Gem Irrigation District v. Van Deusen , 31 Idaho 779 ( 1918 )

BUDGE, C. J.

This proceeding was brought in the district court of the third judicial district, for Ada county, by respondent, for a writ of mandate to compel appellant, as state auditor, to draw a warrant on the general fund for $90,396, payable to the state board of land commissioners, and to deliver it to respondent for the indorsement of its officers. An alternative writ was issued. A motion to quash was overruled and - appellant declined to plead further. Thereupon the trial court filed its findings 'of fact and conelusions of law and entered judgment directing that'the writ issue. This appeal is from the judgment.

The constitutionality of chap. 73, Sess. Laws 1917, p. 235, appropriating the sum of $96,670, or so much thereof as may be necessary, out of the general fund “to be used by said Gem Irrigation District in the purchase of state lands” lying therein, is involved.

Sec. 6, art. 7, of the constitution, provides:

“Sec. 6. The legislature shall not impose taxes for the purpose of county, city, town or other municipal corporation, but may by law invest in the corporate authorities thereof, respectively, the power to assess and collect taxes for all purposes of such corporation. ’ ’

An irrigation district is a municipal corporation within the meaning of the foregoing constitutional provision. (Pioneer Irr. Dist. v. Walker, 20 Ida. 605, 119 Pac. 304; Ferbrache v. Drainage Dist. No. 5, 23 Ida. 85, Ann. Cas. 1915C, 43, 128 Pac. 553, 44 L. R. A., N. S., 538; Brown Bros. v. Columbia Irr. Dist., 82 Wash. 274, 144 Pac. 74.)

The constitutional provision above quoted prohibits the legislature from imposing taxes for the purpose of any municipal corporation. It necessarily follows that the legislature is without authority to make appropriations for any such purpose. If the law were otherwise, the legislature might appropriate money for municipal corporations and circumvent the limitation thereby imposed, since practically all moneys available for appropriation by the legislature are raised by taxation. The principle is well stated by the supreme court of Kentucky in the following language:

“Appropriations of public funds and levying taxes to raise funds for the same end rest upon the same principle. If an object cannot have a tax levied for it, ... . then no appropriation of public money can be made to it. Where the constitution forbids the levying of a tax for a given purpose, it must be held that it also withholds the power of making appropriations for that purpose, .... ” (Agricultural & Mech. College v. Hager, Auditor, 121 Ky. 1, 87 S. W. 1125, at 1129.)

The same principle was stated by the supreme court of West Virginia in the following language:

“The right of the legislature to appropriate the public funds is no greater than its right to tax. 1 Cooley, Const. Lim. 184.” (Woodall v. Darst, 71 W. Va. 350, Ann. Cas. 1914B, 1278, 77 S. E. 264, 44 L. R. A., N. S., 83, at 86.)

The principle falls within the general rule stated by Cooley, as follows:

“There is no difficulty in saying that any such act, which under pretense of exercising one power is usurping another, is opposed to the constitution and void.” (Cooley, Constitutional Limitations, 7th ed. p. 244.)

It is apparent, from what has been said, that chap. 73, Sess. Laws 1917, supra, is in contravention of sec. 6, art. 7, of the constitution, and is therefore void. The constitutionality of the foregoing act has been assailed upon other grounds, but since the constitutional provision above referred to disposes of the case, we deem it unnecessary to discuss them.

The judgment is reversed. Costs are awarded to appellant.

Morgan, J., concurs. Rice, J., deeming himself disqualified, did not sit with the court, nor participate in the opinion.