State ex rel. Guthrie v. Board of Commissioners for the Management & Investment of the School Fund , 4 Kan. 261 ( 1868 )

By the Court,

Kingman, C. J.

The relator shows, by affidavit, that he is the owner of a warrant, drawn by the auditor of state on the treasurer, for $93, it being for a portion of his pay as member of the legislature for the current year; that he presented said warrant to the state treasurer, and was refused payment for want of funds. That the governor of the state had tendered to the board of commissioners for the management and investment of the sóhool fund the bonds of the state, as provided by the act entitled “An act providing for the issuance and sale of the bonds of the state, for the purpose of paying the officers and members, of the state legislature, and current expenses of the state,” approved March 2d, 1868, and that the board had refused to invest the funds under their control in said bonds. Upon this showing, the relator moves the court for a writ of mandamus, compelling the board to make such investment. ' The board of commissioners appear and resist the motion, upon the ground exclusively that the act above referred is not authorized by the constitution.

Thm motion might well be denied on the showing made, for other reasons than that presented-by.the defendants. Among others, it does not appear that the relator lias any direct interest in tlie action of tlie board, for it is not shown that the board has any money under their control to buy bonds with. Nor is it manifest that if they had money, and invested it in the bonds, the relator would get any of it.

Again, under the act- holding it valid, the board has a discretion as to time and terms, which it does not appear has been exercised, and with which a court will not interfere. But, as the relator and the board agree in asking a decision of the motion on the sole ground of the constitutionality of the act above referred to, we do not feel at liberty to avoid the duty, especially as a refusal of the writ upon the grounds first indicated, would probably bring the main question again before the court for consideration.

The act referred to directs the issue and sale of $30,000 of the bonds of the state (with interest coupons attached), payable in twenty years from date, and directs, in section four, “that the commissioners for the management and investment of the school funds are authorized and directed to invest an amount of the permanent school funds in said bonds, sufficient to satisfy the requirements of this act.” The act further provides that the bonds shall not be sold for less than ninety cents on the dollar ; provides, also, for the levy of a tax to pay the interest and create a sinking fund, and contains other provisions necessary to carry out the objects thereof.

The object of the enactment is stated in the title, to be for the purpose of paying the officers and members of the state legislature, and current expenses of the state. It is contended by the respondents that this act is in conflict with the provisions of article 11 of the constitution of the state.

■ Those parts of that article bearing upon this question are as follows:

£‘Section 3. The legislature shall provide, each year, for raising a revenue sufficient to defray the current expenses of the state.”

£ ‘ Section 5. For the purpose of defraying extraordinary expenses, and making "public improvements, the state may contract public debts.”

£ £ Section 6. No debt shall be contracted by the state except as herein provided, unless the proposed law for creating such debt shall first be submitted to a direct vote of the electors of the state, at some general election; and if such q>roposed law shall be ratified by a majority of all the votes cast at such general’election, then it shall bé the duty of the legislature next after such election, to enact such law, and create such debt, subject to all the provisions and restrictions of the preceding section of this article.”

Section 7 authorizes the state to borrow money to repel invasion, suppress insurrection, to defend the state in time of war.

The question we have to decide is, whether the act of March 2d, 1868, above referred to, is.in contravention of the constitutional provisions as to contracting debts. If it is, however unpleasant may be the duty of differing with a co-ordinate branch of the government as to its powers, it is still a duty we are not at liberty to decline. If an act of the legislature prescribes a role of action not authorized by the limitations imposed by the fundamental law of the state, it cannot become a law, and the courts cannot so regard it. Courts are bound by the lav/. But one of two incidentally conflicting rules can be observed,’ and if one of such rules be found in the constitution and the other in the act of the legislature, we are to follow the fundamental law, and must necessarily hold the act-of the legislature void. So in this case, if the constitution inhibits the contracting of such debts as the act provides for, we cannot say the respondents shall comply with the terms of the legislative enactment, and disregard the constitutional limitations.

If this is a conflict, the constitution must prevail. We think there is such a conflict, and that it is irreconcilable. Article 11 prescribes the general financial policy of the state. Section 8 of that article declares it the duty of the legislature to provide the revenue for the current expenses of the state each year. This section would be popularly taken to mean that taxes should be levied each year to meet the current expenses. And this is precisely the technical construction.

The-word “revenue,” in this connection, means the income of the government arising from taxation, excise and the like. See Bouv. Law Dic., title Revenue; Story on Const., §880.

This section is directory to the legislature only. It prescribes a duty to that body, and a rule to guide them in the discharge of that duty. From the exercise of their discretion under that section, there is no appeal save to the people, the great conservative power in a popular government.

If the taxes levied are inadequate to meet the current expenses, those having claims against the state will find in depreciated scrip just cause and adequate motive to make their grievances known, and the people can correct the evil by instructing their agents to make the taxes higher or the expenses less, as they may deem right. The section is quoted and commented on, as necessary to show the settled policy of the state. Its object was to prevent extravagance by calling immediate and general attention to it in the shape of high taxes, or in depreciated credit, thus indirectly, but very efficiently, prescribing limitation upon that subject. The 5th, 6th and 7th sections of article eleven, are the only ones authorizing a public debt. An examination of these sections will show, conclusively, that in none of them, nor in all of them, will there be found any authority for the act of the legislature under consideration.

The 5th section authorizes a public debt for extraordinary expenses, and for making public improvements. It is claimed by the relator that the-legislature is the sole judge of what is an extraordinary expense, and that its decision on that matter is not reviewable.

If this be true, which is neither admitted nor denied, it still does not apply to this case, for there is no pretense in the law that the expenses were extraordinary in their character. The object is plainly stated in the title to be for the purpose of paying the officers and members of the legislature, and current expenses of. the state. .

These are the common and ordinary charges of a government, accruing necessarily each year. None more so can be imagined. They are precisely what the constitution declares shall be met by annual taxation. The legislature has not even pretended to declare the expenses extraordinary in their character, or in the circumstances attending them.

The court is not placed in the disagreeable position of disagreeing with the legislature on this point. . The law would not have been plainer or more explicit had it said for “ ordinary expenses,” than it now is. The object is declared, and it is too plain to admit of a moment’s cavil. If such expenses are not of an ordinary character, there can be none.

The relator seems to have felt the full weight of this conclusion, which he seeks to avoid by claiming “that an emergency may arise when the necessities of the case are higher than the organic law itself. That the self-existence of the government may require the legislature to resort to extraordinary measures to secure funds to carry on the state government, and that the case at bar is one of such cases ; and of this the legislative and executive departments of the state are the sole judges.”

The first proposition in this quotation from the brief of the relator, we shall not comment on. It may be true; it Certainly is dangerous. The record meets our approbation.

We can imagine circumstances that would amply justify the legislature in resorting to extraordinary measures to secure funds. The constitution has wisely made provision for such cases, with such prudent limitations and restrictions as seemed necessary to protect the people of the state. But this is not one of those cases, and the legislative and executive departments (whether the sole judges or not), have so said in the act itself, as has, we trust, been before made apparent.

Again, it is claimed under the fifth section, that the issue of the bonds and the investment of the school funds in such bonds as contemplated by the act, is not the creation of a debt, but only changing the form of such debt. This is fallacious. The constitution speaks of. contracting a debt, and this law contemplates the contracting of one debt to pay another — the contracting of a permanent debt to the school fund, to pay off certain current expenses. If a construction such as 'that contended for should prevail, it would allow the legislature to break down constitutional restrictions by their own neglect.

They need not make the appropriations for current expenses exceed the taxes they are willing to impose; then, calling the deficiency a debt, fund it, make it permanent, and the safeguards of thé constitution disappear. .

We are not disposed to deny that an unpaid warrant of the state is a debt, in'one sense of that term; but it could never be expected that any financial scheme extending over a state could be so arranged as that the revenue, each year, should exactly balance the audited claims. Such a construction would demand an impossibility ; but the general financial policy of the state is to make them balance as near as may be, and this does not contract a debt in the meaning of the constitution.

The Supreme Court of Ohio says, with propriety: “Under the system of prompt payment of expenses and claims as they accrue, there is undoubtedly, after the accruing of the claim, and before its actual presentation and payment, a period of time intervening in which the claim exists unpaid; but to hold that for this reason a debt is created, would be the misapplication of the term “debt,” and substituting for the fiscal period a point of time between the accruing of a claim and its payment, for the purpose of 'funding a debt; but appropriations having been previously made, and revenue provided for payment as prescribed by the constitution, such debts, if they may be so called, are, in fact, in respect to the fiscal year, provided for with a view to immediate adjustment and payment. Such financial transactions are not, therefore, to be deemed debts.” 7 Ohio S., 529.

Whatever may be the exact nature of the claim, it is one- to be met by raising a tax, and not by creating a permanent debt, which cannot be done under the section for any such purpose as that declared in the law.

Section six does provide for the contracting of a debt of the kind and character mentioned in the act before us, but makes the submission and ratification of such proposed law to a vote of the people a necessary prerequisite to its validity.

Section seven provides for a debt, for two purposes only. It- is not claimed that either of these sections sanctions the law in question. They are referred to by us to exhibit the general financial system of this state, and show that ample power is confided to the legislature to meet every exigency, if wisely and prudently used.

It is manifest that, in our view, the legislature had no power to contract the debt in that way, and, therefore, the law imposed no obligation upon the respondents, and they have proved faithful guardians of the funds committed to their care by the constitution, in preserving them inviolable.

The writ of mandamus must be refused. The affidavit of the relator, as well as his brief, refers to a joint resolution on this same subject, and of the same general tenor as the law we have examined. At least, so far as this case is concerned, it is clearly a law of a general nature, and has never been published; therefore, we have not noticed it in this opinion, as it is not yet in force. Art. 2, § 19, Const.

Nor must our silence upon section nine of article six be taken as indication of any opinion that that section might not have a controlling influence in this case. We ■are content to rest our decision on the grounds before stated, and leave 'the interpretation of this section till it shall become necessary.

All the justices concurring.