*468Peremptory writ issued May 17, 1917.
.On the Merits.
(165 Pae. 571.)
In Banc. Statement by
Mr. Justice Harris.The twenty-ninth legislative assembly passed two proposed laws and at the same time, under the authority of Article IV, Section 1 of the state Constitution, referred them to the people for approval or rejection. The legislature also proposed five amendments to the state Constitution, and, pursuant to Article XVII, Section 1 of the organic act, these proposed amendments were ordered submitted to the people for their approval or disapproval. Chapter 422, Laws 1917, directs that a special election be held on June 4, 1917, in all the voting precincts of the state, and that the two proposed laws and the five proposed amendments shall be submitted to the legal voters for their approval or rejection at such special election.
The constituted authorities of Curry County announced that they would not obey the mandate of the legislature, and that they would not take any steps towards holding an election in Curry County. Hpon the petition of James "Withycombe, as Gi-ovemor of Oregon, an alternative writ of mandamus was issued out of this court commanding the clerk, sheriff, county judge and commissioners of Curry County to perform all the duties imposed upon them by the laws regulating elections, or to show cause for any failure on their part.
The defendants demurred to the alternative writ, but the demurrer was overruled for reasons expressed in an opinion by Mr. Chief Justice McBride. The county officials then answered by admitting that they
*469“have refused and do now refuse to .do the things or perform the acts specified and set forth in the general election laws of Oregon to he done and performed by the respective county officers with respect to giving notice of and holding elections with reference to the election provided in said Chapter 422, within Curry County, or to do or perform any other act or thing with respect to preparing for, giving notice of, or holding any election within said Curry County, Oregon, on the 4th day of June, 1917. ’ ’
The answer contains three further and separate defenses ; and for the purpose of supporting these separate defenses the defendants relate the facts concerning the budget and the tax levy for 1917, the present indebtedness, and the probable expense of holding an election. The petitioner demurred to the answer. After hearing the arguments of counsel, we rendered an oral decision sustaining the demurrer and directing the issuance of a peremptory writ of mandamus ordering the defendants to hold the election; and this written opinion is prepared for the purpose of complying with a requirement of the Constitution. The parties have supplemented the writ and answer by a written stipulation giving detailed information concerning the items in the budget, the levy for 1917, and the character of the outstanding indebtedness. The answer expressly admits all the facts averred in the writ; the demurrer to the answer admits the facts alleged in that pleading; by the written stipulation, the parties added to the facts related in the writ and answer; and therefore the controversy was presented upon an undisputed statement of facts.
In November, 1916, an itemized estimate of the expenses proposed to be incurred during the year 1917 was made in full compliance with Chapter 234, Laws 1913, commonly known as the budget law. The budget *470contains estimates for the salaries to be paid to the several connty officers. The estimated cost of the Connty Court is $1,300, of the. Circuit Court $1,500, of the Justice Court $700, of boohs, stationery, postage, telephone, express and freight for all offices $1,500, of water, fuel, lights, repairs and furniture for all offices and of new vaults for treasurer’s office $800, of board of prisoners $400, of medical attendance, clothing and board for the poor, $700, of auditing county boohs $175, of bounties on wild animals $1,000, of widows’ pensions $400, of advertising and printing $700, of interest on warrant indebtedness $4,000, and of insane $100. The budget also includes estimates for bridges, roads and schools. However, no provision was made for election expenses for the reason that the next regular election does not occur until 1918. According to the written stipulation a tax levy was made on December 29, 1916, as follows: “For state tax 2.3 mills; county tax, general 4.1 mills; school purpose 1.6 mills; road and bridges 7 mills.” The county owes $5,000 for debts contracted pursuant to state laws and incurred prior to November 7,1916, when Section 11 was added to Article XI of the Constitution. The tax levy for 1917 was made in accordance with the budget for that year, and, exclusive of state taxes, the levy will, produce $61,120. It will cost $1,200 to hold an election in Curry County. If during 19.17 the county expends the full amounts estimated for the several items mentioned in the budget and if the connty also incurs a debt of $1,200 for holding an election, the total indebtedness will exceed $5,000; but this conclusion rests on the assumption that the county has no income except from the tax levy made in December, 1916.
Peremptory Writ Issued.
*471For petitioner, Mr. James Withycombe, Governor, there was a brief with oral arguments by Mr. George M. Brown, Attorney General, and Mr. Isaac H. Van Winkle.
For defendants there was a brief with oral arguments by Mr. Samuel M. Endicott and Mr. Walter G. Winslow.
Mr. Justice Harrisdelivered the opinion of the court.
The officials of Curry County offer three excuses for their refusal to prepare for holding the special election. The first excuse arises out of the fact that the budget for 1917 makes no provision for an election; the second proceeds upon the theory that the expense of the election will increase the indebtedness of the county beyond the maximum limit fixed by Article XI, Section 11 of the Constitution; and the third is predicated upon the contention that the tax levy for 1918 will necessarily be raised over and above the increase permitted by Article XI, Section 11 of the organic act. In brief, the defendants argue that there is no election fund available to pay the cost of the election; that the expense of the election will increase the indebtedness beyond the limit fixed by the Constitution; and that to raise the money to pay the expense of the election will require a levy for 1918 in excess of the limit allowed by the Constitution. Since the defenses interposed by the defendants grow out of the budget law and Sections 10 and 11 of Article XI of the Constitution, it will be appropriate first to call attention to the statute and the Constitution.
The budget law requires the County Court to make an estimate of the amount of money proposed to be *472raised by taxation for the ensuing year. The statute directs that the estimate shall be fully itemized, showing under separate heads the amount required for each department of county government, county office, each county improvement, building, roads, bridges and
“shall contain a full and complete disclosure of the contemplated expenditures from the money or moneys proposed to be raised by taxation, showing the amount of each public expense.”
The estimates and the tax proposed to be levied must be published together with a notice of the time and place at which the taxpayers can discuss the budget and proposed tax with the County Court. After the hearing is had, the County Court is directed to declare the amount of taxes to be raised and to make a levy sufficient to raise the necessary taxes,
“and no greater tax than that so entered upon the record shall be levied by the authority proposing such tax for the purpose indicated or collected, and thereafter no greater expenditure of public moneys shall be made for any specific purpose than the amount so estimated and 10 per cent thereof”: Chapter 234, Laws 1913.
Article XI, Section 10 of the Constitution originally read thus:
“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 limited.”
At the regular general election held on November 8, 1910, this section of the Constitution was amended to read as follows:
*473“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, or to build permanent roads within the county, but debts for permanent roads shall be incurred only on approval of a majority of those voting on the question”: Laws 1911, p. 11.
At the next regular general biennial election held on November 5, 1912, the section was again amended and it now appears thus:
“No county shall create any debts or liabilities which shall singly or in the aggregate with previous debts or liabilities exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion or to build and maintain permanent roads within the county; and debts for permanent roads shall be incurred only on approval of a majority of those voting on the question, and shall not either singly or in the aggregate with previous debts and liabilities incurred for that purpose exceed two per cent of the assessed valuation of all the property in the county”: Laws 1913, p. 9.
A new section, designated as Section 11 of Article XI, wás added to the Constitution at the election held on November 7,1916, and it is here set out in full:
“Unless specifically authorized by a majority of the legal voters voting upon the question neither the state nor any county, municipality, district or body to which the power to levy a tax shall have been delegated shall in any year so exercise that power as to raise a greater amount of revenue for purposes other than the payment of bonded indebtedness or interest thereon than the total amount levied by it in the year immediately preceding for purposes other than the payment of bonded indebtedness or interest thereon plus six per centum thereof; provided, whenever any new county, municipality or other taxing district shall be created and shall include in whole or in part property theretofore included in another county, like municipality or *474other taxing district, no greater amount of taxes shall he levied in the first year by either the old or the new county, municipality or other taxing district upon any property included therein than the amount levied thereon in the preceding year by the county, municipality or district in which it was then included plus six per centum thereof; provided further, that the amount of any increase in levy specifically authorized by the legal voters of the state, or of a county, municipality, or other district, shall be excluded in determining the amount of taxes which may be levied in any subsequent year.
“The prohibition against the creation of debts by counties prescribed in Section 10 of Article XI of this Constitution shall apply and extend to debts hereafter created in the performance of any duties or obligations imposed upon counties by the Constitution or laws of the state, and any indebtedness created by any county in violation of such prohibition and any warrants for or other evidences of any such indebtedness and any part of any levy of taxes made by the state or any county, municipality or other taxing district or body which shall exceed the limitations fixed hereby shall be void”: Laws 1917, p. 12.
3. Recurring to the answer, the first defense is rested upon the provisions of the budget law. The argument is that Chapter 234, Laws 1913, commands that no greater expenditure of public moneys shall be made for any specific purpose than the amount estimated in the budget plus 10 per cent; that the budget made no provision for elections for the reason that the next regular election will occur in 1918; and that therefore to spend public moneys in 1917 for a special election would be to violate Chapter 234, Laws 1913. The budget law was enacted by the legislature and the same body passed Chapter 422, Laws 1917, providing for the special election. The authority that restricted the disbursements to specified purposes, can, subject *475to certain exceptions not controlling here, afterwards remove those restrictions. The act of 1917 directing that a special election he held also carries with it an implied command that the several counties of the state pay the expenses of such election; and therefore the restrictions imposed by the earlier statute of 1913 are removed to whatever extent it may be necessary to release the county from that statute in order to permit compliance with the later statute of 1917.
The second and third defenses may be considered together since they depend Upon tax and indebtedness limitations ' prescribed by the Constitution. Section 11 of Article XI is divided into two paragraphs. The first paragraph imposes a limitation upon the power to tax, while the second prescribes a limitation upon indebtedness. Notwithstanding the language employed in Section 11, it was earnestly argued that this section will not include indebtedness incurred in holding the special election, for the reason that such indebtedness would be involuntarily incurred in the performance of an obligation thrust upon it by the legislature. All doubts concerning the intent and the meaning of Section 11 will be removed if we first call attention to the construction that for more than a quarter of a century was placed upon Section 10, and if we then carry that construction with us and apply it as directed by Section 11. In Grant County v. Lake County, 17 Or. 453, 464 (21 Pac. 447), this court held that Section 10 only applied to debts and liabilities, which a county voluntarily created, and that it did not include involuntary indebtedness thrust upon it by operation of law. The first judicial construction placed upon Section 10 has been adhered to in every subsequent adjudication, whether the section was presented in its original or in its amended form; and no difference of opinion can *476possibly exist concerning the accepted meaning of this provision of the Constitution: Wormington v. Pierce, 22 Or. 606, 614 (30 Pac. 450); Burnett v. Markley, 23 Or. 436, 440 (31 Pac. 1050); Dorothy v. Pierce, 27 Or. 373, 375 (41 Pac. 668); Municipal Security Co. v. Baker County, 33 Or. 338, 343 (54 Pac. 174); Eaton v. Mimnaugh, 43 Or. 465, 471 (73 Pac. 754); Brockway v. Roseburg, 46 Or. 77, 82 (79 Pac. 335); Brix v. Clatsop County, 46 Or. 223 (80 Pac. 650); Cunningham v. Umatilla County, 57 Or. 517, 519 (112 Pac. 437, 37 L. R. A. (N. S.) 1051); Andrews v. Neil, 61 Or. 471 (120 Pac. 383, 123 Pac. 32); Bowers v. Niel, 64 Or. 104 (128 Pac. 433); Wingate v. Clatsop County, 71 Or. 94 (142 Pac. 561); Stoppenback v. Multnomah County, 71 Or. 493 (142 Pac. 832). The obvious purpose of Section 11 is to broaden the prohibition of Section 10 and to include in the prohibition a kind of indebtedness not previously included. Manifestly, Section 11 is designed to include a class of indebtedness which the courts had previously said that Section 10 did not include. The extent of the enlargement of the prohibition is made plain and certain by expressly extending Section 10 to debts “created in the performance of any duties or obligations imposed upon counties by the Constitution or laws of the state.” This language needs no extraneous words to aid in its construction, for it is unambiguous and self-construing. To hold that Section 11 does not apply to any involuntary indebtedness would be to deny the indisputable meaning of the clearest language. Standing alone, Section 10 applies to voluntary indebtedness; but, when aided by Section 11, it also applies to involuntary indebtedness, or debts created in the performance of duties and obligations imposed by the Constitution or laws of the state. Aside from the exceptions expressly specified *477by the Constitution, a county is absolutely prohibited from incurring an indebtedness in excess of $5,000.
While it is not necessary to seek information outside the plain language found in Sections 10 and 11, yet it may be of more than passing interest to call attention to the discussions appearing in the public prints, prior to November 7, 1916, concerning the origin and purpose of the amendment to the Constitution. An organization known as the State Taxpayers’ League caused the amendment to be framed and circulated the petitions for its submission to the voters. The pamphlets printed by the state and sent to all the voters expressly stated that the amendment had been “Initiated by State Taxpayers’ League”; and, furthermore, a printed argument made by the State Taxpayers’ League in behalf of the amendment appeared in the voter’s pamphlet. A monthly newspaper called “The Tax Liberator” was the avowed official publication of the Oregon Taxpayers’ League. Copies of the paper are on file with the Oregon State Library. The publishers of this paper proclaimed that one of the purposes of the amendment was to place a limit on the power of disbursing officers to incur indebtedness. An extract from an editorial appearing in “The Oregon Voter,” a weekly publication, and republished on page two of the July, 1916, issue of the Tax Liberator reads thus:
“Emergencies there will be, requiring immediate, heavy expenditure. This applies to public as well as private business. The private business man knows that his income is limited; yet he must be ready to meet emergencies, and must take care of himself when they arise. The public bodies must learn the same lesson, they must learn that they must arrange public finances within the limit of income in such a way that emergencies can be met when they arise. This will *478require saving and trimming in advance the same as a farmer or other man in private business must do. Facing a limit beyond which expense must not go will result ultimately in more careful financing and ample provision for emergencies. Absence of any limit simply results in adding the emergency expense to present running expenses, regardless of the size of the increased burden upon taxpayers.”
Moreover, in answer to the argument that the proposed amendment would not be workable, the sponsors for the amendment claimed that in framing it they had “exactly followed the principles of the Colorado law which has proven to be most workable and entirely satisfactory to all concerned.” Page 7, October, 1916, issue of The Tax Liberator. In this connection it is interesting to note that the Constitution of Colorado provides that
“the aggregate amount of indebtedness of any county, for all purposes, exclusive of debts contracted before the adoption pf this Constitution, shall not at any time exceed twice the amount above herein limited, unless when, in manner provided by law, the question of incurring such debt shall, at a general election be submitted to ’ ’
the qualified electors. One Rollins held warrants issued by Lake County, one of the counties of Colorado, for the ordinary expenses, such as fees for witnesses and jurors, election costs, and charges for the board of prisoners. Rollins sued Lake County on the warrants. The county defended by contending that the warrants were void because issued after the county indebtedness had reached the limit fixed by the Constitution. The controversy finally reached the supreme court of the United States and it was there argued, as it has been here, that the prohibition expressed in the Constitution did not apply to “compulsory obligations”; but that *479court sustained the defense made by the county and refused to assent to the argument that the Constitution recognized a difference between indebtedness incurred by the voluntary contracts of the county and that form of debt denominated as “compulsory obligations”: Lake County v. Rollins, 130 U. S. 662 (32 L. Ed. 1060, 9 Sup. Ct. Rep. 651).
At the hearing, we were urged to adopt a construction which would enable counties to incur involuntary indebtedness, and in support of this plea it was argued that counties may at times experience difficulty in adequately performing the duties imposed upon them without exceeding the $5,000 indebtedness limitation; and, furthermore, it was suggested that some county may at some time in the future find itself temporarily weakened, or even paralyzed, by the restrictions laid upon it by Article XI, Section 11 of the Constitution. This argument is best answered by quoting the language employed by Mr. Justice Lamar when disposing of a similar argument advanced against the Colorado Constitution in Lake County v. Rollins, 130 U. S. 662, 672 (32 L. Ed. 1060, 9 Sup. Ct. Rep. 651):
“If it was a mistaken scheme, if its operation has proved or shall prove to be more inconvenient than beneficial, the remedy is with the people, not with the courts. ’ ’
4, 5. Questions of policy and questions of what is best to insert in the Constitution must be regarded as having been conclusively settled when the legal voters adopted the amendment. The oath of the judiciary is to construe the Constitution as it is, and not as it might have been: Hagan v. Commissioners Court of Limestone County, 160 Ala. 544 (49 South. 417, 37 L. R. A. (N. S.) 1027); Gray on Limitations of Taxing Power and Public Indebtedness, § 2055,
*480However, this amendment to onr Constitution does not involve a novelty, nor does it present an untried experiment. The Constitutions of some of the other states contain similar provisions, which, when presented to the courts for interpretation, have been construed to apply to both voluntary and involuntary indebtedness: People v. May, 9 Colo. 80 (10 Pac. 641); Barnard & Co. v. Knox County, 105 Mo. 382 (16 S. W. 917, 13 L. R. A. 244); Grand Island & N. W. Co. v. Baker, 6 Wyo. 369 (45 Pac. 494, 71 Am. St. Rep. 926, 34 L. R. A. 835); Gray on Limitations of Taxing Power and Public Indebtedness, § 2059.
6. Any debt contracted by Curry County in holding the special election would be an involuntary indebtedness incurred in the performance of a duty and obligation imposed by a law of the state; and therefore such a debt is prohibited if it exceeds the $5,000 limitation fixed by the Constitution. The organic law prevents the county from voluntarily assuming the debt and it also restrains the legislature from compelling the county to assume the debt if the maximum limit of indebtedness will be exceeded: Lake County v. Rollins, 130 U. S. 662 (32 L. Ed. 1060, 9 Sup. Ct. Rep. 651); 7 R. C. L. 952.
The next question for determination is whether, on the admitted facts, the special election will create an indebtedness in excess of $5,000. It will not be necessary to decide whether Article IX, Section 3 of the Constitution applies to the taxes levied for roads and schools; but for the purposes of this investigation we shall assume that the legislature cannot divert tax moneys levied for state or school, or road purposes: see Northup v. Hoyt, 31 Or. 524, 528 (49 Pac. 754); Shattuck v. Kincaid, 31 Or. 379, 394 (49 Pac. 758); Miller v. Henry, 62 Or. 4, 10 (124 Pac. 197, 41 L. R. A. *481(N. S.) 97); Guest v. City of Brooklyn, 8 Hun (N. Y.), 97; Mason v. Purdy, 11 Wash. 591 (40 Pac. 130). We shall, therefore, first exclude all taxes levied for the state and also those levied for schools, roads and bridges. The remainder of the levy was for “county tax, general 4.1 mills.” This levy will produce $19,037.60 for general county purposes.
7. Although the record does not reveal how much of the levy for general county purposes has actually been collected, nevertheless, after the levy is made the payment of the taxes is regarded as a legal certainty and for that reason our calculations must assume that Curry County has collected $19,037.60 for general county purposes: Municipal Security Co. v. Baker County, 33 Or. 338, 347 (54 Pac. 174). The record does not show how much of this amount has already been expended; but it is fair to assume that only such sum has been paid out as is proportionate to the expired portion of the year.
8. It is true that the budget shows that the county plans to expend the whole amount raised for general county purposes; and if the county carries out its plans it will he impossible to hold the special election without exceeding the $5,000 indebtedness limitation. In other words, if the county is permitted to do what it has planned to do it will pay out all the tax money for the items mentioned in the budget and there will be no money available to pay the cost of the election. The legislature, however, by the enactment of Chapter 422, Laws 1917, has in effect said to Curry County:
“If your plans require all your money, then you must change your plans; and, instead of using all your money as you have planned, you must set aside a sufficient sum to pay for the special election and only the balance remaining is available for your plans”: *482Miller v. Henry, 62 Or. 4, 7 (124 Pac. 197, 41 L. R. A. (N. S.) 97.),
Some of the items appearing in the budget are for voluntary purposes while the others are for involuntary obligations; and most of the involuntary obligations were originally imposed by the legislature. The legislative authority which imposed most of the involuntary obligations included in the budget, also created the duty of holding the special election; and the duty lately created is not necessarily of a lower rank than the obligations previously imposed. If there is not enough money to pay for both the voluntary and involuntary items, the latter will of course take precedence over the former; and if perchance because of a lack of funds the county cannot perform all the obligations imposed upon it without exceeding the debt limitation, nevertheless the necessity of obeying the Constitution is paramount and controlling.
However, it is not probable that the expenditure of $1,200 for the special election will be followed by the direful consequences suggested by the answer. The pleadings do not mention and no account has been taken of the revenues coming to the county from sources other than taxes. The fees paid to the various county officers for the county during the year undoubtedly aggregate a considerable sum and probably are more than enough to pay for holding the special election. If the income from fees and other sources aside from taxes, is sufficient to pay for the election then all the general county taxes will be available for the purposes mentioned in the budget and the county will be able to carry out its plans without exceeding the indebtedness limitation. The answer fails to show that the Constitution will be violated if the election is *483held; and therefore the demurrer to the answer was properly sustained and the petitioner was entitled to a peremptory writ commanding the defendants to prepare for the election. Peremptory Writ Issued.