On the second Monday in January 1941, defendants, the board of county commisisoners of Canyon County, set up under and in compliance with Chapter 12, Title 30 I. C. A., the budget for the ensuing year, containing among other items, $44,000, the maximum amount which the board estimated could be raised by a levy of 2 mills on the dollar on all taxable property in said county, authorized by Sec. 30-3301 I. C. A. as amended by 1939 S. L. Ch. 182, page 349. Thereafter 1941 S. L. Ch. 66, page 127, carrying an emergency clause, page 130, became effective the date of the approval, March 3, 1941, authorizing a three mill levy.
Whereupon, June 18, 1941 defendants passed a resolution1 declaring an emergency in Canyon County as to *Page 32 the relief situation therein, and that the 2 mill levy was insufficient, that they had been notified unless a 3 mill levy was made, cooperation from state funds would be withdrawn, and accordingly increased the relief levy from two to three mills.
Plaintiff, as a taxpayer in Canyon County, in this original proceeding resists such action as violative of the county budget law, supra, in that the budget having been fixed in January, could not thus be later changed.
Defendants urge lack of jurisdiction in this court because the board was exercising discretionary powers. Plaintiff contends the board was exceeding their jurisdiction to act, not that it was abuse of discretion.
Being a question of jurisdiction and a matter of state wide importance which should be promptly decided, the application is not improper. Williams v. Lewis, 6 Idaho 184, 54 P. 619; Bakerv. Gooding County, 25 Idaho 506, *Page 33 138 P. 342; State v. Leonardson, 51 Idaho 646,9 P.2d 1028; Taylor v. Girard, 54 Idaho 787, 36 P.2d 773.
Plaintiff's position as to the bar of the budget law however, is not well taken because that law itself expressly provides for contingencies such as this arising after the initial setting up of the budget:
Section 30-1205 I. C. A.: ". . . . In the event of any unforseen contingency arising, which could not reasonably have been foreseen at the time of making the budget, and which shall require the expenditure of money not provided for in the budget, the board of county commissioners, by unanimous vote thereof, shall have the right to make an appropriation from the 'general reserve appropriation' to the office, department, service, agency or institution in which said contingency arises, in such amount as shall be determined by resolution of said board. . . ."
Such provision is clearly applicable herein. LloydCorporation v. Bannock County, 53 Idaho 478, 25 P.2d 217 (original opinion); State v. Superior Court, (Wash.) 261 P. 90;In re Protest of Cities Service Gas Co., (Okla.) 19 P.2d 546;Los Angeles County v. Payne, (Cal.) 66 P.2d 658; State v.District Court, (Mont.) 91 P.2d 399; McKinney v. Helms, (Ind.) 2 N.E. (2) 800; Jefferson County Fiscal Court v.Jefferson County, (Ky.) 78 S.W. (2) 324. See also, Section 30-1208, I. C. A.
The legislature perforce knew the counties had made their budgets prior to the effective date of the three mill levy amendment. The legislature must have intended the amendment to be operative in the current year because of the emergency clause, hence the 1941 amendment clearly extended the powers of the county commissioners under the budget law, if it did not in fact amend such law, thereby empowering them to make the three mill levy for 1941, even though the budget had already been set up on the two mill basis.
Since the levy is not made until September (Sec. 61-801 I. C. A.) there is no occasion to issue warrants and allow them to remain unpaid but the additional levy authorized by the 1941 amendment may be made. *Page 34
Writ denied.
BUDGE, C.J., and MORGAN, J., concur.
AILSHIE, J., concurs in denial of the writ.
1 "RESOLUTION
"WHEREAS, it is provided by Chapter 66 of the Session Laws of the State of Idaho for the year 1941, that the several Boards of County Commissioners of the respective counties in the State of Idaho have the jurisdiction and power, under such limitation and restrictions as are prescribed by law, to care for and maintain the indigent sick or otherwise dependent poor of their respective counties. And for this purpose, said Boards are authorized to levy an ad valorem tax not exceeding 3 mills on the dollar of all taxable property in the respective counties, and,
WHEREAS, the Attorney General of the State of Idaho, in an opinion dated April 7, 1941, ruled that in view of the fact that he had found no authority to the contrary, that an additional levy in good faith might be made by the county officers without the incurrence of personal liability, and,
WHEREAS, under the budget for Canyon County, as finally approved, it would be possible to levy only to the extent of 2 mills, and
WHEREAS, Canyon County is faced with a serious relief situation because of the fact that the funds, which can be raised under said 2 mill levy, will be insufficient to care for the needs of persons entitled to public assistance, as provided in Paragraph 1, Section 1, Chapter 66 of the 1941 Session Laws, and
WHEREAS, the serious condition in Canyon County is further aggravated by the fact that the State Department of Public Assistance has advised the Commissioners of said County that unless they make a levy of 3 mills, as provided by said Chapter 66 of the 1941 Session Laws, to care for the relief problems in said county for the current fiscal year, the said State Department of Public Assistance will not provide State funds such as have been provided in the past, or at all, in caring for eligible persons in need of, and eligible for, public assistance, and
WHEREAS, in anticipation of additional funds to be raised by a 3 mill levy, the Board of County Commissioners of Canyon County have cooperated with the State Department of Public Assistance, and have expended funds based upon said cooperation, an amount which would be equivalent to the amount raised by the 3 mill levy.
NOW, THEREFORE, BE IT RESOLVED, by the Board of County Commissioners of Canyon County, Idaho, that in order to avoid the crisis which would otherwise follow, and in order to obtain the cooperation and participation of the State Department of Public Assistance, and in accordance with the aforementioned opinion of the Attorney General of the State of Idaho, it is hereby declared that the Board of County Commissioners of Canyon County will, at the time fixed by law, levy an ad valorem tax of 3 mills on the dollar on all taxable property in Canyon County, Idaho, as provided by said Chapter 66 of the Session Laws of 1941, in order to furnish funds for expenditures now being made by the said Board of County Commissioners, and to care for the aforementioned persons for the current fiscal year."
T.M. DECOURSEY Chairman
ATTEST: F. KUEHN, JR. Clerk"