Johnson v. McDonald

• Court: Colorado Supreme Court
• Writing for the Court: YOUNG, Justice.
• Citation: Johnson v. McDonald, 97 Colo. 324, 49 P.2d 1017 (Colo. 1935)
• Decision Date: 09 September 1935
• Docket Number: 13764.
• Parties: JOHNSON, Governor, et al. v. McDONALD.

49 P.2d 1017

97 Colo. 324

JOHNSON, Governor, et al. v. McDONALD.

No. 13764.

Supreme Court of Colorado, En Banc.

September 9, 1935

Rehearing Denied Oct. 7, 1935.

Error to District Court, City and County of Denver; James C Starkweather, Judge.

Action by Jesse F. McDonald against Ed C. Johnson, as Governor, and others. To review a judgment after overruling their demurrer defendants bring error.

Reversed and remanded, with instructions.

CAMPBELL BURKE, and HILLIARD, JJ., dissenting. [Copyrighted Material Omitted]

Paul P. Prosser, Atty. Gen., Charles Roach, First Asst. Atty. Gen., and Pierpont Fuller, Jr., Asst. Atty. Gen (Dines, Dines & Holme, of Denver, of counsel), for plaintiffs in error.

Frazer Arnold, of Denver, for defendant in error.

YOUNG Justice.

This is an action brought by the defendant in error against the plaintiffs in error in the district court in and for the city and county of Denver to enjoin the plaintiffs in error from carrying out the provisions of chapter 181, Session Laws 1935 (page 941), approved March 7, 1935, which, together with chapter 124, Session Laws 1935 (page 462), approved April 4, 1935, was enacted to provide ways and means whereby the state of Colorado might procure from the federal government an advance of not to exceed $25,000,000 to be used during the present financial depression for the construction, supervision, and maintenance of public highways within the state of Colorado. The parties appear in the reverse order of their appearance in the trial court and for convenience will be herein designated as plaintiff and defendants. A general demurrer to the complaint was overruled in the district court, defendant elected to stand thereon, judgment was entered against them, and an injunction granted as prayed. Defendants bring the cause here on writ of error to reverse that judgment.

Chapter 124, Session Laws 1935 (page 462), purporting to 'amend sections 1385 to 1418, both inclusive' of Compiled Laws of 1921, but in fact amending only sections 1391, 1409, 1410, 1411, 1413, and 1416 thereof, creates a state institution under section 1, article 8 of the Constitution (State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 P. 28, Ann.Cas. 1916B, 810 [Sys. ¶ 6]), a body corporate with power to adopt a common seal, to be known as the state highway department. This highway department is given the authority to exercise all powers given it from time to time by law, among which are the powers to lay out, construct, maintain, and supervise the state highways. The act creates two separate funds, one to be known as the state highway fund and the other to be known as the state highway supplementary fund, and provides that all moneys paid into either fund shall be immediately available without further appropriation for the purposes for which such fund was created, as provided by law; it authorizes payments from the fund by the state treasurer on warrants drawn as provided by law; and further provides that nothing in the act shall alter the manner of the execution and issuance of highway anticipation warrants as provided in chapter 181, supra.

Sections 3, 4, 5, and 6 of said chapter 124 (pages 464-468), being amended sections 1410, 1411, 1413, and 1416 of the Compiled Laws of 1921, are as follows:

'Section 1410. (a) All receipts, from the following sources shall be paid into and credited to the State Highway Fund as soon as received:

'(1) From such appropriation as may, from time to time, be made by law to the State Highway Fund from excise tax revenues.

'(2) From all revenue accruing to the State Highway Fund under the provisions of law, by way of excise taxation from the imposition of any license, registration fee, or other charge with respect to the operation of any motor vehicle upon any public highways in this State, and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel.

'(b) All receipts from the following sources shall be paid into and credited to the State Highway Supplementary Fund as soon as received:

'(1) From such appropriations as may from time to time be made by law to the State Highway Supplementary Fund.

'(2) From all moneys now in or that may hereafter be paid into the Internal Improvement Permanent Fund and the Internal Improvement Income Fund.

'(3) From all receipts from the sale of bonds that may be authorized by the people of the State for State Highway purposes.

'(4) From the Federal Government or any department thereof of moneys for the purpose of constructing, improving or maintaining State Highways, and from all public donations for such purpose. All such donations shall be paid to the credit of the State Highway Supplementary Fund for such particular purpose as may be indicated by the donor; Provided, However, that the State Treasurer shall not receive any gift for such purpose without the approval of the Board.

'(5) From all moneys for State Highway purposes from sources other than those specified in Subdivision (a) of this Section.

'(c) All moneys in the State Highway Fund as heretofore constituted by Section 1409 of the Complied Laws of Colorado, 1921, shall be covered into the State Highway Supplementary Fund on the date this Act goes into effect.

'The Highway Department hereby created shall be deemed to have assumed all lawful financial obligations of the State Highway Commission, created by chapter 78, Session Laws of 1917, approved April 20, 1917.'

'Section 1411. The State Highway Fund shall be available first for the creation and maintenance of the Highway Anticipation Fund or the Sinking Fund provided for in that certain Act entitled:

"An act to secure benefits for the people of Colorado under Federal legislation relating to public works and construction projects; to provide for receiving, on behalf of the state of Colorado, grants and advances from the Federal Government on projects for the construction, improvement, reconstruction and maintenance of public highways and bridges, for the expenditure of same; providing for the issuance of state highway fund revenue anticipation warrants and for their retirement by annual payments from highway funds. Approved March 7, 1935.'

'All moneys in the State Highway Fund, not required for the creation, maintenance and application of such Highway Anticipation Fund or Sinking Fund, shall with the State Highway Supplementary Fund be available to pay for:

'(1) All salaries, wages, and necessary traveling and other expenses of all persons connected with the State Highway Department.

'(2) All equipment, furniture and supplies for offices, division offices and laboratories as may be established by the Highway Engineer.

'(3) All incidental office expenses, including telegraph, telephone, postal, express charges and expenses for printing, stationery and advertising and for the publication of the quarterly bulletin.

'(4) All machines, tools or other equipment necessary for the furtherance of the work of the Department, and also land and buildings for the housing and use of the same.

'(5) The construction and maintenance of state highways.

'(6) All land damages incurred by reason of establishing, opening, altering, relocating, widening, or abandoning portions of any state highway.'

'Section 1413. The State Highway Fund and the State Highway Supplementary Fund shall be expended by the State Highway Department, subject to the following provisions: There shall be prepared a budget which shall show the amount of the State Highway Fund and the amount of the State Highway Supplementary Fund on hand, the amount of outstanding obligations against each Fund, the estimated amount of receipts from all sources that will become available for each fund during the ensuing, and the estimated amount to be expended for the various activities and projects for the forthcoming year. The total estimated expenditures contemplated for all purposes of the State Highway Department for a given year shall not exceed the total estimated available funds. It shall be the duty of the State Treasurer and the Highway Engineer to give, on request, such information as the Highway Advisory Board may need for the preparation of such budget. The budget shall be so prepared that it may be readily understood how much it is proposed to expend for administrative purposes, which shall not exceed four per cent of the estimated funds available--how much for construction, with an allowance of not more than ten per cent of the amount to be expended on any construction work for engineering and supervision of the same; in general where such construction is to be located, how much for maintenance and the extent of highway it is proposed to maintain, together with such other essential facts as the Board may deem necessary in order that the people of the State may have full knowledge as to how much money there may be available in a given year for the work of the Department and how it is proposed to spend the money. In adjusting the expenditures for a given year, the Board shall give full consideration to the recommendation of the Chairman of the Boards of County Commissioners, of all the counties of the State of Colorado, who shall submit to the Board the necessary report and recommendations, on or Before the fifteenth day of November of each year. The budget in its final form so prepared, shall be issued in printed form and sent free of charge to any citizen of the State who may apply for the same.'

'Section 1416. If, as the result of any agreement made by the State Highway Department, on behalf of the State, and any branch of the Federal Government, there shall be undertaken actual construction or improvement of highways in the State, the letting of contracts,

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