DocketNumber： No. 13,433.
Judges： Burke, Adams, Butler
Filed Date： 3/12/1934
Status： Precedential
Modified Date： 11/3/2024
delivered the opinion of the court.
The Governor’s call for the present extraordinary session of the General Assembly refers to his call for the former session, recites that the emergency therein mentioned “has become even more serious and aggravated,” that it is necessary to enact legislation “to allay the present wide-spread public discontent and social unrest * * * to prevent disaster in this critical emergency” and “to defend the State.” Then, as provided by section 9 of article IV of the state Constitution, it enumerates the purposes for which the session is called. These are embodied in 19 paragraphs, the first of which reads: “To provide adequate revenues; to make loans and accept grants from the Federal Government; to provide for the financing, construction, repair and improvement of necessary public highways, public building’s and other public works and to authorize the issuance and sale to the Federal Government of debentures or other obligations of the State in connection therewith, and to do any and all other things which shall be deemed necessary to enable this State to meet its obligation to provide relief for the unemployed, indigent and destitute people of this State by means of direct relief or work relief, or both, and to cooperate with the Federal Government in its unemployment relief and National Industrial Recovery programs, and to repeal all acts or parts of acts inconsistent or in conflict with any laws which shall be enacted to accomplish these purposes.” The title of House Bill No. 6 is, “A bill for an act to provide for emergency relief and to provide for employment quickly and to defend the
The following quotations from the Bill show its general purpose and present so much of its body as is necessary to the present consideration:
“Section 1. A critical emergency, arising out of the present economic depression, which has caused widespread unemployment and consequent indigence and dependence on the part of a large portion of the people of the State of Colorado, and has made hopelessly inadequate federal, state and local relief funds, and has caused distress and hunger in such a degree that the public peace, order, tranquillity and safety are seriously affected and endangered and the processes of orderly government itself imperiled, is hereby declared to exist.
“Therefore it is hereby declared to be the policy and purpose of the General Assembly to allay the present wide-spread public discontent and social unrest, to relieve the needy and destitute citizens of this State from want and privation by making provision for work relief in the form of highway construction, repairs and improvements as authorized by this Act, and thus to protect and defend the State.
‘ ‘ Section 2. As a means of carrying out the purposes of Section 1 hereof and to enable this state to avail itself of the provisions of the Act of Congress approved June 16, 1933, known as The National Industrial Recovery Act, or other acts of Congress, and to effectuate the purposes of this Act, the Governor of the State of Colorado is hereby authorized until January 1, 1935, (1) to construct, finance, or aid in the construction and financing of, public highways; (2) to enter into agreements
“Said loans shall be negotiated by the issuance and sale to the United States of America of highway debentures of the State of Colorado in sucb serial form, in such amounts, not exceeding- in the aggregate Ten Million Dollars ($10,000,000.00), payable semi-annually at-such times not exceeding twenty years after date, and’ bearing such interest, not exceeding four per centum per annum, payable semi-annually, all as the Governor of the State of Colorado may determine. No such debentures shall be issued after December 31,1934. Said debentures shall be payable to bearer * * *. Immediately upon the registration of said debentures by the Auditor of State, he shall deliver the same to the State Treasurer and charge the amount of the purchase price thereof to-said State Treasurer as money received by the State Treasurer in the State Highway Fund of the State of Colorado * * *.
“Section 3. There is hereby created in the office of the State Treasurer a fund to be known as the ‘State Highway Debenture Redemption Fund’; for the purpose of paying the principal of and the interest to accrue upon the debentures issued under the provisions of this Act.
“Beginning six months in advance of each interest payment date, as fixed by each debenture issued pur
“Section 4. The amount of money accruing in the treasury of the State of Colorado from said excise tax on motor fuels, as provided in Section 3 of this Act, and equaling the amount of debentures which may be issued and outstanding, with interest thereon, and as collected and accumulated in said State Highway Fund in the manner in said Section 3 provided, is hereby appropriated to, set apart for and shall be paid into and transferred to said State Highway Debenture Redemption Fund, and all moneys accruing or to accrue in the manner set out in this Act for said fund, are appropriated exclusively tó and for the payment of said debentures and the interest thereon.
“Section 5. The application and transfer of said moneys arising from said excise tax, as hereinbefore provided, is and shall be a claim and charge on and an application of the same prior and superior to any other charge, claim or application thereof, * *
“Section 7. The State Treasurer is.hereby authorized, directed and empowered, upon the respective maturities of said debentures and the interest thereon, or the coupons representing 'interest thereon, if coupon dehen
“Section 9. The issue and sale of said highway debentures shall constitute an irrevocable contract between the State of Colorado and the United States of America, and the owner or holder of any of said debentures, that the said excise tax on motor fuels at the rate of four cents per gallon, now in force and effect, shall not be reduced below the amount which the State Treasurer is now required to credit to the State Highway Fund * * *, so long as any of said debentures remain outstanding ánd unpaid, either as to principal or interest, and that the State of Colorado will cause said tax to be promptly collected and sufficient thereof set aside and applied to pay said debentures and the interest thereon promptly according to the terms thereof; and until all said debentures and the interest thereon shall be fully paid, no law shall be enacted repealing said Act approved April '8, 1933, being Chapter 140 of the Session Laws of Colorado, 1933, nor shall said chapter be amended in such manner as to render impossible or impracticable the making of transfers of funds as in this Act provided, in amounts sufficient to meet the requirements of this Act. However, the issue of said debentures shall not constitute a general obligation of the State" of Colorado, but shall be payable solely from the excise tax pledged for the payment thereof.” "
“ Section 17. The General Assembly hereby finds, determines and declares this Act to be necessary for the immediate preservation of the public peace, health and safety, and to defend the State.
“Section 18. In the opinion of the General Assembly an ! emergency exists; therefore, this Act shall take effect and be in force from and after its passage.”
'■' The interrogatories now before us are introduced by á .recitation of the title of House Bill Ho. 6, a statement that.it has passed the. House and passed the Senate on second reading;■ that,- if-deemed constitutional,'it will
“1. Does House Bill No. 6 fall within the purview of the Governor’s Proclamation calling the Second Extraordinary Session of the Twenty-Ninth General Assembly ■of the State of Colorado as provided by Section 9 of Article IV of the Constitution of the State?
“2. Does House Bill No. 6 provide for the creation of •a debt of the State within the meaning of Sections 3 and 4 of Article XI of the Constitution of the State of Colorado?
“3. If the answer to question 2 be in the affirmative, ■does said House Bill No. 6 violate Section 3 of Article XI or Section 16 of Article X of the Constitution of the State of Colorado, notwithstanding the recitals contained in Sections 1 and 17 of said House Bill No. 6?
“4. If the answer to question 2 be in the affirmative, •does said House Bill No. 6 contravene Section 4 of Article XI of the State Constitution providing that
‘In no case shall any debt above mentioned in this article be created except by a law which shall be irrepealable, until the indebtedness therein provided for shall have been fully paid or discharged; such law shall specify the purposes 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
“5. Does House Bill No. 6 contravene any of the following provisions of the State Constitution?
(a) Section 2, Article X, which provides:
‘The General Assembly shall provide by law for an annual tax sufficient, with other resources, to defray the estimated expenses of the State Government for each fiscal year. ’
(b) Section 11, Article X, which provides:
‘The rate of taxation on property, for State purposes, shall never exceed four mills on each dollar of valuation. ’
(c) Section 16, Article X, which provides:
‘No appropriation shall be made, nor any expenditure authorized by the General Assembly, whereby the expenditure of the State, during any fiscal year, shall exceed the total tax then provided for by law and applicable for such appropriation or expenditure, unless the General Assembly making such appropriation shall provide for levying a sufficient tax, not exceeding the rates allowed in Section eleven of this article, to pay such appropriation or expenditure within such fiscal year. This provision shall not apply to appropriations or expenditures to suppress insurrection, defend the State, or assist in defending the United States in time of war.’
(d) Section 33, Article Y, which provides:
‘No money shall be paid out of the treasury except upon appropriation made by law, and upon warrant drawn by the proper officer in pursuance thereof. ’
(e) Section 34, Article Y, which provides:
‘No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person,
“6. Does said House Bill No. 6 contravene Article III of the State Constitution by conferring on the Governor the exercise of non-delegable powers properly belonging to the legislative department?
“7. Does the General Assembly have power to confer upon, or delegate to, the Governor the powers described in Sections 2,11, and 12 of House Bill No. 6?
‘ ‘ 8. Does the General Assembly have the power, by said House Bill Ño. 6, to declare, as provided in Section 9 thereof, in substance, that so long as any debentures authorized thereby remain outstanding and unpaid, either as to principal or interest,
(a) The issue and sale of such debentures shall constitute an irrevocable contract between tlie State of Colorado and the United States of America, and the owner or holder of any of said debentures, that the excise tax on motor fuels at the rate of four cents per gallon now in force, shall not be reduced below the amount which the State Treasurer is now required to credit to the State Highway Fund under the provisions of Chapter 140 of the Session Laws of Colorado, 1933;
' (b) That the State will cause said tax to be promptly collected and sufficient thereof set aside and applied to pay said debentures and the interest thereon promptly according to the terms thereof; and
' (c) No law shall be enacted repealing said Chapter 140 of the Session Laws of Colorado, 1933, nor shall said chapter be amended in such manner as to render impossible or impracticable the making of transfers of funds as-provided in said House Bill No. 6, in amounts sufficient to meet its requirements ? ‘ ■ ■
“9. Áre the taxes laid by Chapter 140, Session Laws, 1933, excise taxes or property taxes? Is the limitation imposed by Section 11 of Article X of the Colorado Constitution applicable thereto ? - ; ’
‘ ‘ 11. If the answer to question 10 be in the affirmative, would such unconstitutionality render invalid the whole of said Chapter 140, or that part of said sub-section (b) of Section 10 thereof which provides that the State Treasurer ‘shall pay seventy per cent (70%) to the credit of the State Highway Fund, ’ particularly in view of the provisions of Section 19 of said chapter?
“12. Does Section 3 of said House Bill No. 6 extend into said House Bill No. 6 the provisions of Chapter 140, Session Laws, 1933, in contravention of Section 24 of Article V of the Colorado Constitution?
“13. Does said House Bill No. 6 authorize the issue of valid obligations to be known as highway debentures of the State of .Colorado, substantially of the character and manner described in said House Bill No. 6?”
Section 3 of Article 6 of the Constitution directs that our opinion be given, when required by the governor, the senate or the house, “upon important questions upon solemn occasions.” What are such the court must ultimately determine for itself. In Re Appropriations, 13 Colo. 316, 22 Pac. 464; In Re Penitentiary Commissioners, 19 Colo. 409, 35 Pac. 915; In Re Senate Bill No. 416, 45 Colo. 394, 101 Pac. 410.
The present occasion we deem solemn, and some of the questions important, all of which so clearly appears herein as to require no further elucidation; and that said House Bill No. 6, assuming for this purpose only its con
To the thirteenth interrogatory our answer is “No,” for the reasons hereinafter given in our answers to the second and third.
That portion of said section 3 of article XI here involved reads: ‘ ‘ The state shall not contract any debt by loan in any form, except to provide for casual deficiencies of revenue, erect public buildings for the use of the state, suppress insurrection, defend the state, or, in time of war, assist in defending the United States; * *
The second question, briefly stated, is, Does said House Bill No. 6 “contract any debt by loan in any form”? If it does, the third question, so stated, is, Is that debt contracted to “defend the state”?
Before attempting to answer these, two general rules of constitutional construction, with the reasons on which they rest, should be noted.
The first of these is that every statute, duly passed, must be held constitutional unless the contrary appears beyond a reasonable doubt. Chicago, B. & Q. R. Co. v. School Dist., 63 Colo. 159, 165 Pac. 260; Broadbent v. McFerson, 80 Colo. 264, 250 Pac. 852. The reasons for this rule are found in the presumption that public officials, in the discharge of their duties, have acted lawfully; and the fact, of which the courts take judicial notice, that members of the General Assembly have taken an oath to support the state Constitution. Hence follows the presumption that they have not passed an act which violates the fundamental law. It therefore clearly appears that an equally binding rule of legislative conduct is that that department shall pass no law whose constitutionality is a matter of grave doubt, and that if the General Assembly ignores that rule the reason for the judicial presumption of constitutionality disappears and the courts are thus greatly embarrassed in the discharge of the duty devolving upon them. 1 Cooley’s Constitutional Limitations (8th Ed.) p. 375.
The second general rule of constitutional construction is that the language of 'Constitutions must, so far as possible, be given its ordinary meaning, and the words thereof their common interpretation. The records of conventions which framed them are resorted to only when other guides fail. In interpreting a law we endeavor to ascertain the intent of those who adopted it. Hence the importance of legislative intent in the interpretation of statutes. 59 C. J., p. 1017, §605. But our Constitution was .not adopted by a convention. Tt is, therefore, not what the members of that convention said or did, when drafting" the document for submission to the people, but what the people believed it meant when they accepted it as their fundamental law, which primarily must guide the courts in their interpretation. Carton v. Sec’y of State, 351 Mich. 337, 351, 115 N. W. 429, 439; Newell v. People, 7 N. Y. 9, 97; State v. Romero, 17 N. M. 88, 100, 125 Pac. 617; Beardstown v. Virginia, 76 Ill. 34; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; M’Culloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579.
Examining now the second interrogatory in the light of these well recognized rules what have we? Here is a bill which, by its express terms, is “to borrow money in the aggregate amount of not more than $10,000,000, ’ ’ “to execute and deliver such instruments of writing, evidencing such loans,” “to repay such loans and the agreed interest thereon.” A bill which provides that taxes already imposed are “hereby appropriated to, set apart for and shall be paid into” a fund created and maintained for the repayment of the millions so borrowed. A bill which becomes ‘ ‘ an irrevocable contract, ’ ’
In examining this position it must be remembered that the act allocates to the payment of the debt, not anticipated revenue from an improvement or industry created by the act, nor even revenue from a source first tapped by it, but revenue already provided in past years, and at present flowing into the state treasury at the rate of millions of dollars per annum.
Since the purpose of section 3 of article XI is to prevent the pledging of revenues of future years, a statute which at the same time it creates a debt, creates the fund to pay it, and which fund would not be otherwise available for general purposes, is clearly outside the
In such cases the improvement is paid for solely out of the value which it adds to the property of the taxpayer.
Into the same class, and just as clearly, fall debts for public utilities to be paid for from the proceeds of the utility. Shields v. City of Loveland, 74 Colo. 27, 218 Pac. 913; Searle v. Town of Ilaxtun, 84 Colo. 494, 271 Pac. 629; Reimer v. Town of Rolyohe, 93 Colo. 571, 27 P. (2d) 1032. In such cases the utility is paid for solely out of the revenue it produces, or extensions and improvements (if for such the debt is contracted) are paid for out of the increased revenue which they produce. The Beimer case, supra, clarifies the others, holding any impairment of the general municipal revenues violates the prohibition, and that “any obligation paid or contracted to be paid, out of a fund that is the product of a tax levy is a debt within the purpose of the constitutional limitation.” These cases arose under section 8 of article XI which imposes upon municipalities the same restrictions, in the same language, as said section 3 imposes upon the state. They fall within the general constitutional policy as heretofore interpreted by this court. People v. May, 9 Colo. 404, 12 Pac. 838; Goodykoontz v. People, 20 Colo. 374, 38 Pac. 473.
It is said that this bill can be sustained on the theory
We doubt not the bill contracts a debt by loan in one form. Is that debt contracted to defend the state? On this question the declarations of the executive and legislative departments of the state government, while probably persuasive, are not binding here. If they were, the Constitution would cease to have even the force of a statute. If the people’s “Thou shalt not,” can be brushed aside by the simple ipse dixit of their servants thus bound, the mandate is impotent. Such a construction, once adopted, breaks the barrier, and future legislatures, protected by the precedent, might pile up mountains of debt on future generations, resulting in inevitable impoverishment or ruthless repudiation. Marburg v. Madison, 1 Cranch. 137, 2 L. Ed. 60; Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205, 8 Sup. Ct. 273; Lochner v. New York, 198 U. S. 45, 49 L. Ed. 937, 25 Sup. Ct. 539; Van Kleeck v. Ramer, 62 Colo. 4, 156 Pac. 1108. While the last case upholds the power of the General Assembly, by declaration, to exempt an act from the- provision of the constitutional referendum, it clearly repudiates its power to bring prohibited legislation within its jurisdiction by the same method.
Despite such definite declarations of the United States Supreme Court as are found in Ex parte Milligan, 4 Wallace 2, Boyd v. United States, 116 U. S. 616, 635, 29 L. Ed. 746, 6 Sup. Ct. 524, and similar cases, that ancient heresy, that whatever is d.eemed necessary by those in authority is lawful, has returned in these days of distress, as justification for so-called emergency legislation, whose unconstitutionality, in times of prosperity, would be conceded. It has been given new life in recent years by such cases as Bloch v. Hirsh, 256 U. S. 135, 65 L. Ed. 865, 41 Sup. Ct. 458; Marcus Brown Co. v. Feldman, 256 U. S. 170, 65 L. Ed. 877, 41 Sup. Ct. 465, and Levy Leasing Co. v. Siegel, 258 U. S. 242, 66 L. Ed. 595, 42 Sup. Ct. 289. Their influence is here reflected in portions of the arguments before us, as well as in the opinion of the Attorney General given the Senate upholding the constitutionality of the bill. Therein he says: “It is also important to note that said House Bill No. 6 is an emergency measure,” and closes with the statement “It is our opinion that House Bill No. 6, if enacted into law, as an emergency measure, would be, in all respects, valid and constitutional." On this point our own conclusions,
It has been said, in substance, that this bill, by a “broad” construction, may be squared with the Constitution, and that only by a “narrow” construction can it be made repugnant thereto. That position rests upon an erroneous interpretation of those terms, and follows the popular fallacy that, all interpretation which upholds legislation is broad and all which overthrows it is narrow. Whether constitution or statute is involved, that interpretation which, brushing aside minor objections and trivial technicalities, effectuates the intent of the act, is a broad interpretation, and that which, regarding such objections and technicalities, fails to do so, is narrow. Here we are called upon to interpret not the bill, but the Constitution. The purpose of the people in adopting the section involved is clear, i. e., to keep the state substantially on a cash basis, to prohibit the pledge of future fixed revenues, to forbid the contracting* of debts which must be paid therefrom, and to make certain that one general assembly shall not paralyze the next by devouring the available revenues of both. People v. May, 9 Colo. 80, 10 Pac. 641; Parsons v. People, 32 Colo. 221, 76 Pac. 666. Hence the construction which resorts to technical terms and fine distinctions to frustrate that intent is narrow, and that which imports its common meaning to simple language to effectuate that intent is broad. We must not be frightened by mere words.
Our answers already given to those interrogatories hereinbefore considered make it unnecessary to answer the remainder. They cease to be “important questions” as that term is used in the Constitution. To properly answer them would require “a wholesale exposition of all constitutional provisions relating to a given general subject” (i. e. Bevenue). Such an exposition does not
Before concluding this opinion it seems proper, in view of the many past instances as disclosed by our reports of executive and legislative misunderstanding of the scope and purpose of said section 3 of article VI, to say that the present interrogatories, so far as herein answered; the crucial points of the bill involved; the crisis in its passage at which the court’s opinion was sought; and the method followed in presenting the problem here; sg clearly follow the Constitution as heretofore interpreted, and present the vital questions so fully and fairly, as to supply a model for future proceedings when either House may deem it wise to invoke the provisions of said section 3.
Some comment on the position and labors of counsel in this case seems likewise appropriate. Amici curiae are not volunteers herein, nor do they represent, directly or indirectly, private interests. They were appointed by this court with an eye single to the service they might render the state. While we knew nothing of the views they then held, if any, respecting' the validity of the proposed act, we had reason to believe that, if the questions were close, they might not be in accord, and that in any event every important phase of the problem would be ably elucidated by some of them. In this we have not been disappointed. It happens that each has reached the conclusions herein announced, though differing to some extent in their reasoning, and not in harmony on certain of the interrogatories which we have considered it unnecessary to answer. Their time and talents have been contributed without compensation. The Attorney General advises us that the same is true of his special assistants who appear at the request of himself and the Governor, while he and Ms regular staff have been tire
Interrogatories 1, 2, 3, answered in the affirmative, interrogatory 13 in the neg’ative, and the Bill held unconstitutional.
Mr. Chief Justice Adams, Mr. Justice Campbell and Mr. Justice Hilllyrd concur.
Mr. Justice Butler, Mr. Justice Bouok and Mr. Justice Holland dissent.