Herrin v. Erickson , 90 Mont. 259 ( 1931 )

This is an action to enjoin the issuance and sale of state bonds to the extent of $2,096,500 under authority of Chapter 126, Laws of 1929, and Chapter 186, Laws of 1931.

Chapter 126 was passed by the legislature, approved by the governor, and ratified by the people at the general biennial election held on November 4, 1930. Section 1 of the Act authorizes and empowers the legislative assembly to direct the state board of examiners to issue bonds in an amount not exceeding $3,000,000 for the purpose of constructing, repairing and equipping necessary buildings, acquiring necessary grounds, and for other permanent improvements at fourteen specified state institutions. Section 2 provides that the bonds shall be issued in series and at such time and in such amount as appears to the legislative assembly to be necessary and for the best interests of the state. Section 3 specifies the time of the maturity of the bonds and their interest rate, and contains this proviso: "and provided further that interest only shall be paid on said bonds for the first ten (10) years after their issuance, and that thereafter provision shall be made for a sinking fund adequate for the redemption of said bonds pursuant to their terms." By section 4 the state board of examiners is authorized to prescribe the form of the bonds subject to certain requirements therein specifically made. Section 5 prescribes the manner of disposing of the bonds. Section 6 directs that the proceeds from the sale of the bonds shall be paid into the state treasury and be expended for the purposes enumerated in section 1 of the Act. Section 7 provides: "That there shall be levied annually upon all property in the State of Montana subject to taxation an ad valorem tax upon each dollar of the assessed valuation of such property sufficient to pay the interest accruing on said bonds for the first ten (10) years after their issuance, and sufficient thereafter to pay the interest on said bonds and to provide an adequate sinking fund for their redemption. The tax when collected by the county treasurers of the several counties of the state shall be by them accounted to and paid into the state treasury of the State of Montana, and by the state treasurer placed in the ``State Institutions Bond Sinking and Interest Fund,' which fund shall be used exclusively for the payment of the interest on said bonds, and to constitute a sinking fund for their redemption." Section 8 provides for the submission of the Act to the people.

Chapter 186 of the Laws of 1931 authorizes the state board of examiners to issue and sell bonds contemplated by Chapter 126, Laws of 1929, in the aggregate amount of $2,096,500, and allocates to each of the institutions named in Chapter 126 a definite sum of money, and itemizes with particularity the purposes for which the money allocated to each institution shall be expended, and specifies a definite amount of money for each unit of work to be done at each institution.

Plaintiff's right to enjoin the issuance and sale of the bonds[1-3] is grounded upon the claim that there has been no compliance with section 2 of Article XIII, of the state Constitution, which provides: "The legislative assembly shall not in any manner create any debt except by law which shall be irrepealable until the indebtedness therein provided for shall have been fully paid or discharged; such law shall specify the purpose to which the funds so raised shall be applied and provide for the levy of a tax sufficient to pay the interest on, and extinguish the principal of such debt within the time limited by such law for the payment thereof; but no debt or liability shall be created which shall singly, or in the aggregate with any existing debt or liability, exceed the sum of one hundred thousand dollars ($100,000) except in case of war, to repel invasion or suppress insurrection, unless the law authorizing the same shall have been submitted to the people at a general election and shall have received a majority of the votes cast for and against it at such election."

This section contemplates the borrowing of money for some state purpose, and the repayment thereof by some method of taxation. As applicable to the present situation, it contemplates the creation of a debt, the incurring of a debt, by the legislative assembly upon compliance with certain definite conditions and restrictions, and in consequence contemplates an increase in the rate of taxation for a state purpose. (1) The debt must be created by a law which shall be irrepealable until the indebtedness therein provided for shall have been fully paid and discharged; (2) such law shall specify the purpose (not purposes) to which the funds so raised shall be applied; (3) and provide for the levy of a tax sufficient to pay the interest on, and extinguish the principal of such debt within the timelimited by law for the payment thereof. If the amount of the debt exceeds $100,000, except in case of war, to repel invasion or suppress insurrection, it must receive the affirmative vote of the people. This being regularly ascertained and declared, the law is operative in all its provisions. The debt is created by (1) the Act of the legislative assembly complying in all respects with the constitutional requisites; (2) the approval of the people; (3) the receipt of the money borrowed, for which the state issues its promise, or promises, to pay, usually in the form of bonds, redeemable after a definite period, and payable at a certain time with interest, as authorized by the law. Necessarily the creation of the debt goes back to the legislative Act.

In State ex rel. Campbell v. Stewart, 54 Mont. 504, Ann. Cas. 1918D, 1101, 171 P. 755, 756, this court had before it an Act appropriating $500,000, "or so much thereof as may be necessary," to aid the United States in prosecuting the war against Germany. It empowered the board of examiners to borrow "any sum not exceeding $500,000" to be used for that purpose, and to issue bonds therefor. The Act made provision for levying a tax, but only for the year 1918. It was held that the Act came within the exception provided for in section 2 of Article XIII, as a war measure, and for that reason did not create a debt within the purview of that section. In that case the court, in speaking of section 2, used this significant language: "The very terms of the section imply and contemplate a specific obligation created by the legislature itself, of such a character that computation will disclose in advance what tax levy is requisite to pay the interest on and to extinguish the debt at its certain maturity."

This statement in the Campbell Case correctly interprets section 2 of Article XIII. That section clearly contemplates that the law which requires the approval of the people shall itself create the debt subject to their approval. The legislative power with respect to the debt shall be exhausted by the passage of the law creating it, and, if approved by the people, it passes beyond further legislative control. (Morton-Bliss Co. v.Comptroller, 4 S.C. (4 Rich.) 430.) The irrepealable law contemplated by the Constitution is one entirely complete in itself and self-executing. It must provide a tax for the retirement of the indebtedness, and nothing is to be left for subsequent legislative discretion. The Act must be and remain inviolate in its provisions until the bonds are completely redeemed. The constitutional requirement is that the law creating the debt shall specify (point out) the purpose to which the funds shall be applied. It does not say that such law shall indicate in a general way the purpose or purposes for which the funds will be used. The Constitution contemplates that such a law shall embrace but a single purpose. (Hollinger v. King, 282 Pa. 157, 127 A. 462, 464; Peopleex rel. Hopkins v. Board of Supervisors, 52 N.Y. 556.) This fact was assumed in the case of State ex rel. Bonner v.Dixon, 59 Mont. 58, 195 P. 841.

Furthermore, it was clearly contemplated, and as to this all members of the court agree, that such law shall levy a tax sufficient to pay the interest and principal when due, and not attempt to shift that responsibility to succeeding legislative assemblies. This was to assure protection to bondholders and in so doing to operate as a guaranty to the state that it would obtain a fair market for its bonds. So viewing section 2 of Article XIII, we come then to the question whether Chapter 126 meets with its requirements.

Plaintiff's principal contentions are that Chapter 126 fails to provide for the levy of a sufficient tax, or any tax, as required by this section of the Constitution; that it does not specify the purpose to which the funds shall be applied; and that it does not authorize the creation of a debt but undertakes to delegate to future legislative assemblies that power.

In the first place, does it authorize the creation of a debt, or does it seek to obtain the consent of the people for future assemblies to create one? Measured by the standard prescribed in the Campbell Case, it obviously does not create a debt. There is no specific obligation, or any obligation, created until and unless a subsequent legislative assembly shall act on the purported authorization. The amount that is to be borrowed, the amount of the bonds to be issued, the time when the obligation will attach, rest within the discretion of succeeding legislative assemblies; yet, as said in the Campbell Case, all are "requisite to the provision demanded by section 2 of Article XIII." Future assemblies are at liberty, under the scheme, to direct the sale of bonds in as little or as great an amount as they desire, subject to the maximum of $3,000,000. Under the terms of the Act, some of the bonds might not be sold for thirty or even fifty years; they are to be sold only as appears necessary to the legislature.

Now, just what debt have the people authorized? Would the people have voted for the measure had they known that only $250,000 of the authorized amount would be expended within the first two years after the approval of Chapter 126? Would Chapter 126 have been approved by the people if they had known that $2,096,500 of the $3,000,000 authorization would be utilized during the first two years after its passage? These questions but suggest that the law that was submitted to the people does not itself create any debt. It does not advise the people of the contemplated program by which a debt — a specific obligation — is created. It simply is an effort to get authority from the people for future assemblies to create a debt in such amount, not exceeding $3,000,000, and at such time as they see fit. It does not meet the requirement of section 2, Article XIII, as interpreted in the Campbell Case. The claim that the case ofState ex rel. Bonner v. Dixon, supra, settles this question in favor of the Act, because there a similar Act was upheld where the specific obligation was not created by legislative Act approved by the people, but where the state board of education was empowered to determine the amount of the bond issue subject to the maximum of $5,000,000, cannot be sustained. The Act there considered, unlike Chapter 126, did not attempt to commit any part of the program to future legislation.

Also, Chapter 126 cannot be upheld for another reason. The Act[4, 5] does not specify, but only indicates in a general way, the purpose to which the funds shall be applied. In State exrel. Bonner v. Dixon, supra, this court held an Act valid which, as stated, was very similar to this one, but it is noteworthy that the Act was exclusively for specifically named educational institutions, and did not attempt to include wholly dissociated institutions, such as the state prison, the insane asylum, the tuberculosis sanitarium, or the soldiers' home, as beneficiaries of the fund. That case went the limit in upholding that Act as contemplating a single purpose. Two members of the court think the Bonner Case offended against the Constitution in that respect, but regard it as stare decisis as to its subject matter. The addition of the four institutions named in Chapter 126 that were not embraced in the Act in the Bonner Case deprives Chapter 126 of the requirement that it relate to a single purpose. Those four institutions are not in any sense educational institutions. Their affairs are not administered by the same officers or boards. Their purposes are wholly unrelated to the purposes of the institutions involved in the Bonner Case and which are again commingled in this Act. What possible relation can there be between the college of agriculture and mechanic arts and the insane asylum?

In State ex rel. Turner v. Patch, 64 Mont. 565,210 P. 748, 750, this court used the following language in defining the words "single purpose": "According to approved usage, then, the words ``single purpose' convey to the mind the idea of one object, project, or proposition — a unit isolated from all others. In other words, to constitute a single purpose, the elements which enter into it must be so related that, when combined, they constitute an entity; something complete in itself, but separate and apart from other objects." And in the case of State ex rel.Henderson v. Dawson County, 87 Mont. 122, 286 P. 125, 133, it was correctly said, in applying this constitutional provision to a single purpose, that "it is fundamental that a proceeding submitting two questions which are not naturally related in such manner that the elector must vote for or against both is invalid."

In considering and applying a similar constitutional limitation in the case of People ex rel. Hopkins v. Board ofSupervisors, 52 N.Y. 556, it is well said: "The Constitution would be of little value as a restraint upon the debt-creating power if it could be evaded by bringing together in one law distinct appropriations of different amounts, for a canal in one part of the state, in aid of a railroad in another, building a lunatic asylum in another, and a state prison and a normal school building in still other parts; and then a debt could be authorized for the single object of raising the money to pay the ``said appropriation.'"

"To ``specify' means ``to mention specifically; state in full and explicit terms; name expressly or particularly.' (Standard Dictionary; Peters v. Banta, 120 Ind. 416, 22 N.E. 95, 23 N.E. 84, 85.) It is an ordinary word used in common speech and generally understood; it must be given the understanding which the people who voted for the Constitution would give it. (Collins v. Kephart, 271 Pa. 428, 434, 117 A. 440.) ``Specific' is the very opposite of ``general.' (Smith v.McCoole, 5 Kan. App. 713, 46 P. 988, 989.) This Act of assembly is anything but specific; it is general in its terms. * * * The Constitution requires that every Act of assembly authorizing the borrowing of money shall specify the purpose, ``and the money so borrowed shall be used for the purpose specified and no other.' To issue bonds under this Act of assembly would be a plain violation of this constitutional provision, because there is no purpose specified by the Act. * * * The Constitution uses the word ``purpose' in the singular, and it requires that the borrowing of money shall be made by an Act of assembly which specifies a single purpose. * * * In brief, we agree that the Constitution demands that every Act which authorizes the creation of a debt shall state distinctly, without reference to other sources of information, a single purpose for which the money is to be borrowed." (Hollinger v. King,supra.)

"No more stringent or judicious provision could be devised to secure to the electors the information necessary to an intelligent expression of their will, and to enable them to act upon the merits of the proposition unembarrassed and undisturbed by interests and influences other than those connected with the character and importance of the single work or object for which it should be proposed to contract the debt." (People ex rel.Hopkins v. Board of Supervisors, supra.)

The suggestion that the Act can be sustained as providing revenue for a single purpose, to-wit, state buildings, is without merit. In section 5 of Article XIII is a prohibition against the incurring of a county indebtedness "for any single purpose to an amount exceeding ten thousand dollars ($10,000)," without approval of the electors. This limitation may not be evaded by dividing the total amount required for a single purpose, into several sums, each less than $10,000, and thus incurring the debt without approval of the electors. (Hefferlin v. Chambers,16 Mont. 349, 40 P. 787; Jenkins v. Newman, 39 Mont. 77,101 P. 625.) Is it possible that a county is enjoined from incurring a debt for $6,000 for enlarging its high school building, and at the same time a debt for $5,000 for enlarging its county jail, without approval of the electors on the theory that it is all for a single purpose, viz. county buildings? Is a county prohibited from incurring a debt for $6,000 for the construction of a building at the county fair, and at the same time contracting a debt for $5,000 for improvement of its buildings at the county poor farm without approval of the electors, on the assertion that the purpose is single because relating to county buildings? Does section 5 of Article XIII prohibit the county from improving a building occupied by its sexton in charge of its cemetery operated under section 4514, Revised Codes 1921, to the extent of $2,000, and at the same time authorize the incurring of a debt for $9,000 for improving its courthouse without the favorable vote of the electors, all because the two objects are in fact a single purpose — improvement of county buildings? The questions carry their own negative answers.

The Act before us cannot under any theory be sustained as one specifying a single purpose to which the funds shall be applied. It thus comes into conflict with section 2, Article XIII, and cannot stand.

Also the Act, we think, is void for failure to levy a tax. The[6, 7] command of section 2 of Article XIII is that the law creating the debt shall "provide for the levy of a tax sufficient to pay the interest on, and extinguish the principal of such debt within the time limited by such law for the payment thereof."

A tax levy is a legislative function, and the power to make it cannot be delegated to any administrative board or officer. (Cooley on Taxation, 4th ed., secs. 1012, 1013.) The authority may come from the Constitution which in exceptional cases will provide for the levy of a specific tax, or for a tax for some defined purpose; generally, the legislature is the only body which can levy taxes for state purposes. (Id., sec. 1013.)

Considering the constitutional provision of section 2 in the light of its purpose and specific language, it seems to us that, where an increase in taxation is inevitable if the law is approved, the increase in the rate must be specified so the people may vote advisedly. It cannot be that the Constitution, in view of the specific provision under consideration and related sections, can be held to permit the legislature to fix a tax rate without restriction. That construction would be contrary to the whole spirit of the Constitution. When the law which is to create the debt is submitted to the people, it must give them definite information as to the amount of the debt, the specific purpose for which the money is to be spent, and respecting the tax levy. This last is, if comparison is permissible, the most important of the provisions, for upon it rests the rate of interest to be paid, and the fund which shall extinguish the principal of the debt "within the time limited by such law for the payment thereof." It is essential that the people know to what extent the tax levy for state purposes, otherwise fixed and definite, shall be increased. They might be willing to approve a levy of a mill but averse to a levy of two mills, or five mills. They have a right to know the extent of their additional tax burden.

There is no specification in the law whatsoever as to the amount which shall be levied each year for deposit in the sinking fund. It is entirely possible, within the terms of the Act, to levy a nominal amount during the second decade and to do the same during a portion of the third decade; then, attempting to levy a sufficient tax to retire the bonds, which might prove practically impossible, we would find the state carrying a huge debt which it would be unable to pay without a Refunding Act. Section 2 of Article XIII of the Constitution is designed to prevent such a possibility.

"A constitutional provision may be said to be self-executing[8] if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law." (Cooley's Const. Limitations, 7th ed., p. 121, quoted in State ex rel. Bennett v. State Board of Examiners, 40 Mont. 59, 104 P. 1055, 1057.)

As will be seen, the Act in question does no more in legal effect than follow the language of the Constitution. Section 7 says simply "that there shall be levied annually upon all property in the State of Montana subject to taxation an advalorem tax upon each dollar of the assessed valuation of such property sufficient to pay the interest accruing on said bonds for the first ten (10) years after their issuance, and sufficient thereafter to pay the interest on said bonds and to provide an adequate sinking fund for their redemption." Levied by whom, and in what amount?

As well might it be said that compliance with section 12 of Article XII, containing similar language with reference to the tax levy, may be had by Act of the legislative assembly simply copying the words of the Constitution in the Act. There cannot be any imposition of a tax without the rate or amount being fixed. An undetermined tax is no tax, as this court, quoting from Cooley on Taxation, said in State ex rel. Bennett v. State Board ofExaminers, supra. Under this law the rate has not been fixed and the amount has not been fixed. The amount is simply $3,000,000, which may or may not become an indebtedness, depending upon the sale of the bonds. Furthermore, as the court said in the BennettCase: "The legislature is the only body that can fix the rate of taxation within the limitations declared. The rates mentioned are merely the limits beyond which the legislature cannot go. To leave it to the Board of Equalization to say whether or not taxes shall be collected at this or that rate would be a delegation of legislative power to that board. The legislature cannot delegate its power to any person or body of persons whomsoever (State v.Holland, 37 Mont. 393, 96 P. 719); and hence, the fixing of the rate being a legislative function, the Board of Equalization could not lawfully be clothed with authority to determine the rate upon any contingency whatsoever."

The scheme provides that interest shall be paid on each bond from the date of its issuance for ten years, and then there is to be an additional tax for a sinking fund; but there is no limitation whatever upon the amount of the levy. It is argued that the legislative assembly may be expected to levy an adequate tax each year. The answer is that, if the rate of the tax levy is to be fixed by succeeding legislatures, the Act is void. To this all members of the court agree. Suppose the legislature did have the power to fix the rate; the terms of the Act permit the sale of these bonds at indeterminate periods; it is possible to withhold the sale of some of them until after the expiration of thirty or even fifty years. But, if all are sold within thirty years from the year 1931, but at different periods, there will be different dates of issuance, different dates when the bonds are redeemable and payable, and different levies for the sinking fund; in short, the tax levy would vary, and might vary greatly during the life of the bonds. The tax must be levied by the legislature, and necessarily the amount to be levied would be in its discretion.

But the legislature cannot fix the rate. It can only levy the rate fixed by the law, and the law has not fixed it.

It is argued that, in view of the case of State ex rel.Lyman v. Stewart, 58 Mont. 1, 190 P. 129, wherein similar language was held to constitute a levy, Chapter 126 is sufficient in this respect. But in the Lyman Case the Act, unlike Chapter 126, did fix a maximum rate of taxation. It was urged in that case by counsel seeking to uphold the Act that the maximum rate became the controlling rate until a sufficient amount was raised to discharge the principal and interest, and that not until then was it subject to change, at which time it should be discontinued altogether. The opinion in that case does not disclose whether this view was adopted by the court. On the basis that the Act there considered did fix a definite rate, the Act was properly upheld, otherwise not.

There are cases which hold that language similar to that used in section 7 of this Act is sufficient to constitute the levy of a tax, particularly where administrative officers are empowered and authorized, either by the Act itself or by existing laws, to fix the rate. Among them may be cited: Morton-Bliss Co. v.Comptroller, 4 S.C. 430; City of Boise City v. Union Bank Trust Co., 7 Idaho, 342, 63 P. 107; Pettibone v. WestChicago Park Commrs., 215 Ill. 304, 74 N.E. 387; Howland v.Board of Supervisors, 109 Cal. 152, 41 P. 864; Allen v.Cromwell, 203 Ky. 836, 263 S.W. 356; Pelo v. Stevens, 66[9] Misc. Rep. 35, 120 N.Y. Supp. 227. We have a statute (sec. 2149, Rev. Code 1921) which attempts to confer that authority upon the state board of equalization, but whether that section can be upheld in view of what was said in the Bennett Case need not here be considered.

It is plain from a reading of all of Chapter 126 that it was the intention of the framers of that Act not to make provision for the levy of a tax in the Act itself, but to commit that responsibility to future legislative assemblies. It simply makes a promise that provision will be made in the future for creating a sinking fund. That is made plain by section 3 of the Act, which provides: "And provided further that interest only shall be paid on said bonds for the first ten (10) years after their issuance, and that thereafter provision shall be made for a sinking fund adequate for the redemption of said bonds pursuant to their terms." The word "thereafter" has reference to a time after ten years have elapsed from the date of the issuance of the bonds. The legislative assembly has apparently construed the Act as we have, for by Chapter 185, Laws of 1931, it has made a levy of five-twelfths of a mill for the years 1931 and 1932.

It is well to call to mind the fact that all prior laws of this character have specified the rate of taxation in unmistakable terms, with the possible exception of State ex rel.Lyman v. Stewart, supra.

The city and county cases cited, wherein Acts similar to this one have been held to levy a tax, are not authority in support of the claim that this Act does so. City and county officers may be compelled by mandamus to make the proper levy. But the legislative assembly may not be controlled by mandamus. And in none of the cases cited do we find language such as appears in section 3 of Chapter 126, which indicates indubitably that the intention of the framers of the Act was to have future legislative assemblies — not an administrative board — make provision for a sinking fund to retire the bonds.

In attempting to delegate to future legislative assemblies the duty of creating a sinking fund, the Act violates the provisions of section 2, Article XIII. One of the most important elements required by that section to be irrepealable is the provision for the levy of a tax sufficient to discharge the debt at its maturity. The entire scheme contemplated by Chapter 126 was to procure an indefinite authorization from the people that future legislative assemblies might work out all the details of the debt about to be created, and make provision for its payment. This was attempted by Chapters 185 and 186, Laws of 1931. But the Constitution requires the law creating the debt and providing for the levy of a tax to discharge it shall have the approval of the people. It is the complete law, protected from legislative change or modification, that the people were called upon to approve or disapprove, not the question whether authority should be given the legislature to do something in the future, to supply what is left uncertain in the law. In adopting the Constitution, the[10] people placed limitations upon themselves as well as upon the legislature.

"Where a legislative Act is attacked on the ground of its[11] unconstitutionality, the question presented is not whether it is possible to condemn it, but whether it is possible to uphold it, the presumption being in favor of its validity, and it must be upheld unless its unconstitutionality appears beyond a reasonable doubt. (Martien v. Porter, 68 Mont. 450,219 P. 817; State ex rel. Diederichs v. State Highway Com., 89 Mont. 205,296 P. 1033.)" (Arps and Cottle v. State Highway Com., ante, p. 152, 300 P. 549, 557.)

As was correctly stated in the case last above cited (the[12] Highway Debenture Case), "the function of the judiciary is to give effect to the legal acts of the legislature, not to supervise them. (Myrick v. Peet, 56 Mont. 13, 180 P. 574.)" However, where there is a plain violation of constitutional mandates, it is the duty of the court to apply the constitutional restrictions which the people have placed upon themselves, irrespective of the expediency or desirability of upholding any legislative enactment. If we declare the Act in question — indefinite, uncertain, and without specific time limit, without any provision except the fiat "there shall be levied an adequate tax" — within the provisions of section 2, that section of the Constitution may as well be relegated to the realm of forgotten things.

As we said in State ex rel. Diederichs v. State HighwayCommission, supra: "We have reached this decision with a due sense of its great importance and only after a faithful effort to sustain the law." The language therein following that sentence need not be repeated, but is as appropriate to this case as it was to that.

It follows that the injunction prayed for must issue, and it is so ordered.