Fleckten v. Lamberton

• Decision Date: 01 July 1897
• Docket Number: 10,593--(196)
• Parties: SWAN J. FLECKTEN and Others v. H. W. LAMBERTON and Others
• Court: Minnesota Supreme Court

72 N.W. 65

69 Minn. 187

SWAN J. FLECKTEN and Others v. H. W. LAMBERTON and Others

Nos. 10,593--(196)

Supreme Court of Minnesota

July 1, 1897

Appeal by plaintiffs from an order of the district court for Ramsey county, Williston, J., sustaining the demurrer of defendants to the complaint on the grounds that it does not state a cause of action, and that plaintiffs have not legal capacity to sue. Affirmed.

The order appealed from is affirmed.

John F Kelly, for appellants.

H. W Childs and George B. Edgerton, for respondents.

OPINION

CANTY, J.

This action was brought by the plaintiffs, taxpayers and residents of this state, against the state board of capital commissioners, and the members thereof, to enjoin them from erecting the new capitol provided for by chapter 2, Laws 1893, on the ground that said board is misappropriating public funds in erecting the same, contrary to the provisions of the constitution. From an order sustaining a demurrer to the complaint, plaintiffs appeal.

Said chapter 2 provides for the appointment of a board, which shall select a site in St. Paul for the erection of a new capitol building, purchase the same, and erect thereon such new capitol building. Section 7 provides:

"There shall be transferred in each of the years 1893 and 1894 from the general fund to the credit of the board of state capitol commissioners the sum of five thousand dollars, and in each succeeding year after the year 1894 until the completion of said capitol building, not exceeding ten years, a sum equal to the proceeds of a levy of two-tenths of a mill upon the assessed valuation of the state, for the purchase of a site or part thereof, and the erection and completion of a new capitol building, in accordance with the terms and provisions of this act; provided, that the total amount so transferred shall not exceed the sum of two millions of dollars."

Conceding without deciding, that a taxpayer may maintain an action to restrain the misappropriation of state funds, we will proceed to consider the other questions raised.

1. The position of counsel for appellants seems to be that the constitution prohibits the building of a state capitol with surplus revenues now in the state treasury, or with funds to be raised by taxation during the time the capitol is being built, and applied directly to that purpose, and that it can only be built with the proceeds of bonds issued for that purpose. The expense of building a state capitol is not an ordinary, but an extraordinary, expense, within the meaning of sections 2, 5, 6, 7 and 8 of article 9 of the constitution, and counsel cites these sections as authority for his position. These sections read as follows:

"Sec 2. The legislature shall provide for an annual tax sufficient to defray the estimated (ordinary) expenses of the state for each year; and whenever it shall happen that such ordinary expenses of the state for any year shall exceed the income of the state for such year, the legislature shall provide for levying a tax for the ensuing year sufficient, with other sources of income, to pay the deficiency of the preceding year, together with the estimated expenses of such ensuing year."

"Sec. 5. For the purpose of defraying extraordinary expenditures, the state may contract public debts, but such debts shall never, in the aggregate, exceed two hundred and fifty thousand dollars; every such debt shall be authorized by law, for some single object, to be distinctly specified therein; and no such law shall take effect until it shall have been passed by the vote of two-thirds of the members of each branch of the legislature, to be recorded by the yeas and nays on the journals of each house respectively; and every such law shall levy a tax annually sufficient to pay the annual interest of such debt, and also a tax sufficient to pay the principal of such debt within ten years from the final passage of such law, and shall specially appropriate the proceeds of such taxes to the payment of such principal and interest; and such appropriation and taxes shall not be repealed, postponed or diminished until the principal and interest of such debt shall have been wholly paid. * * *

"Sec. 6. All debts authorized by the preceding section shall be contracted by loan on state bonds of amounts not less than five hundred dollars each, on interest, payable within ten years after the final passage of the law authorizing such debt; and such bonds shall not be sold by the state under par. * * *

"Sec. 7. The state shall never contract any public debt, unless in time of war, to repel invasion or suppress insurrection, except in the cases and in the manner provided in the fifth and sixth sections of this article.

"Sec 8. The money arising from any loan made, or debt or liability contracted,...