Burnett v. Markley

Bean, J.

(after stating the facts). — The contention for plaintiff is, that the action of the county court in making the contract with Markley & Dunstan as alleged, and in issuing the warrants in their favor, is void, be cause,^ — first, the county court had no authority under the law to make such a contract; and, second, it imposed a debt or liability upon the county in excess of the constitutional limit.

1. In support of the first position, it is argued that *439 since it is made the duty by law of the assessor of the county to make out on an assessment roll a list of all the taxable property in his county, that the county court has no power or authority to employ any other person to prepare or assist in the preparation of such a list. But it seems to us that as the county, court is expressly charged with “the general care and management of the county property, funds, and business” (Code, § 896), it may take such measures to secure a full, complete and accurate list of all the assessable property in the county, for the use of the assessor, as in its judgment may seem advisable or necessary. It is the “business” of the county, through its officers and agents, to see that all the property within the county liable to assessment and taxation, is placed upon the assessment roll, so that the burdens of government may fall in like proportion upon all; and it is a matter of common knowledge, that under our present system of listing and assessing property, it is practically impossible for the assessor to list and assess all the property in his county without some such aid as was to be provided by the contract in question here. There was no attempt by the county court by this contract to usurp or interfere with the duties of the assessor; but, on the other hand, the object was to provide a present-ownership list to assist him in the discharge of the duties of his office, and enable him to list and assess a large amount of real estate which had theretofore escaped taxation, amounting in value, as the record discloses, to over six hundred and fifty thousand dollars. We think therefore the contract in question was such an one as the county had power and authority to make.

2. By section 10 of article XI. of the constitution, it is provided that “no county shall create any debts or liabilities which shall singly or in the aggregate exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion; but the debts of any county at the time this constitution takes effect shall be disregarded in estimating the sum to which such county is *440 limited.” This provision of the constitution has been before this court for construction in two eases. In Grant County v. Lake County, 17 Or. 453 ( 21 Pac. Rep. 447 ), it was held that it did not apply to debts and liabilities imposed upon the county by law, such as the salaries of the officers, the expenses of holding courts, and such other outlays as the law charges upon a county, and which it is powerless to prevent; but that it “only applies to debts and liabilities which a county in its corporate capacity, and as an artificial person, voluntarily creates”; and this construction was again recognized in Wormington v. Pierce, 22 Or. 606 ( 30 Pac. Rep. 450 ). This provision of the constitution was designed to. prevent a county from voluntarily creating debts or liabilities which singly or in the aggregate exceed the sum of five thousand dollars, but has no application to debts or liabilities thrust upon a county by operation of law, and which it can in no way prevent; nor does it apply to debts or liabilities incurred in the suppression of an insurrection or to repel an invasion; nor shall the debts of a county at the time the constitution took effect be included in estimating the amount of its liabilities under this provision of the constitution. Hence, before it can be said that a county has exceeded the constitutional limit of indebtedness, it must appear that the debts have been voluntarily created by the county in its corporate capacity since the constitution took effect, and such debts were not created for the purpose of suppressing an insurrection or repelling an invasion.

3. These necessary facts are not alleged in the complaint in this case. The allegation is that “the county was indebted in the sum of forty thousand dollars, created by tbie county,” but it does not appear whether such indebtedness was voluntarily created, or was thrust upon the county by operation of law, or whether it was incurred in the suppression of an insurrection or to repel an invasion, or whether it was an indebtedness of the county at the time the constitution took effect; and in the *441 absence of such allegations, the complaint does not state a case within the provisions of the constitution, and the demurrer should have been sustained: 18 Am. & Eng. Enc. 502, 570.

The decree must therefore be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.