Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1895-12-30
CAN NOT CONTRACT DEBTS
Important Opinion of Solicitor Gen.
eral-PrOhibitOry Statute Applies
to All County Debts.
CERTIFICATES OF INDEBTEDNESS VOID
obligations" Not Construed as Simply
Sealed Instruments-Money Must
Be in Treasury to Meet Official
Liabilities When Due.

/ Liabilities When Due.
| Appended is an important opinion o
Solicitor General Victory touching tn
limitations placed upon debt contracting
powers of counties:
TERRITORY OF New Mexico,
j Office of Solicitor General,
Santa Fe, N. NJ, Dec. 23, 1895.
Hon. j. Franklin, District Attorney, Chave
and Eddy Counties, Eddy, M. NJ
| Dstyr Sir: lam in receipt of your let
ter dated II 9Th inst, requesting in be
half of the uUa4d of county commission
ers of Eddy county, and yourself, ny
official opinion as to the proper construc
tion to be given section 4, of the con
! gressional act, passed July 30, 1886, en-
titled San act to prohibit the passage OF
local or special laws in the territories O.
the United States, to limit territorial in
debtedness, and for other purposes" ant
especially whether the indebtedness there
declared to be void, if exceeding pei
centum of the assessed valuation of tax
able property within the county, includes
floating Indebtedness or confines itself to
bonds and obligations, and if the word
"obligations" should be construed in its
strict sense of sealed instrument.
The act of congress referred to will be
found on page 504, of the supplement to
the Revised Statutes of the United States,
and section 4, thereof, reads as follows:
"That 20 political or municipal cor
| poration, county or other subdivision,
in any of the territories of the United
States shall ever become indebted in any
manner or for any purpose to any
amount in the aggregate, including ex-
| isting indebtedness, exceeding 4 per
centum on the value of the taxable prop
erty within such corporation, county or
subdivision, to be ascertained by the
last assessment for territorial and county
taxes previous to the incurring of such
| indebtedness; and all bonds or obliga-
| tions in excess Of such amount given by
such corporation shall b., void"
Illinois, Iowa, Indiana and other states,
have constitutional provisions similar to
the foregoing sectior, and to form a
satisfactory conclusion as to the legal
construction to be given the section un-
der consideration we must necessarily
have recourse to the adiudlcations of the
courts of those states, upon their pro-
visions of limitation, and, avaling my
self of their judicial wisdom, shall en-
deavor to advise you as to what CON
ceive to 10 the law applicable to political
and m Nlicipal corporate indebtedness in
this territory, end the statutory limita-
tion th@feof as applied to counties.
In tLs nrst place vha. is the definition
of "indsbtedness? Webster defines sin.
debtedhess," to be "placed in debt; beiLg
under obligation; held to payment or re-
quittal.' Worcester defines it as "The
state of beng in debt; Indictment" and
says it is a modern word, rsputed of
American origin, and not often used by
English writer's, yet is found in the die
tionaries of Knowles and Smart. Bouvisr
defines q debt to be sum Of money due
by certain and express agreement, Bonv.
Law Dict. 1876, while more modern legal
photographer tells us that debts denote
not only the obligation of the debtcr to
pay, but also the right of the creditor to
receive and enforce payment; Rap. & l..
Law Dict. ISL. Other legal authorities
hold indebtedness to be a word of large
meaning, and denoting almost every kind
of pecuniary obligation originating in
contract; Merriman v. Social Hanf. Co.,
~ r. I. ITS. 1t includes liabilities Of
every sort, present and to accrue, Am. &
Eng. Enc. of Law, Vol. 10, p. 800. 1t is
an agreement to pay money when no suit
able provision has been made for the
prompt discharge of the obligation. 1t
covers orders on city treasury, even
for current OK penses, when there are no
funds applicable for their payment, Sack
ett '. New Albany, SO Ind. 478, Valpa-
raiso v. Gardner, 81 Ind. l. 1t includes
not only debts voluntarily contracted,
but every debt of every character, how
ever arising, Allen v. Clark, On. ~ II
Cent. Rep. ~. It embraces not only
debts of record or judgments and debts
by speciality, but also all obligations
arising under simple contract to very
wide extent, and in its popular sense in
cludes all that is due to man under any
form of obligation or promise. Gray vs..
Bennett. 8 Metc. 526. In view of these
citations it can not be doubted but that
the word indebtedness" has we'll set
tied meaning in law, and, in constituting
it with reference to the words "shall not
become indebted" contained in section 4,
of the congressional act, now under con-
sideration, We have only to apply the
principles laid down in the several au
thorities hereinafter cited from the United
L.
Illinois and Indiana. a.
I A debt payable infths f1ture, or pay
able upon contingency or the happen
ing Of some event, such as the rendering
OF service or the delivery of property, as
we'll as debt payable presently and ab-
solutely, is within the constitutional pro-
thibition; and it makes no difference
whether the debt be for current expenses
or for something else. City of Spring
field vs. Edwards, 81 ILL.,, 628. Certificates
issued BY city on which to procure tenn
porary loans, stating that the city owes
the holder specified sum of money, and
promising or directing the treasurer to
pay it at a specified time, or otherwise,
are evidences of indebtedness owing by
the city, and It is not essential to The ex-
lbtCuCo VI u0Ou buuu ~ bHdil oo uuo ~
the time 1t 10 created. Law ct al We. The
People, 81 ILL.,, 1856. When munich
pality shall have reached the limit
prescribed by the constitution, it
is prohibited from making any con-
tract whereby an indebte1nes ia
created, even for the necessary current
expenses in the administration of the
affairs and government of the corpora
tion. Prince W. City Of Quincy, 106, ILL.,,
1888. Mr.. Justice Mulkey, in his opinion
delivered in the last mentioned case, says:
"While the provision OF the constitution
just cited declares in emphatic terms,
that CITY or other munici pality whose
existing indebtedness already exceeds the
constitutional limit az Vas the CASE here