed together, and also applying the rule announced by this court in Peavy v. McCombs,supra, that in case of an irreconcilable inconsistency between statutes in pari materia, the latest expression of the legislative will should control, then the last expression of the legislative will in 1933 would control in the instant case, even though an irreconcilable inconsistency existed, which we do not concede.

After exhaustive investigation, and much reflection, we finally conclude that under section 15, article 7, of the state Constitution, a county having outstanding and unpaid warrants, being desirous of paying the warrants and placing itself on a cash basis, may, under said section and existing legislation, either levy a special tax, not to exceed ten mills on the dollar, of taxable property, as shown by the last preceding assessment, for the creation of a special fund for the redemption of the warrants, or that a county may fund its outstanding and unpaid warrants, as in the instant case, and that if the warrants are funded, the bonds are general obligations of the county, payable as other general obligations of the county, and that the ten mill levy clause of section 15 has no application to such an issue of funding bonds.

The judgment is affirmed, with costs to respondents.

Budge, C.J., and Givens and Wernette, JJ., concur.