Allen v. Doumecq Highway District , 33 Idaho 249 ( 1920 )

MORGAN, C. J.

Appellants commenced this action to procure an injunction restraining respondents from issuing, negotiating or selling bonds of Doumecq Highway District declared to have been authorized at an election held by the qualified electors thereof to whom the following question was submitted pursuant to a resolution adopted by the board of commissioners on February 22, 1919:

“Shall Doumecq Highway District in Idaho county, state of Idaho, and its highway board be empowered and authorized to issue the negotiable coupon bonds of the district in the amount of $17,000 bearing interest at a rate not to exceed six per cent per annum; said bonds to bear date April 1, 1919, payable twenty years after date; interest to be paid semi-annually January 1st and July 1st each year; for the purpose of constructing, improving and repairing highways in the said Doumecq Highway District, and in particular therefor to expend not to exceed $5,000 to construct and aid in the construction of a wagon bridge across the Salmon River at or near the mouth of Whitebird Creek (said mouth of Whitebird Creek being in Whitebird Highway District, adjoining Doumecq Highway District), and to expend $12,000.00 on roads to be constructed and maintained to connect with said bridge; and also for the purpose of purchasing material and machinery and defraying necessary expenses of the district in connection therewith?

IN FAYOR of issuing bonds to the amount of $17,000 for the purposes stated in .the resolution of February 22, 1919. O

AGAINST issuing bonds of the amount of $17,000 for the purposes stated in the resolution of February 22, 1919. o O

“Elector will place a cross (X) in the circle following the expression of his vote. ” i

The trial resulted in a decree denying the injunction and dismissing the action from which, and from an order overruling a motion for a new trial, this appeal is prosecuted.

Appellants insist the election is invalid because two proposals were submitted as one question and the voters were not given an opportunity to exercise the elective franchise on these matters separately, but were required to vote for or against them together.

Respondents rely on Independent Highway District No. 2 v. Ada Co., 24 Ida. 416, 134 Pac. 542, wherein it was held that election notices providing that the proceeds of the sale of bonds were to be used in the construction of roads and bridges did not state a double purpose, since bridges and roads are parts of the general highway system, but the facts in that case are so different from those now before us, that it does not constitute a precedent which may be safely followed in the case at bar.

The boards of commissioners of Whitebird, Deer Creek and Doumecq Highway Districts, at a joint meeting, agreed to construct a bridge across Salmon River, which flows between them, Whitebird being on one side and Deer Creek and Doumecq on the other, and to apportion the cost thereof among the three districts.

Pursuant to this agreement, and in order to raise money with which to build the bridge, bond elections were held which, in Whitebird and Deer Creek districts, resulted in favor of, and in Doumecq district against, the issuance and sale of bonds.

It was then agreed between the commissioners of Deer Creek and Doumecq that the former district would pay the latter’s share of the cost of the bridge and the latter district would repay to the former the money so advanced. Thereafter the bridge was constructed at a cost of $22,765. together with an additional sum for extra concrete and reenforcing steel, two thousand dollars of which was paid by Idaho county and of the balance Whitebird district paid 32.6% and Deer Creek district paid 67.4%.

The evidencé clearly establishes that the $5,000 item was placed in the proposal for a bond issue for the purpose of raising money with which to reimburse Deer Creek district, in whole or in part, for expenditures made by it pursuant to the agreement between its commissioners and those of Doumecq district. It is also clearly established that the latter district has never had an income provided for it for any year since it came into existence sufficient to meet the obligation which its board of commissioners sought, by that agreement, to contract against it.

The constitution of Idaho, art. 8, sec'. 3, provides:

“No county, city, town, township, board of education, or school district, or other subdivision of the state, shall incur any indebtedness, or liability, in any manner, or for any purpose, exceeding in that year, the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void. Provided, That this section shall not be construed to apply to the ordinary and necessary expenses authorized by the general laws of the state.”

The cost of construction of the bridge was not an ordinary and necessary expense authorized by the general laws of the state, and the effort to incur an indebtedness on the part of Doumecq Highway District by agreement between its board of commissioners and that of Deer Creek district was in contravention of the section of the constitution above quoted and void. (McNutt v. Lemhi County, 12 Ida. 63, 84 Pac. 1054; Feil v. City of Coeur. d’Alene, 23 Ida. 32, 129 Pac. 643, 43 L. R. A., N. S., 1095; Boise Development Co., Ltd., v. Boise City, 26 Ida. 347, 143 Pac. 531; School Dist. No. 8 v. Twin Falls etc. Ins. Co., 30 Ida. 400, 164 Pac. 1174.)

The question submitted to the voters contained not only the proposal to issue and sell the bonds of the district and to expend $12,000 of the proceeds thereof in constructing, improving and repairing roads, but also, while not expressly stated, to ratify, if it can be ratified (McNutt v. Lemhi Co., supra), the agreement of the commissioners to repay to Deer Creek district the money advanced by it for the Doumecq district in payment of the latter’s proportionate share of the cost of constructing the bridge across Salmon River, and to expend not to exceed $5,000 of the proceeds of the sale of the bonds toward the payment thereof.

These were separate and distinct' proposals and because of the manner in which they were submitted a voter could not cast his ballot in favor of one of them and against the other if he desired to do so but, in order to vote to issue and sell bonds for road construction and improvement, it was necessary for him, whether he wanted to do so or not, to vote to issue and sell bonds to pay the claim of the Deer Creek Highway District. For this reason the election is invalid. (Ostrander v. City of Salmon, 20 Ida. 153, 117 Pac. 692, and cases therein cited.)

The judgment appealed from is reversed. Costs are awarded to appellants against respondent Doumecq Highway District.

Rice and Budge, JJ., concur.