Hamilton v. Board of County Commissioners

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In 1889 a county high school was established in Fergus county and located at Lewistown. Subsequently each of eleven school districts outside the Lewistown district instituted a high school course in its district school, and has since maintained what is denominated a district high school. Early in 1917 the trustees of the county high school requested the board of county commissioners to call an election, and to submit the question whether bonds in the sum of $100,000 should be issued to provide funds necessary to erect an addition to the county high school building. The election was held on April 28; the bonds were authorized and subsequently sold, but before they were delivered this suit was instituted to enjoin their delivery. From a judgment dismissing the complaint and from an order dissolving a temporary injunction, plaintiff appealed. It is the *305 contention of appellant that the county commissioners proceeded contrary to law in submitting the bond question.

Chapter 167, Laws of 1917, provides among other things: “The question of the issuance of such bonds shall be submitted to the electors only who reside outside of such district or districts maintaining high schools.” If this is a valid statute, the board ignored the law in submitting the question to the qualified electors of the entire county, instead of limiting it to those only who resided outside the eleven districts in each of which there is a district high school.

In 1913 the legislature enacted a complete code of laws “for the establishment and maintenance of a general, uniform, and thorough system of public free schools” in this state. (Chap. 76, Laws 1913.) Among other things it provided for elementary schools and for county high schools. By section 2109 of the School Code, a county in which a county high school has been established is authorized to issue county bonds to provide funds to purchase or construct necessary buildings for such county high school. By Chapter 167 above, this section 2109 was amended so as to give it a somewhat broader application, but otherwise the provisions of the original section and the amended section are substantially the same.

The determination of this controversy depends primarily upon the answer to the inquiry, Are the bonds authorized by the election held April 28 county bonds which evidence an indebtedness or liability of the entire county ? If they are county bonds, then the question whether they should be issued must, have been submitted to the qualified electors of the entire county, for the purpose for which they were to be issued is a single purpose within the meaning of that term as employed in the Constitution. Section 5, Article XIII, of the Constitution, reáds as follows: “ No county shall incur any indebtedness or liability for any single purpose to an amount exceeding ten thousand dollars ($10,000) without the approval of a majority of the electors thereof, voting at an election to be provided by law.” This language is susceptible of but one meaning. It requires *306 the approval of a majority of the electors of the entire county who vote at the election to authorize an issue of county bonds in an amount exceeding $10,000 for any single purpose. A [1, 2] county bond is one issued by the county, and to the payment of which the- full faith and credit of the entire county are pledged. The correctness of this definition was recognized in Edwards v. Lewis and Clark County, 53 Mont. 359, 165 Pac. 297 . A bond which imposes an obligation upon a district less than an entire county cannot be denominated a county bond in any proper.sense of the term.

If these bonds are not county bonds, then the legislators failed to express their intention and failed to make any valid provision for their payment.

(a) Throughout the School Code wherever county high school bonds are mentioned, they are referred to as county bonds. For instance, by section 2109, and by the same section as amended, the question to be submitted is whether “county bonds” shall be issued. Section 2110 of the same Code, referring to bonds issued for county high school purposes, provides: “Said bonds shall be paid, principal and interest, in the manner provided for the payment of other county bonds.”

(b) The only provision for the payment of county high school bonds is found in paragraph 2 of section 2109 of the School Code, and in the corresponding paragraph of the same section as amended by Chapter 167 above. The county commissioners are commanded to levy a tax each year “upon the taxable property in the county for the interest and redemption of said bonds”; that is to say, they must provide by taxation for the payment of the interest each year, and ultimately they must provide by the same means for a sinking fund to discharge the principal at maturity. If the statute concluded with this paragraph, it would not be open to the criticism made upon it; but paragraph 3 of the original section, and the corresponding paragraph in the same section in its amended form, provides: “The limitations on the indebtedness to be created by the issuance of bonds in such cases, and the method of levy, assessment and *307 collection of taxes for the payment of bonds so issued, herein-above set forth, shall apply only to so much of the said county as shall not be included in the school district or school districts which shall continue to maintain district high schools as herein provided.” As applied to the facts of this particular case, that paragraph would read as follows: The county commissioners shall annually levy a tax for the interest and redemption of said bonds only upon the taxable property in the county outside the limits of the eleven districts, in each of which a district high school is maintained.

It is conceded by both parties to this litigation that this provision is unconstitutional. Section 11, Article XII, of the state Constitution, provides: ‘ ‘ Taxes shall be levied and collected by general laws and for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” The territorial limits of the authority of the board of county commissioners are coextensive with the territorial limits of the county itself, and any tax levied by that board must be uniform upon the same class of subjects throughout the county. In so far as the statute directs that the tax be levied upon property in a portion of the county only, it is invalid.

We cannot assume that it was the intention of the legislature to provide for the issuance of county high school bonds and at the same time make no provision for their payment. Section 8, Article XII, of the Constitution, declares that private property shall not be taken or sold for the corporate debts of a public corporation, but the legislature shall provide by law for the payment thereof by taxation of all private property, not exempt, within the limits of the territory over which such corporation has authority. Every consideration leads to the conclusion that these bonds are county bonds evidencing an indebtedness and liability of the entire county, to the payment of which the full faith and credit of the county as a unit are pledged; that paragraph 2 of section 2109 was intended to provide adequate means for their payment, and that the provisions in *308 paragraph 3 of the section quoted above are unconstitutional and void.

Paragraph 3 cannot be reconciled with other provisions of the School Code. For instance, section 2104 provides: “All eligible pupils in the county are entitled to attend the county high school, and it shall be the duty of the board to provide accommodations for such pupils.” In other words, any eligible pupil in any one of the eleven districts which maintains a district high school is entitled to attend the county high school, and the trustees are required to provide accommodations for such as do attend; but if paragraph 3 of section 2109 and section 2112 be upheld, the property in those eleven districts is entirely exempt from taxation to provide the accommodations at the county high school, or defray the expense of maintaining such school. Furthermore, the provisions of section 2112 are contradictory of the provisions of paragraph 3. As already observed, paragraph 3 seeks to exempt from taxation for county high school bonding purposes all property of the district which maintains a district high school; whereas section 2112 provides: “When such district high school has been fully established as an accredited high school, such district shall thereafter be exempt from further levy by the county high school board, except for bonded indebtedness for free county high school purposes.”

Is it possible, then, to eliminate the invalid provisions from [3] paragraph 3 without destroying the entire statute? The rule applicable in such cases is stated in Dunn v. City of Great Falls, 13 Mont. 58 , 31 Pac. 1017 , as follows: “If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.” (Hill v. Rae, 52 Mont. 378 , L. R. A. 1917A, 495, 158 Pac. 826 ; State ex rel. Evans v. Stewart, 53 Mont. 18 , 161 Pac. 309 .)

There cannot be any difficulty experienced in executing the [4] remaining portion of the statute with these objectionable provisions eliminated. The enactment will still be complete in *309 itself, and the rejection of the invalid portion will not necessarily destroy the plan for district high schools. It does not appear to us that the several portions of the Act are so closely related that one would not have been enacted without the others, or that the approval of the invalid portions was an inducement to the enactment of the others. Our conclusion is that the unconstitutional portions of paragraph 3 may be disregarded entirely without impairing the remaining provisions of the statute.

There is not any merit in the contention that the commissioners should have proceeded under paragraph 3 of section 2109 even though it is unconstitutional. An unconstitutional statute [5] is void, and a void thing is as nothing. A void statute is not a law. It imposes no duty, confers no authority, affords no protection, and no one is bound to observe it. In contemplation of law it is as inoperative as though it had never been passed. The county commissioners properly disregarded the provisions of paragraph 3 and proceeded under paragraph 2 of section 2109 as amended.

The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.