In re Canal Certificates

• Decision Date: 16 October 1893
• Court: Colorado Supreme Court
• Parties: In re CANAL CERTIFICATES.

34 P. 274

19 Colo. 63

In re CANAL CERTIFICATES.

Supreme Court of Colorado

October 16, 1893

The facts fully appear in the following statement by HAYT, C.J.:

Eugene Engley, Atty. Gen., and Harvey Riddell, amici curiae.

HAYT C.J., (after stating the facts.)

The questions submitted for our consideration are so general in character as to leave the court in doubt as to the particular provision or provisions of the constitution in the light of which Acting Governor Nichols wishes an investigation to be conducted. While this department will be found ready and willing at all times to co-operate with, and furnish to, the executive, such assistance as it may be able, to facilitate the discharge of the public business, yet the court again takes the liberty of calling attention to the necessity of directing consideration to the specific provisions of the constitution upon which a construction is desired, when the inquiry concerns the constitutionality of a bill or an act of the legislature. In re Irrigation, 9 Colo 620, 21 P. 470; In re House Bill No. 165, 15 Colo. 593, 26 P 141; In re Loan of School Fund, 18 Colo. ----, 32 P. 273. We have been aided in the present instance by brief arguments from the attorney general and H. Riddell, Esq., of the Denver bar. We shall limit our reply to the constitutional provisions called to our attention in such arguments. The expenses of construction of the canal in question are to be met in part by certificates of indebtedness. Both principal and interest of these certificates are only to be paid out of funds received for the carriage of water or in payment for lands. The act expressly provides against any indebtedness being incurred on the part of the state, and therefore is not in conflict with the constitutional provisions heretofore considered by this court, fixing a limitation upon state indebtedness. See In re Appropriations of General Assembly 13 Colo. 316, 22 P. 464. By the terms of the act the certificates authorized may, when issued, be 'accepted by the state in payment for the carriage of water or in payment for lands.' As the state has not undertaken the construction or management of any ditch other than the one mentioned in the act, the carriage of water for which the certificates are to be receivable must necessarily be confined to water carried by this ditch, at least for the present. The same limitation does not, however, apply to the payment for lands. No restriction as to the location of such lands is to be found in the act. Only a small portion of the large bodies of land owned by the state are situate in proximity to the route of the proposed ditch. This fact was well known to the legislature, and, in the absence of any express limitation, we conclude that it was the intention to make the certificates receivable in payment for lands purchased from the state, without regard to the location of such lands. Is the legislature empowered to authorize the acceptance of such certificates in payment for lands of the state? Outside of a few small tracts of land used for specific purposes, the only lands owned by the state were received as donations from the general government for specific purposes, such as schools, public buildings, etc. See sections 7-10, Enabling Act. The framers of our constitution, with conscientious regard for the terms of the gift, inserted the following provision in that instrument 'The general assembly shall, at the earliest practicable period, provide by law that the several grants of lands made by congress to the state shall be judiciously located and carefully preserved and held in trust subject to disposal, for the use and benefit of the respective objects for which said grants of land were made.' Section 10, art. 9, Const. No question with reference to the disposal of the internal improvement fund is involved in any of the interrogatories propounded, or by the terms of this act. Such fund, while properly applicable to the construction of a system of canals and reservoirs within the state, at the discretion of the legislature, can only be made available by an express appropriation. In re International Imp. Fund, 12 Colo. 285, 21 P. 483; In re Internal Improvements, 18 Colo. ----, 32 P. 611. No argument is required to show that the payment for lands purchased from the state by certificates issued for the construction of this ditch, as provided by the act before us, would necessarily result in diverting these lands and the proceeds thereof from the use and benefit of the respective objects for which the grants were made. We therefore agree with the attorney general and with Mr. Riddell that the act under consideration is unconstitutional and void in so far as it authorizes the state to accept the...