152 (1) KIRK V. HIGH, No. 9154. , [169 (1) KIRK V. HIGH, No. 9154. (2) MITCH . ELL . v. HAMBY, No: 9152. Opinion. delivered June 29, 1925.. 1. E VIDENCEJUDICIAL NOTICE.—It iS a matter Of common knowledge that there is no county in the State which could build a courthouse.or jail sufficient for use such out of revenues for any single year. .2. COUN TIES—LIM IT OF EXPENDITURES.—Under Amendment 11 to the Constitution providing that the fiscal affairs of counties_shall , be conducted on a sound financial basis and • pro_hibiting county officers' from making contracts or allowances in excess of the revenue for the fiscal year, any' payment which a county Inakes for any purpose during the year is part of the expense for that year; and where the total revenues have been appropriated and disbursed, the expenditures must cease;and the officer Who overdraws•does so at his peril. COUNTIES—LIM IT OF EXPENDITURES COURT HOUSES AND JAILS.— Amendment 11, 'prohibiting expenditurei by counties .in 'excess of revenues for the fiscal year, held not to prohibit the building of courthouses and jaiPs by counties because such buildings exceed the yearly revenues in total cost, but to require only that the cost thereof be so apportioned over a term of years that such cost apportioned to each year, together with other governmental expenditure, shall not exceed the yearly revenue. • (1) Appeal from Lonoke Chancery Court, John E. Martineau, Chancellor; affirmed. (2) Appeal from Nevada Chancery Court; C. E. Johnson, Chancellor reversed.
A RK. (1) KIRK V. HIGH, No...9154. 153 Trimble & Trimble, for appellant Kirk. W. J. W avgoner and Chas. A. Walls,. for -appellee Figh. i. . • Dexter Bush, for appellant Mitchell. • .Randolph; P. Hamb y, for appellee . Hamby: SMITH, J. Case NOY 9154 is : the suit 'Of' a' citiien and- taxpayer Of Lonoke County,. wh6, 'for the benefit of himself and all. other taxpayers of 'that county,' flied .a complaint; in . which• he' alleged that the cetunty , judge and three 'other citizens' of the county are the. duly ;qualified commissioners fort the , construction of a- cOurthouse for that county. It was alleged that .. at the regular term of the quorum court of Lonoke County it had been. unanimously. voted to erect a courthouse at a cost riot to exceed. $150,000; the' same to be 'Paid for in . not to exceed twenty annual installments not . exceeding $10,000 in any one -year,. and ..the -sum of $10,000 was . appropriated to be paid- out of the revenues Qf 1924 as the- -first payment. . It was , alleged that ,the quorum" court of the cOunty had pledged..the faith and credit ,of the county to set aside . not to exceed one mill; or so much thereof as was necessary, of the annual five; mill tax.for,courity purposes to meet the .annual; Appropriation to be, made under the terms of the Tesolutiomot the . quorum: court which . directed the county judge; in conjunction .with .the commissioners, to exeente a>coi1-- tract for the eonstruction.of,the courthouse.;-It was fur-, ther alleged_that the_total asso5ed -vo 11-1,, -of the-real-and personal property is ;approximately ten million.'dollars,, and that the five-mill . tax • for county general: purposes would , yield only about $50,000 per year, and the one-mill pledged to be Used for* the.payment of ;the.annual-appro, priation to build the court house will. 'yield only, about $10,000, and, that the icourityi's ,total revenues:; froni other additional sources is only $10,000 ..per . annum: It : was ... further 'alleged: that, notWithstandirig• these facts, . the commissioners proposed to let a. contract .for the construction of a . the: cost' of which iriay
15.4 (1) KIRTi v. HIGH, No. 9154. [169 amount to $150,000, and that the contract will be let unless they are enjoined from so doing. There was a prayer that the commissioners be enjoined from entering into the proposed contract. A demurrer to this complaint was filed and sustained, and the taxpayer has appealed. In case No. 9152 a citizen of Nevada County sought to enjoin the construction of a jail in that county, and the complaint filed by him contains allegations raising the same question as is presented in the Lonoke County case. A demurrer to this complaint was filed and overruled, and the commissioners stood on their. .demurrer and have appealed. The same question is therefore presented in both appeals, and a single opinion will suffice to dispose of both cases. The controlling question in the case is the effect of the adoption of the Eleventh Amendment to the Constitution of the State. This amendment was adopted by the people at the general election of 1924, as declared by the court in the case of Brickhouse v. Hill, 167 Ark. 513: This amendment was adopted as an amendment to section-4 of article 12 of the Constitution, and the • portion thereof relevant to the facts involved in the pending appeals reads as follows: "The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make of authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip warrant or make any allowance in excess of the revenue from all sources for the .current fiscal year ; nor shall any city council, board of aldermen, board of public affairs, or commissioners, of any city of the first or
ARK.] (1) KIRK V. HIGH; No: 9154. 155 second 'class; or any incorporated town, .enter into any contract or make any allowance for any purpose whatsoever, or authorize the issuanee of any contract or warrants, scrip or other evidence of . indebtedness in excess of the revenue for such city or town for the current fiscal year ; nor shall any mayor, city clerk, or recorder, or any other officer or officers, however designated, of any city of the first or second class or incorporated town, ,sign or issue any scrip, warrant or, other certificate of indebtedness in excess of the revenue from all sources for the current fiscal: year." Other portions of the amendment provide :that the counties, cities and incorporated towns of the State may pay their outstanding indebtedness by issuing negotiable bonds and, afier .authorizing that aetion, it is further provided that "Where the annual report bf apy dip or'cofinty iri the State of .ArkanSas shoWS that Serip, warrants or other certificateS of indebtedneis had been issned in excess of the total revenue for that year, the officer or officers' of the county_ or city br incorporated town who authorized, signed of issued' such scriP, warrants of other certificates of indebtedness shall be deemed guilty Of a•inisdenfeanor and, npon conviction thereOf, shall be fined in any sum 'not less than five: hundred dollar§ nor more than ten thousand dollars, and shall be removed from office." - - Does thi g amendment operate to ' Prohibit the coun-_ ties of the State from building eourthousns_ and :jail s where the cost Of such buildings would exceed the i sum that can be appropriated and paid in any one year out of county funds for such purposes? • We think the purposes of this amendthent were, first, to enable the cities, counties and inCorporated towns of the StaW to pay -their outstanding indebtedness by an issue of bonds ; in other words, to get on a Cash haSfs ; and 'the second 'purpose •was to prevent the counties, citieS and towns : of the State from- acenmulating a floating debt which could not be paid out of the total
156 (1) KIRK V. HIGH, No. 9154. [169 revenues of the fiscal year, that is, the obligations payable in a. given year must not :exceed the revenues of that year. But does this mean that courthouses or jails can-' not be erected unless the total cost of the construction can be paid out of the revenues of a single year? We think not. • The rule by which amendments to the Constitution are to be construed was Stated in the case of Hodges v. Dawdy, 104 • Ark. 583, where it was said: "The amendment being tha last expression of the popular will in shaping the -organic law of the State, all provisions Of the Constitution whiah, are necessarily repugnant titereto must, of Course, yield, and all others, reraain in'force: , 'It is simply : fitted Into the existing 'COnstitn-Hon, thessame ai any other amendinent, displacing'only such provisions: as , are found to be inconsistent _with 'it. Like any other new enactment, it is a i fresh drop added to the .yielding mass of the prior law, ; to . be mingled .by interpretation with it.' , State y. Sewell,,45 Ark..387. In the construction of its terms, and in the determination of its scope and effect, ihe courts should follow settled rdles.,of interpretation?' . , t In the application of this rule of construction the court refused to give a literal reading to certain phrases appearing in the amendment which was there construed, and assigned as the reason for so doing that "such; a construdtion leads to an absurdity, and must be rejected for that reason. Stdte v. Smith, 40 Ark. 431." It is a matter of connnon knowledge, known to every citizen, that there is possibly no county in the' State - which could build a, courthouse.sufficient for use as snch and pay for it out of the reVenues of any single year. -This could certainly nOt be done if the county paid the other ordinary and inevitable expenses of government. :The same thingis no doubt true as to many counties in the matter of building jails.
" K• ] (1) KIRK v. HIGH, NO. 9154. 157 These are unusual and extraordinary expenses, They are not incurred annually. Ordinarily, , courthouses and jails answer the purposes for which they were constructed for many years. They are essential to the diScharge of the functions for which , counties are Created. It . is not likely that any county in the State has ever, Or will ever, pay the total cOst of a courthouse out of the revenues of the county for a single Year. • ' • . As r was Said by CHIEF JUSTICE 13UNN in the case of Hilliard V.,Danker, 68 Ark. • 340. "In such an•expensive Matter,as the blinding of a courthouse and jail, it is not of course„ expected; s under ordinary circumstances, •to cover the whole ,amount by the levy for one year, and in: fact, this_ cannot be',done, since,- together with, the ordinary expenses of the county, the levy for erecting these buildings must not exceed in one year the-rate of '6'.mills. The amount - and number of the annual installments neceSsary to ' cover the whole cost of the struCture must be and is left to ihe discretion of the levying court, , to be exercised so as *to accomPlish the result intended in a reasonable time." • This language -was quoted and. approved /in.H:the . • r ecent case Of noffner v. Dowell; 168 Ark. 229; but, as that ease ori cr inated before the adoption of amendment No. 11 all th • at was. there -said is hot applicoble here: - Any :payment-a. connty makes for. any :purpose during any year is a part of the expense of that year,:,and _ , where •the ,tetal revenues have , been appropriated and disbursed, expenditures must cease. The.fiseal officer of • the county, city ;or ' town whose dut3 ., it is fo . draw,: a warrant ypon which the revenues would , be .paid out must cease drawing ,warrants under penalty of a .fine and forfeiture of his office when warrants have been drawnlin a sum suffiCient to exceed,the ,revenues of , a • pa !: r ti • cular year. He, overdraws at his peril. But ,this;;inhibition is :not to be read too literally. A literal reading would prevent- the expenditure of sur-
158 (1) KIRK V. HIGH, No. 9154. [169 plus revenue which might be aceumulated by a county, city or town, to construct a building the cost of which would exceed the revenue of a single year, for the penalty of the statute falls "where the annual report * ' shows that scrip warrants or other certificates of indebtedness had been issued in . excess of . the total revenue for that year." If the ' amendment is read literally, it would be fruitless for.a county, city or town to accUmnlate a surplus to erect a 'building which would 'exceed, with other neces-. sarY expenditures, the revenues of a 'single year, for, if the annUal report which the amendment . requires' shows • that' 'this has been done, the Officer upon whose' warrant the money was' disbursed would forfeit his office and be sUb , ject to ' a 'fine. . We think • the: amendment means just this : that, if a county' , cifY: or town avails itself of the provision aUthorizing tbe :taking . up of . .its outstanding indebt-- edness, it shall . not thereafter , diaw warrants upon the treasurer for an amoimt in excess of ith annual revenues. It must stay out of debt. It means further 'that, if a City, county or town has any outstanding unpaid warrants Which it does not take uP by issuing bonds as authorized by the aniendment,'it not Add to its existing indebtedness by issuing ingre 'warrants than can' be paid out 'of the revenues of the current year. Mit . it does not mean that ' the county without a courthouse or a jail Must dispel: 1Se With these essentials bedMise they cannot be fully paid for in one year. Counties may contract for these buildings and may apportion the cost over a number .of years, but in doing so •the other necesSary expenses of goVernment must ,be taken' into account, and no authoritV be conferred upon the officers charged with the duty of issuing vouchers or warrants to issue them for a sum which will exceed the total reVenues for any single year.
ARK.] (1) KIRK V. HIGH, No. 9154. 159 For instance, if Lonoke County has revenues not exceeding $60,000, and proposes to expend $10,000 a year on a courthouse, then all other expenditures must not- exceed $50,000 per year. . The sum to be paid in a particular year is "-the contract -or -allowance" for that year, and must be shown in the annual report -which the amendment requires the counties, cities and,- towns. to make, and this- contract or allowance must riot, with all other contracts or allowarices.payable that year, be "in exceSs of the revenues from. all sources for -the fiscal, year:in which said contract or allowance is made." • . But, subject to this' limitation as to Payment, we do not think the ,amendment requires counties having: nd Courthouses. or jails to -attempt tO function without them, , anct the counties .may therefore contract for their construction, provided no obligation is ineurred *to pay:. a sum of money exceeding—in addition to Other- -expenditures *---the total revenues of *the 'year- in which- a-particular payment is to be made. * . It follows, from what we have said,- that the decree in .the Lonoke County case will be' affirmed, and 'the- one in the Nevada County case will be reversed. The CHTEF JUSTICE dissents, and MR. JUSTICE . :HART 66ncurs. • . • * • • • ILiST, J. (concurring). It haS been aptly , said that 8tate . Constitutions are framed for the very purPoSe of adaptation to the progress of the times and * to be -a, general, not special, riil f action adrestraint:: . While it is true that in interpreting -a. Constitution it is to be read as it is written, still the Constitution and the. ,amendments thereto must be. so interpreted as to give effect to every part thereof and leave euch part sonJe office to perform. It is a yrimary rule of construction that the Constitution must be considered as a whole,..and to get at the meaning of , any. part of it, we must . read , it in the light of other provisions relating to the. same sub; ject. Little Rock v. North Little Rock, 72 Ark. 195, and State v. Clay County, 93 Ark. 228
160 .(1) KniK v: Mon; No.. 9154 .. [169. No interpretation of the amendment under consideration in this case should be allowed which would conflict with any other provision of the Constitution unless it:is absolutely .necessary in •order to : give effect to: the amendment. On the other hand; such construction should be given as will, if 'posSible leave . all the other provisions of 'the .C'onstitution unimpaired and in force. Skite T. Donaghey, 106 Ark. .56-. •• In People v. Potter, 47' N Y. 375, the -idea is clearly expressed-by Judge Folger as follows : `.` The' intent Of the. lawMaker is to he sougtht for: When it is discoNiered, it. is' to prevail over the literal meaning-Of -the wordS of any part of the la:W. , , .Andthis intent is to 'be,discovered,' not alone. by Considering the words of any part, •-bnt by ascertaining •the general purpose of •he whole, and..by considering the evil which .existed calling for the•new enactthent,. •and .• the • remedY whieh 'isi4ought to' : be applied.. And : when thaintent of the-whole is discovered; no part is to be so . construed as that the general ;purpose shall . he thwarted; but all is to,.be made to.. conform to reason and good discretion. And the same;:rules apply to the construction. of a .Constitution as -to Oat ; of a statute law." • The same general rule was 'also clearly and concisely stated by Mr. Justice WALKER in State v. Scott, 9 krk. 270, as follows `.` In determining. the' intentions •f L the framer's .of the amendment, we MUSt keeP in view 'the ConstitUtion , as it stood at the tinie the amendrnent Was made, .the evil to . he remedied' by the ainendnient, , 'and' the amendment Propo•sed, by which the' evil' is ' to be remedied. No interpretation should be allowed which would conflict With any other provision of the-Constitti-tion, or which iS not abSointeiy neceSsary in order to give effect to the proposed 'ame•ndinent.' On the 'contrary; Such construction should be giveh ais will, : if possible, .leave . all the other proYiSions in the' COnstitution unimL paired'and in full force." :•. • ' The above. waS 'quoted and approved in' Fe'rrell . - v. Keel, 105 Ark. 380. - -
ARK.] (1) KIRK V. Mon, .No. :9154. 161 In the application of these established rules of construction it will be remembered that article 13 of our Constitution is devoted to counties, county seats, and county lines. Counties are civil divisions of the State for political and judicial purposes, and are its auxiliarieS and instrumentalities in the administration of its government. Cole v. White County, 32 Ark. 45 and cases cited: Throughout the Constitution, counties are recognized in various ways as civil divisions of the State for political and judicial purposes. 'Counties are Made the units of government for 'legislative, administrative- and- judicial • 'purposes. Court houses and jails are absolutely necessary in the " administration of the State governnient, and I do not think that the amendment under consideration . was designed to take away the poWers in tfie respect to repairing and erecting courthouses and jails, Which - Were possessed before its' adoption. I think such an interpretation of- the amendment would be too narrow and literal, and would tend to defeat the verY purposes which it was designed to effectuate. Therefore . , I think that the power to construct courthonses and jails is unchanged by the amendment. MCCULLOCH, C. J., (dissenting). I ain not sure whether the opinion of the majority 'should be construed to mean that. the . construction of conrthouses and jails is exempt from the ' restriCtions found in amendment No. 11,s or whether the words, "mniza or authorized any coil-tract or make any allowance," are held 'to be . synony- mous with the wordS, "sign or issue any scrip, warrant or make any- allOwance,"-"so "as merely to 'prohibit the issnance • or the 'making of allowances. There is reference, throughout the 'opinion to the construction of court houses and jails, as " if those expenses were to be treated as exempt from the operation of amendment No. 11. But near the conclusion of the ()Pinion the court seems to treat the different words of restriction : as synonymous, and to hold that the restriction applies only to the making
162 .(1) KIRK •v. Haul, No.. 9154. [169 of •allowances: or issuance of Warrants 'during : A 'given fiscalyear, land not to the niaking of contracts :fol . . pay-ments-extendingover A series of years. I do , not .agree to either of those. theories, for I can find in the constitutional amendment no exemption . whatever -of . any kind.; of expense, And. it seems . to:ine that, the language.,is jtoo hxoad and . emphatic to restrict the prohibition-to the mere allw, ance, of claims And , the issuance of warrants,thereop-The language not only fads to_wention any, exemptions: fyom its ° operations; but op the ,•contrary. it contains words,of great emphasis 'in... applying the -restriction to . contracts or allowances "for any purpose whatever," .showing that . the . framers of . the amendineut intended no exemption. • if, forsooth, there, are any exemptions, . scarcely see: how they • can . be limited to . the cost of constructing court , ,houses and jails, for .there, are . other .public jigs, in , counties and. municipalities Nhieh, are qusi •. as essential to orderly . gov . ernm •• ent anci-to the: proteCtion of the h • ealth and welfare of" the people. . Othe • r . eme , rgen:- pies pay . arise which .are just. , as .ijnportant as ,the. con; struction . .of court houses and jails. , Then why should there be declared . an i.plied , exemption...as Jo court houses and jails? There is not a word,anywhere in, the Constitution with reference., to the .construction ,either of COurt hOnSes essentiAl tboSe.build- ingS are to governMent, • the conStitiction and maintenance ortheia is treated, by Silence on the subject; merely tbe sAnib as other expenSes. . . „The ease of Hiiliard v. Bunker 68, Ark. 340 (cited..by the Jnajority and which merely followed the decision .in Durritt . .v. Buxton, 63 .. A.rk., .397), involved the. construction •Of statutes, to determine . whether A. general statute repealed ; a prior' special one f : and, the dec . isiou,has no hearing,. I. think, on the interpretation of, amendment The Constitution of 1874 ' y estricted i taxation,,in • ounties• to one-half of. one per cent. "for Mpurposes. Jf, the cost of construction- Of court houses and jails is
ARK.] (1) KIRK V. HIGH, No. 9154. 163 exempt from the operation of amendment . No. 11, .then it can be urged with• equal force that those extraordinary expenses of . government are, •exempt front the,,operatio . n-of the constitutional. restriction :as to the amount of taxes.;, and,yet never once during the,fifty years since the adoption of , the •. Constitution of 1 . 87,4 . and anddst all the'difficulties, encounteredi since ,then in the .construction of, pub, lie buildings by.counties; has,any•one 'appeared with spirit. o .bold . •as..to make .any such , contention.. .The. counties have all : built : court :houses , 'and jails without violating the Constitution with, respect to the, limit -of taxation.. .Turning to-the. pther thought expressed in . the opinion ,.of the,.majority, , namely,. that . the .,language.,of.,the. amendment permitS the making of- : contracts for . the :eon-struction , of cothtbouses and-jails; the..coSt is spread! over a term of years . 'so tas to •liMit the tbtal -expense each year 0, , thd,rdvenues thereof, it seems-. to 'me: -that the-pbsitionof: theAnajority is equally' -untenable. -If :con-. tracts may thus be . anade for the -cOn .struction . Of •cOurt hotisea • and, , jails, , , why. ,may not, :any other' •contrabt•Sor, legitimate expenses be • made, regardless , of cost, :if i0 spreact over 'a :term of years ? • If,: in •otber,word , s,) the' prohibition , eAendS only to' the allowance of claims-for: the • issuance of : warrants; 'why cannot such: a contra:et be made•for any other legitimate exPensb? _ There is'no . distinction. , as IA : lave:already:said, to -be 'found' in the-lan-: guage of: tbe. -amendment. . If-that 'interpretation , of-the contract .is true, Alen': the. aounty couirt or • tOwh- ,counclI Can,make a.s . Jnany contracts as .they , see fit rfor future payments; thus - incuning .unlimited -Obligations,' if -they do . not.make '0 , HoWanees or issue warrants in . exceSs of the' revenues for !the fiscal year:7 .With all -res p ect for the. op inion Pf my brethren; I cannOt bring myself to believe' that the- framers of .the • eonstitution ,intended any sucb result.. • It is contrary, I• think,,ito the plaine'St sort` ,of language nsed. That interpretation_ eliminates , the'l.vbrd ' " • entirely from the amendment and gives ,no. forpe'pr meaning . to it ivhatever: see, Do .escape ' from
164 (1) MIRK V. HIGH, No: 9154. [169 the conclusion that the language of the amendment plainly means just what it says—that no • contract nor any: allowances nor any issuance of Warrants shall be made during the fiscal year in excess of the revenues for that year. It means that • counties and municipalities that are to be lifted out of debt by . the provisions of this amendment must stay out of . debt— Must not* incur indebtedness for any puirpose whatever in excess of the revenues fer the fiscal year. Now, a valid contract creates an obligation—a ,. debt—no matter when' it is payable. The debt is not paid by postponement. It still remains an obligation. Let us consider for a moment the illustration made by the majority in the . 'conciusion of the ppinion. When Lonoke County turns into the second fisCal year after Making the contract for the constrUction of the . court • house, the contractor immediately presents to the county court his. claim for the second payment of $10,000. He has 'a legal right to do that under the opinion of the majority, and the connty court is bound toissue him a warrant, 'regardless of other anticfpated expenses. If the contraCt thus made is valid: the' connty court can be'compelled to allow the claim and issue a Warrant therefor..' The result will be that the restriction is not placed upon the • allowance for the cost of the court house, but it restricts the amount of- general expenses of the county, regardlesS of• the necess.ities which . may subsequently arise. In Other wordS, under the restriction made by the majority in the' opinion, the' countY cannot expend more than • $50,000,, regardless of necessities. It is thus seen that this contract for futurc payment su p plants the 'payment of ordinary expenses', and, after all, leaves the county in debt. But the illustration made by the majority is not* apt for the reason that, if there is no Constitutional restriction 'upon the making of a contract for future payments, Then it is within the power of the county coUrt to make any' contrad for future p ayment regardless of amount, and the only restriction upon the alloWance of the
ARK.] (1) ' KIRK .V. HIGH, No.. 9154. 165 claim in future years is the total amount . . of revenues for that fiscal year. It is therefore within the poWer of the county court to burden the county for debts payable fnture. which Weuld exclude all other necess . ary .
expenses of the county. It cannot be determined or even estimated, until the assesSments 'are made and taxeS. leVied, what the revenues for a fiscal year will he . ; •that is Tonly determined-by an ascertainment of the . total aniount of the assessments when the ciuorum court meets, and there • is a levy of taxes to meet the appropriation: How can it be known in future years what the amount of. the: revenues is . gOing to be'? His thus seen that this` interpretatiOn of the langnage of the 'Constitution involVes us in a mass of uncertainty, which Clearly demonstrates to my mind that the franiers of the amendment never intended any such result, but, on the contrary, theY used plain language which . means just what it says.. • • r. The majority . seek JtstificatiOn for a' departure from, .literal -application . 'of the language of the amendment. by saying . that "it would •prevent the expenditure of sur-' plus:revenue by a - county,- city Or town to construet a building which wonld exceed the revenue of asingle year." I scarcely think that any one . would Put such a narrew construction as that . on the language so as to prohibit the. spending • a • 4ccuhRitatod . • surplus. It requires . ne' Strained-interpretation to say that the trin. "revenne" from"all sourceS for the fiscal year," is-broad enciugh to, inelude . .acenniulated---Surphis.- By-such-:aceuniulations,; pnblic buildings may be constructed and paid for witheut r4akillg a 'contract in ekcess of revenues for the fiscal' year,. and . thiS 'method woUld, in the language *of ' the amendment, keep the counties 'on a " . `sound financial bag s "—that is' to . 807 . , ont of debt. Reflection' upOn the events of the past the finan-. Cialhistoiy for the counties and MunicipalitieS Of the State —makes plain what was in the Minds of the' frathers Of amendment No..11 . and the . people who • voted , upbh it. When the Constitution of 1874 was framed, most of:the
166 (1) KIRK v. HIGH, No: .9154. [169 counties of the !State and many of the municipalitieS were heavily•in debt,and scrip was at a discount..This prompted the framers of 'the; . .Constitution to put in :a provision', permitting counties, and. municipalitieS• to issue , interest; bearing •onds and to levy an additional rate of - taxa-. tionytO .cOver , indebtedness • which existed "at the, tim& of the: adoptiOn of the; Constitution: . • But it •was, ithoukht• necessary, in- order to; keep•ithe. coinities out of debt,i to . .put in • a. . provision 'absolutely 'prohibiting* : counties, and: Municipalities from: issuing • interest-ibearing dences .'of debt in the future.. It was doubtless :in itHe Minds , of the framers 'of the Constitution that the • counties; and 'cities .would keep out of debt. This proved' to be a vain hope. They did'not keep . out . of debt and it was• fOund that there was no provision in the Constitution to prevent. thein from -going : in debt. Notwithstanding the -inhibition. . against issuing interest-bearin. evidences . of !- debt, counties and . municipalities found .a,-way to :float future exiaences of indebtedness:without; there • appearing -upon• the- face of ' the .obligations. -a- provision, for; the payment of interest.. Many- ,of -.the, counties; again got. heavily debt,. well as, the larger eities•,of the Stato, and there' has ; been, an- urgent demand for -the enactment of a constitutional amendment . permitting ,.counties .and issue. bonds, . The people in subsequent elections. demonstrated ;their , 'unwillingness to 'confer upon. counties ;and. municipalities :a, continuing ,power. - to -,issue bonds. , but, , at; last by amendment ,No. 11 they conferxed authority; to; issue ;bonds and levy. additional taxes- for the- purpose .of paying. indebtedness existing at the time of the -adoption of: the . amendment. It , was -intended . to carefully, guard the i situation by not only.prphibiting counties and:cities. and towns from issuing more;scripthan could be absorbed' • by , the revenues, fog a : given ; fiscal year, bnt, they put in this, „proyision 'prohibiting ;contracts. which would incur indebtedness, in the future. ,.; . • : It, 'seems to; me that. the interpretation now placed. upon ...the language of the , amendment thwarts the
exPressed will. of the people' . who Trained the 'amendment. and s. adopted :it. The 'decision of' the majority sap---though I 'say it with great .respect—Ifounded, upon the, doctrine of neeessities, that is to. say, whati app,ears. them to be the neeessities:.of the , sitaation.„It is another verification,of ,the maxim. that ; 'neces§ity hath no;law„',"!
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.