State ex rel. Moore v. Banks

BUDGE, C. J.

— This is an original action for writ of mandate to compel defendant, State Treasurer, to issue and sell certain refunding bonds under the provisions of an act of the Seventeenth Session of the Legislature, designated as House Bill 129, Sess. Laws 1923, p. 105. The application for the writ alleges that there is $776,500 of outstanding bonded indebtedness which should be refunded because it would result in a saving to the state. An alternative writ was issued and defendant made his return thereto in which he justified his refusal to act upon the alleged ground that the statute is unconstitutional. Plaintiff demurred to the return, and the case was heard and submitted upon the demurrer. The provisions of the act are as follows:

“Section 1. The state treasurer, with the approval of the governor, is hereby authorized and directed to compromise and refund the bonded indebtedness of the state of Idaho, or any portion thereof, whenever it may be done at a saving to the state, by issuing and selling refunding bonds pledging the full faith and credit of the state of Idaho; Provided, That such refunding bonds do not bear a rate of interest greater than that borne by the bonds to be refunded nor run for a period greater than twenty years; and Provided, further, That the total amount of such refunding bonds issued at any one time does not exceed the total amount of bonds to be refunded at such time.

“See. 2. The refunding bonds referred to in Section 1 of this act may be sold for cash only, and to the highest and best bidder at a public sale advertised for at least five days prior to such sale; Provided, However, That any and all bids may be subject to rejection.

“Sec. 3. There is hereby created a fund in the state treasury to be known as the ‘Bond Refunding Fund.' All moneys received from the sale of refunding bonds in accordance with the provisions of this act shall be by the state treasurer deposited to the credit of such fund. The bonds to be retired and paid shall be paid from any moneys in such fund, and an appropriation is hereby made for such purpose from any moneys that may accrue to such fund; ....

‘ ‘ Sec. 4. "Whenever refunding bonds have been sold and the bonds are ready for delivery, the state treasurer shall advertise in at least one issue of a paper published in New York City, and any other papers he may consider necessary, an official notice calling the bonds to be retired and paid, stating that interest will cease on the next coupon due date, and that the principal and interest of such bonds will be paid at the office of the state treasurer or at the office of the fiscal agent of the state of New York, on or after the next interest due date.

‘ ‘ See. 5. There is hereby appropriated out of any moneys in the general fund of the state treasury, not otherwise appropriated, the sum of three thousand dollars, to pay any expense, including legal services, incident to the negotiation and sale of general fund treasury notes and refunding bonds.....”

The constitutionality of this act is questioned. It is first contended that section 5, appropriating moneys out of the general fund to pay expenses incident to the negotiation and sale of general fund treasury notes and refunding bonds, is in violation of sec. 16, art. 3, of the constitution, which provides that:

“Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act’ shall be void only as to so much thereof as shall not be embraced in the title.”

An examination of the title and the act discloses that the subject is embraced in both and therefore in compliance with sec. 16, art. 3, but the act is still repugnant to that section, for the reason that it embraces more than one subject and matters properly connected therewith. The negotiation and sale of general fund treasury notes and the negotiation and sale of refunding bonds are two separate and distinct subjects. The former has nothing to do with the indebtedness of the state (State v. Eagleson, 32 Ida. 276, 181 Pac. 934; State v. Eagleson, 32 Ida. 280, 181 Pac. 935), while the latter has. The former is in no sense properly connected with the latter. The acts are individualized. Each is independent of the other and neither can be, by fair intendment, considered as falling within the same subject matter legislated upon or necessary as ends and means to the attainment of each other. Neither is directly or indirectly related to the same subject. In the case of Hailey v. Huston, 25 Ida. 165, 136 Pac. 212, this court, in discussing see. 16, art. 3„ with reference to an appropriation act increasing the compensation of the librarian of the State Historical Society, where the title of said act or the act failed to repeal a prior act fixing the salary for such officer, in the course of that opinion says:

“The subject of the increase of any salary is not expressed in the title of the appropriation act, and as that subject is not expressed in the title of the act, an increase of salary cannot be included in such act. And if it were included in the title to said act, the act would be obnoxious to the constitution under another provision of sec. 16, which declares that every act shall embrace but one subject and matters properly connected therewith. A general appropriation act includes one subject and an increase in the salary of an officer is another and distinct subject, and being two separate and distinct subjects, they are prohibited from being combined in one act by the provisions of said section.”

With more logic it can be said that the Hailey-Huston case presents a better reason for holding that there were not two subjects than does the instant case. We are unable to conceive of any logical reason that could be offered which would support the theory that the negotiation and sale of treasury notes and the refunding of outstanding state bonded indebtedness embrace but one subject and matters properly connected therewith.

See. 16, art. 3, positively prohibits embracing in the same act more than one subject and matters properly connected therewith, and where this is done the act is absolutely void even though done by the legislature with full knowledge. From an examination of House Bill 129, supra, and Senate Bill 98, 1923 Session Laws, page 106, passed on the same day, it is clear that the provisions of section 5 of House Bill 129 were surreptitiously amended. Senate Bill 98 is an aet complete in itself, providing for the negotiation and sale of general fund treasury notes but carries no appropriation. In House Bill 129, an appropriation is provided for the payment of expenses incidental to the sale of general fund treasury notes and refunding bonds. It may be that the legislature refused to pass Senate Bill 98, carrying an appropriation to pay the expenses incident to the negotiation and sale of treasury notes, and in order to obviate this difficulty there was slipped into House Bill 129 the words “general fund treasury notes.” With these words eliminated, the act would relate solely to refunding bonds. The fact that it cannot be ascertained from the act how much was appropriated for the negotiation and sale of general fund treasury notes and how much was appropriated for the negotiation and sale of refunding bonds may afford an additional reason for holding the same void. This clause could have been inserted in any other act and it would have been just as consistent to hold that there was but one subject and matters properly connected therewith. Since there are two subjects embraced in the act and matters not properly connected therewith, clearly this act is repugnant to and in violation of sec. 16, art. 3, of the constitution and the entire act must fall. The principle of law announced by this court in Pioneer Irr. Dist. v. Bradley, 8 Ida. 310, 101 Am. St. 201, 68 Pac. 295, is peculiarly applicable to the situation before us, wherein the court says: “The object and purpose of said constitutional provision is well understood. It was to prohibit the practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection; to prohibit ‘hodgepodge’ or ‘logrolling’ legislation. (Cooley’s Constitutional Limitations, 172.) It was to avoid improper influences which may result from an intermingling in one and the same bill such things as have no proper relation to each other.”

We think the act is subject to another very serious, if not fatal objection, in this, that it fails to provide that the refunding bonds shall be sold at face or par value and accrued interest. Under this act, the treasurer, with the approval of the Governor, may sell these refunding bonds at less than par and accrued interest. The act also fails to provide ways and means for the payment of interest as it falls due and also for the payment and discharge of the principal debt, namely, the refunding bonds. The act further provides that these refunding bonds may run for a period not greater than twenty years. Certain of the bonds sought to be refunded are payable at the option of the state at the end of ten or twenty years. The act does not repeal or amend former acts providing for the issuance and sale of the original bonds but in terms extends the date of payment within the discretion of the State Treasurer with the approval of the Governor to a period of twenty years, thereby denying the right of the state to exercise its option or to pay off the bonds whenever there shall be funds for that purpose as provided in former acts. (1911 Sess. Laws, 104; 1913 Sess. Laws, 489.)

The issuance of a writ of mandate is discretionary and 'when there is grave doubt justifying its issuance this discretion should not be exercised.

! It is ordered that the alternative writ be quashed and the action dismissed.

Dunn and Wm. E. Lee, JJ., concur.