The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1884-05-09
THE COURT HOUSE CASE.
HEARING OF THE AGREED CASE BY
JUDGE GALBRAITH.
A Long and Interesting Argument.

A Long and Interesting Argument.
Probably the most interesting legal argu- !
ment that has taken place in our courts for
some time was that which began on Wcdnes- |
day afternoon, on the power Of the Board Of
County Commissioners to build court house
by issuing county warrants, and without sub |
hitting the question to vote Of the people.
We have already presented to our readers
the statement Of facts agreed upon between
Mr.. Morgan Evans On the one hand and the
Commissioners upon the other, and submit |
ted to the District Court for its decision, in
lieu Of the ordinary form Of action. The
question presented by the stipulation Is sim
ply one of law. w. W. Dixon appeared for
Mr. Evans, and w. Y. Pemberton, District
Attorney and ez-obfcio the legal adviser of
the Commissioners, together with Messrs.
Robinson s. Stapleton, appeared for the
defense.
The question turned upon the construction
to be given TO the third and fourth subdivi-
sions Of sections 34S and $40 of the General
Laws. These provisions Of the statute are
As follows:
each county shall have power at any meet
Third, To build and keep in repair county
buildings, and cause the same to be insured
in the name of the county treasurer for the
benefit Of the county, and, In case there be
no county buildings, to provide suitable
rooms for county purposes.
Fourth, Apportion and order the levying
OF taxes, rs provided by law, and to borrow
money upon the credit Of the county, sum
ffirtnp f for N arectiau nf comfy huild-
ings or to meet the current expenses Of the
county, in case Of deficit in the county
revenue.
sioners shall not borrow money for the pur-
pose specified in the fourth subdivision OF
section 348 Of this article, without having
FIRST submitted the question of such loan to
vote Of the electors Of the county.
Mr. Dixon opened the argument, taking
the position that the Commissioners had not
the power to incur Indebtedness in order to
build court house, unless the question was
first submitted to vote Of the people. His
argument, briefly stated, was In substance,
that the power conferred by subdivision
third is limited by the fourth subdivision,
and by section $40, and that the statute does
not say the Commissioners can 60 in debt,
but that when there is no money on hand, \
IL ploNihCo W low w seioS
money; that 1t was a rule Of construction that
statute of this kind should be construed
strictly, and where there is . doubt, the
doubt must be resolved in favor Of the peo-
pie and against the municipality. When
power is given and a mode is provided for
carrying out the power, that mode is the
measure of the power. Where power Is
| conferred and general mode is provided
| for carrying that power into effect, that mode
must be pursued; when particular course is
pointed out to carry out power, that course
must be followed. That the acts must be
construed together; that power being given
to build court house, and then mode pro-
vided for borrowing money for that purpose,
to wit, by submitting the question to vote
Of the people, that that mode must be pur-
sued. That the Commissioners are doing
indirectly what they are prohibited from
doing directly, and IL they are permitted to
do indirectly what they are prohibited from
doing directly, It would strip the people Of
| the very protection intended by the legisla-
| ture, and that there would be no limit to the
| Indebtedness which they might incur.
| Mr.. Dixon was followed by Mr.. Pemberton,
who claimed that the law provided two ways
for building court house, namely, by issu
ing warrants, or, after submitting the ques-
ton to vote of the people, by issuing bonds.
That there was difference between going
in debt and borrowing money, and that it
was only when borrowing money that the
question had to be submitted to the people,
and that municipal corporation for legiti-
mats and proper purpose might always 60 in
debt That unless 1t is positively enjoiued
upon the Commissioners by the law that they
submit the question to a vote Of the people,
that they would not have to do SC. That 1t
was only when the Commissioners desire to
| borrow money upon the credit Of the county
that they must submit the question to vote
of tho people, and that if when they under
took to build court house 1t was necessary
to submit the question to vote Of the peo
pie, then the third subdivision was abse
| lutely useless.
Mr.. Stapleton devoted the principal part
of his argument to showing that the authori-
ties cited by Mr.. Dixon were not in point.
He then argued that there Is distinction be-
tween building on the credit of the county
and borrowing money on the credit Of the
county, and that the power to build by issu-
ing warrants is given by subdivision three
aud BY the general powers conferred upon
the Commissioners, and it was only whom
they borrowed money that vote Of the peo-
pie was required. But the point which he
pressed with most sarnestness was, that IL
the position assumed by the plaintiff, that
these acts must all be taken and construed
together were true, then the Commissioners
could not issue warrants for any ordinary in
debtedness in case Of deficit In the county
revenue, for the fourth subdivision contains
this language borrow money upon the
credit of the county, a sufficient sum for the
erection of county buildings, or to meet the
current expenses Of the county in case Of defcit
IN the county revenue"
Mr. Robinson, closing the argument for the
defense, contended that the statute relative
to submitting the question Of borrowing
money to a vote of the people is not restric-
tive; that it is but one of the means provided
for erecting county buildings; that under the
general powers conferred upon the Commits
siouers to do all things necessary to carry on
the county government and to erect county
buildings, 1t followed as common law right
that they had the power to use the revenues
of the county, and unless the clause relative
to borrowing money and submitting 1t to a
vote is negative or positi vely prohibitivs OF
any other means, then the two methods OF
raising money to build are cumulative, and
the common law right Is not taken away, and
they have the right to adopt either course
That IL the theory OF Mr.. Dixon, that the
Commissioners could not build court house
by issuing warrants, was true, then the stat.
utes would lead to absurd results, for pursu
ing the same theory the Commissioners