Lyons v. Bottolfsen

• Decision Date: 21 March 1940
• Docket Number: 6763
• Citation: 61 Idaho 281,101 P.2d 1
• Parties: FLOYD W. LYONS, Appellant, v. C. A. BOTTOLFSEN, as Governor and Chairman of the Toll Bridge Committee; E. W. SINCLAIR, as Commissioner of Public Works and Secretary of the Toll Bridge Committee; MYRTLE P. ENKING, as Treasurer; and CALVIN E. WRIGHT, as Auditor, Respondents
• Court: Idaho Supreme Court

101 P.2d 1

61 Idaho 281

FLOYD W. LYONS, Appellant, v. C. A. BOTTOLFSEN, as Governor and Chairman of the Toll Bridge Committee; E. W. SINCLAIR, as Commissioner of Public Works and Secretary of the Toll Bridge Committee; MYRTLE P. ENKING, as Treasurer; and CALVIN E. WRIGHT, as Auditor, Respondents

No. 6763

Supreme Court of Idaho

March 21, 1940

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Suit to restrain purchase by the state of a privately owned toll bridge, claiming statute and contract providing therefor are unconstitutional. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

James R. Bothwell and Harry Povey, for Appellant.

Issuance of treasury notes under the act creates a debt or liability in violation of article 8, section 1, of the Constitution. (State v. Highway Com., 189 Mont. 205, 296 P. 1033; In re Senate Resolution No. 2, 94 Colo. 101, 31 P.2d 325-330.)

The state cannot issue tax anticipation notes for the purpose of borrowing a sum in excess of the revenues provided within the fiscal year against anticipated tax receipts to be collected over a period extending not only beyond the fiscal year, but several years beyond the biennium, and appropriate the money so borrowed for expenditure within the fiscal year, in view of article 7, section 11, of the Constitution. (Stein v Morrison, 9 Idaho 426, 75 P. 246; Feil v. Coeur d'Alene, 23 Idaho 32, 129 P. 643, 43 L. R. A., N S., 1095; Williams v. Emmett, 51 Idaho 500, 6 P.2d 475.)

The act violates section 16 of article 3 of the Constitution forbidding that any act embrace more than one subject, and requiring that the subject be expressed in the title. (State v. Pioneer Nurseries Co., 26 Idaho 332, 143 P. 405; Federal Reserve Bank v. Citizens Bank & Trust Co. et al., 53 Idaho 316, 23 P.2d 735; Utah Mortgage Loan Corp. v. Gillis, 49 Idaho 676, 290 P. 714.)

The allowance of an offset in the amount of the tax against the dealer's income tax (sec. 10) is a violation of article 7, section 5, and article 1, section 13, of the Constitution. (Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307; United Pacific Ins. Co. v. Bakes, 57 Idaho 537, 67 P.2d 1024; J. C. Penney Co. v. Diefendorf, 54 Idaho 374, 32 P.2d 784.)

J. W. Taylor, Attorney General, and R. P. Parry and Harry Benoit, Special Assistants to the Attorney General, for Respondents.

The treasury notes authorized by the act do not constitute a debt or liability in contravention of the $ 2,000,000 debt limit prescribed by section 1, article 8 of the state Constitution. (State ex rel. Black v. Eagleson, 32 Idaho 276, 181 P. 934; State ex rel. Hall v. Eagleson, 32 Idaho 280, 181 P. 935; State v. Banks, 37 Idaho 27, 215 P. 468; Girard v. Diefendorf, 54 Idaho 467, 34 P.2d 48; Stein v. Morrison, 9 Idaho 426, 75 P. 246; Ada County v. Wright, 60 Idaho 394, 92 P.2d 134.)

Obligations payable from excise taxes do not in any event fall within the constitutional principal. (Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695; State ex rel. Richards v. Moorer, 152 S.C. 455, 150 S.E. 269; State ex rel. Crawford v. Stevens, 173 S.C. 149, 175 S.E. 213.)

Except as limited by the Constitution, the incurring of state indebtedness, the expenditure of state funds, and the making of appropriations, the legislature has plenary power.) (State v. Banks, 33 Idaho 765-780, 198 P. 472; City of Burley v. Pfost, 51 Idaho 255, 4 P.2d 898; Independent School Dist. v. Pfost, 51 Idaho 240, 4 P.2d 893, 84 A. L. R. 820; Ada County v. Wright, supra.)

The act does not embrace more than one subject and matters properly connected therewith, nor does it fail to express that subject in the title in violation of section 16 of article 3 of the Constitution. (State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105; Boise City v. Baxter, 41 Idaho 368, 238 P. 1029; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 68 P. 295, 101 Am. St. 201.)

Section 10, allowing an exemption on motor fuel dealers' income taxes, is no valid objection in this case, because:

(1) The plaintiff shows no injury and the point is not essential to decision of this case. (Alberthesen v. State, 60 Idaho 715, 96 P.2d 437.)

(2) Excise taxes are not required to be levied uniformly. (State ex rel. Anderson v. Rayner, 60 Idaho 706, 96 P.2d 244.)

(3) If the entire section is unconstitutional, it does not affect the remainder of the act. (Gillesby v. Board of County Commrs., 17 Idaho 586, 107 P. 71; State v. Bird, 29 Idaho 47, 156 P. 1140; Little Rock & Fort Smith R. Co. v. Worthen, 120 U.S. 97, 7 S.Ct. 469, 30 L.Ed. 588; Utah Power & Light Co. v. Pfost, 52 F.2d 226; also see sec. 25 of the act.)

GIVENS, Presiding Justice. Morgan and Holden, JJ., and Taylor and McDougal, D. JJ., concur. Taylor and McDougal, D. JJ., sat in place of Ailshie, C. J., and Budge, J.

OPINION

GIVENS, Presiding Justice.

Chapter 223, 1939 Session Laws, page 484, provides for a Toll Bridge Committee to be composed of the Governor, and four citizens of the state appointed by him with the Commissioner of Public Works as secretary.

The commissioner is authorized to acquire by purchase, agreement, condemnation or otherwise any toll bridge in the state at such amount as shall be determined and fixed by the committee, not to exceed $ 500,000. Prior to such purchase the commissioner shall cause an independent written appraisal of the value of such bridge to be made by an appraiser or appraisers appointed by him and filed in the Department of Public Works and with the Toll Bridge Committee.

Issuance and sale by the Governor and Treasurer of treasury notes of the state bearing interest not to exceed 3 per cent per annum payable semi-annually are authorized. The proceeds of the notes are appropriated via a "Toll Bridge Acquisition Fund" for the acquisition of toll bridges in accordance with the statute. Said notes are to be retired by a levy of one mill per gallon on all motor fuel sold in the state; such levy being first covered into a "Toll Bridge Treasury Note Redemption Fund."

For each six months' period of the collection of said tax enough thereof is allocated therefrom to pay the interest on all notes outstanding and redemption of notes falling due in said half year, the balance received from said levy for each semi-annual period to go to the State Highway Fund. Adequate, full and complete provision is made for the collection of said tax by the dealers in motor fuel and transmittal through the Department of Law Enforcement to the State Treasurer. Such dealer are allowed to deduct the amount of the tax from their income tax returns to the state.

Based on the amount of motor fuels sold in 1937 and 1938 the legislature estimated at least $ 45,000 would be collected semi-annually by such excise tax. Under such estimate the notes issued, the subject matter of the suit herein amounting to $ 482,000, being the fixed price of the bridge contracted to be purchased, would be retired in approximately six and one-half years and maturity amounts and dates were accordingly specified in the issue involved herein.

A separate appropriation of $ 2,000 is made for the expenses of the commission.

It is further provided the levy of such tax shall be irrevocable and irrepealable until said notes are paid in full.

Appellant as a citizen, property owner, taxpayer of the state and purchaser and consumer of motor fuels therein, on behalf of himself and all others similarly situated, sued to restrain, on constitutional grounds, all proceedings in connection with the purchase of the "rim-to-rim" cantilever toll bridge spanning the precipitously walled Snake River Canyon, the boundary line between Twin Falls and Jerome counties, comprising rich, fertile, productive, progressive agricultural areas. The bridge was constructed and is now owned and operated by the Twin Falls-Jerome Intercounty Bridge Company, a Washington corporation qualified to do business in the state, under a franchise from said counties dated December 31, 1925, as amended, July 16, 1926.

The highways at both ends of the bridge are state highways but because it is a toll bridge it is asserted the federal Government will not aid in the construction, maintenance or improvement of said highways with federal funds.

First, it is contended the title ^[1] of the statute is insufficient, ambiguous and misleading and the statute embraces more than one subject not properly expressed in the title.

A statute must embrace but one subject and matters reasonably connected therewith (State v. Pioneer Nurseries Co., 26 Idaho 332, 143 P. 405; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149) but where all provisions relate to and have a natural connection with the same subject they may be united in one statute. (Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 68 P. 295, 101 Am. St. 201; Chambers v. McCollum, 47 Idaho 74, 272 P. 707; Johnson v. Diefendorf, 56 Idaho 620, 57 P.2d 1068.) The title need not be an index to the statute. (Federal Reserve Bank v. Citizens' B. & T. Co., 53 Idaho 316, 23 P.2d 735; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105.) All that is required is that the subject be expressed in the title and the contents be germane to the purposes recited in the title. (Turner v. Coffin, 9 Idaho 338, 74 P. 962; Settlers' Irr. Dist. v. Settlers' Canal Co., 14 Idaho 504, 94 P. 829; Andrews v. Board of Commrs. of Ada County, 7 Idaho 453, 63 P. 592.)

This title does not offend.

The subject matter of this statute does not come within the prohibitions of article 3, section 19, of the Constitution as to local and special legislation. Hence the legislature was free from such restrictions in...