Parks v. Commissioners of Soldiers' & Sailors' Home

• Decision Date: 18 January 1896
• Citation: 22 Colo. 86,43 P. 542
• Parties: PARKS, Auditor, v. COMMISSIONERS OF SOLDIERS' & SAILORS' HOME. SAME v. PEOPLE ex rel. LEE.
• Court: Colorado Supreme Court

43 P. 542

22 Colo. 86

PARKS, Auditor, v. COMMISSIONERS OF SOLDIERS' & SAILORS' HOME.

SAME v. PEOPLE ex rel. LEE.

Supreme Court of Colorado

January 18, 1896

Error to district court, Arapahoe county.

Actions by the commissioners of the Soldiers' & Sailors' Home, and by the people of the state of Colorado on the relation of Harry A. Lee, against Clifford G. Parks, state auditor, to compel defendant by mandamus to issue warrants for certain appropriations. From judgments awarding peremptory writs to both petitioners, defendant brings error. The judgment in the case of the People ex rel. Lee is affirmed, and in that instituted on behalf of the Soldiers' & Sailors' Home reversed.

The revenues of the state for the fiscal year A. D. 1895 not being sufficient to meet all the appropriations made by the legislature for that year, the auditor refused to issue warrants for a part of the appropriation for the Soldiers' & Sailors' Home, and also refused to issue warrants for a part of the salary and expenses of the commissioner of mines and his assistants. Actions were accordingly commenced to compel the auditor by mandamus to issue warrants for the residue of these appropriations. It is averred in the answers of the auditor, and not denied, that the appropriations for the fiscal year 1895 were largely in excess of the revenues available to meet the same. The answers, in addition to setting up the revenues for the year as estimated, set up a list of claimants for the revenue remaining undisposed of, and asked that such claimants be made parties to the action, in order that a multiplicity of suits may be avoided. The prayer of the petitioner in this behalf having been granted, the various claimants appeared and without objection submitted their claims to the residue of the revenues in question. As a result of the hearing in the district court, a peremptory writ of mandamus was ordered in favor of the commissioners of the Soldiers' &amp Sailors' Home, requiring the auditor to issue warrants upon the treasurer for the balance of the appropriation for that institution for the year 1895. In the case of the commissioner of mines the writ was also allowed. The auditor brings both cases here upon error. The following provisions of our constitution are referred to in the opinion of the court: Article 3, § 1: 'The powers of the government of this state are divided into three distinct departments--the legislative, executive and judicial--and no person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others except as in this constitution expressly directed or permitted.' Article 4, § 1: 'The executive department shall consist of a governor, lieutenant-governor, secretary of state auditor of state, state treasurer, attorney general, and superintendent of public instruction. * * *' Article 5, § 32: 'The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the state, interest on the public debt, and for public schools. All other appropriations shall be made by separate bills, each embracing but one subject.' Article 8, § 1: 'Educational, reformatory and penal institutions, and those for the benefit of the insane, blind, deaf and mute, and such other institutions as the public good may require, shall be established and supported by the state, in such manner as may be prescribed by law.' Article 10, § 2: 'The general assembly shall provide by law for an annual tax, sufficient, with other resources, to defray the estimated expenses of the state government for each fiscal year.' Article 10,§ 11: 'The rate of taxation on property, for state purposes, shall never exceed six mills on each dollar of valuation.' Article 10, § 16: 'No appropriation shall be made nor any expenditure authorized by the general assembly whereby the expenditure of the state during any fiscal year shall exceed the total tax then provided for by law and applicable for such appropriation or expenditure unless the general assembly making such appropriation shall provide for levying a sufficient tax not exceeding the rates allowed in section eleven of this article to pay such appropriation or expenditure within such fiscal year. This provision shall not apply to appropriations or expenditures to suppress insurrection, defend the state, or assist in defending the United States in time of war.' Article 16, § 1: 'There shall be established and maintained the office of commissioner of mines, the duties and salaries of which shall be prescribed by law. When said office shall be established, the governor shall, with the advice and consent of the senate, appoint thereto a person known to be competent, whose term of office shall be four years.'

B. L. Carr, Atty. Gen., and F. P. Secor, Asst. Atty. Gen., for plaintiff in error.

H. T. Sale, amicus curiae.

Charles Hartzel, for state board of health.

Harvy Riddell, for School of Mines.

H. B. Babb, for Home for Dependent Children.

Kinkaid, Eddy & Hart, for commissioner of mines and the state game and fish warden.

J. W McCreery, for State Normal School and state board of cattle inspectors.

J. K. Goudy, for Mute & Blind Institute.

Hugh Butler and Giffin & Murfree, for regents of the University of Colorado.

Robinson & Love, for Agricultural College.

H. H. Eddy, for defendant in error, Lee.

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

These cases, having been consolidated for the purpose of the argument, will be considered together. They are a part of the crop of litigation which springs from the custom of the legislature, at each biennial session, to appropriate money in excess of the revenues of the state, in violation of express constitutional mandates, leaving the various claimants to contest in the courts their rights to the actual revenue. This practice on the part of the lawmaking power has led to expensive and vexatious litigation, to the impairment of the credit of the state, resulting not infrequently in the deprivation of some of our most deserving institutions of funds absolutely necessary for their successful operation. To the credit of the legislature be it said, however, that such unconstitutional appropriations have gradually decreased in amount during the six years that have elapsed since the first opinion of this court was rendered upon the subject, which is entitled In re Appropriations by General Assembly, 13 Colo. 316, 22 P. 464. The 7th general assembly, which convened shortly prior to the rendition of that opinion, appropriated $750,000 for the years 1889 and 1890 in excess of the estimated revenues of the state for those years, and for this reason in violation of the constitution, while the appropriations made by the 10th general assembly only exceeded the revenue for the year 1895 by about $75,000. Justice to the legislative department requires the further statement that the deficiency for the year 1895 arose from a falling off in the revenues of that year, not anticipated at the time of the legislative session. Questions growing out of appropriations beyond the constitutional limit have of late years received the careful attention of the courts. As a result of the cases that have reached this court for determination, certain principles of constitutional law have been promulgated, which aid materially in the determination of the present controversies. As to those principles we shall content ourselves with their brief statement, and for the benefit of those who care to investigate the reasons for the conclusions reached we shall refer to the reports where the cases may be found.

The leading opinion in this state in reference to the subject was written in the case in 13 Colo. and 22 Pac., already referred to. In that case it was determined, inter alia, that the general assembly is inhibited by the constitution from making appropriations or authorizing expenditures in time of peace in excess of the revenue applicable to such appropriations, and that if acts are passed attempting to authorize such expenditures, such acts are void and of no effect. It was further held that no state officer could in any way legally approve or recognize legislation making appropriations beyond the limit fixed by the constitution. And, what is of special importance in this case, it was also held that, in the event of deficiency of revenue to meet the appropriations, the necessary expenses of the executive, legislative, and judicial departments of the state, and interest on any public debt, were entitled to preference. These principles have been followed and approved in a number of cases. Henderson v. People, 17 Colo. 587, 31 P. 334; Institute v. Henderson, 18 Colo. 98, 31 P. 714; Goodykoontz v. People, 20 Colo. 374, 38 P. 473. It has also been determined that, where appropriations are made in excess of the revenue, priority of date of the taking effect of the acts making such appropriations must govern, after preferred appropriations are discharged. Within constitutional limits, the general assembly may appropriate the public funds of the state as it chooses; but when it has once reached the limit, further appropriations are of no force and effect, for the reason that there is no revenue available to meet such appropriations. Goodkoontz v. People, supra; People v. State Board of Equalization, 20 Colo. 220, 37 P. 964.

As some of the opinions to which reference has been made were delivered in answer to questions propounded by the executive, it is perhaps well to say, in passing, that it must not be assumed for this reason that full argument was not heard by the court, or that the opinions were pronounced except upon the...