State ex rel. Bd. of Regents of Normal Sch. v. Donald

• Decision Date: 02 May 1916
• Citation: 157 N.W. 782,163 Wis. 145
• Parties: STATE EX REL. BOARD OF REGENTS OF NORMAL SCHOOLS v. DONALD, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

163 Wis. 145

157 N.W. 782

STATE EX REL. BOARD OF REGENTS OF NORMAL SCHOOLS

v.DONALD, SECRETARY OF STATE.

Supreme Court of Wisconsin.

May 2, 1916.

Original petition by the State, on the relation of the Board of Regents of Normal Schools, for writ of mandamus against John S. Donald, as Secretary of State. Writ issued.Sanborn & Blake, of Madison, for petitioner.

Walter C. Owen, Atty. Gen., for defendant.

WINSLOW, C. J.

This is a mandamus action brought originally in this court to compel the secretary of state to audit certain bills incurred by the normal school regents for the building of a gymnasium at the Whitewater Normal School. The question presented on the motion to quash the alternative writ is whether subsection 30 of section 172--54, Stats. 1913, was repealed by chapter 633 of the Laws of 1915.

Subsection 30 aforesaid reads as follows:

“30. There is appropriated on July 1, 1913, four thousand dollars, and on July 1, 1914, four thousand dollars, and on March 1, 1915, fifty thousand dollars, payable from any moneys in the normal fund income not otherwise appropriated, to the board of normal regents for educational apparatus, furniture and furnishings, library books, for a gymnasium and equipment, for land improvements and for other property and improvements at the normal school at Whitewater” (1913).

By chapter 633 of the Laws of 1915, approved August 24th and published August 27th of that year, this subsection “is amended so as to read as follows”:

“30. There is appropriated on July 1, * * * 1915, * * * nine thousand seven hundred seventy-five dollars and on July 1, 1916, four thousand four hundred seventy-five dollars * * * payable from any moneys in the normal fund income not otherwise appropriated to the * * * state board of education for * * * permanent property and improvements at the normal school at Whitewater. Of the first appropriation, three thousand one hundred dollars shall be available only for purchase of land” (1915).

It appears by the petition for the writ that prior to December 31, 1914, the board of normal school regents, with the approval of the Governor, contracted for the excavation and concrete work for a gymnasium at the Whitewater school, which work was fully completed prior to July 1, 1915, and the sum of $7,118 paid therefor in addition to architects' fees amounting to $1,544, said sums being paid out of the appropriations made by said subsection 30; also that thereafter the regents entered into contracts aggregating $37,067 for the completion of said gymnasium, which contracts were approved by the Governor August 14, 1915, and were entered into on the basis of the availability therefor of the moneys appropriated by said subsection 30, there being an unexpended balance in said appropriation on July 1, 1915, of $45,437.89; that the bills in question here are certain bills amounting to $4,156.84 for a portion of the work of construction of said gymnasium under the last-named contracts, and that there are sufficient funds in said appropriation to discharge the same, unless said appropriation was repealed by force of the amendment thereof by the rewriting of subsection 30 aforesaid by chapter 633 of the Laws of 1915.

[1][2][3][4] Undoubtedly the Legislature can repeal a statute carrying an appropriation, and thus put an end to the appropriation, so far as it is unexpended, at any time. If contracts are thereby breached the contractors must resort to other remedies; they cannot insist that the appropriation remains available simply because of an outstanding contract entered into on the faith of it.

Undoubtedly, also, the general rule of construction is that, where a statute rewrites a former statute and states that the same “is amended so as to read as follows,” all provisions in the original statute not found in the amending statute are repealed. Ashland W. Co. v. Ashland County, 87 Wis. 209, 58 N. W. 235, and cases cited.

This is because the inference is necessarily strong that such was the legislative intention. The rule, however, is not ironclad. The idea of all such rules is to carry out the legislative intention, and if it appear that the legislative intention was otherwise, the rule must go and the intention prevail. The rule is not sacred, but the intention is. The intention “is to be determined from the nature and language of the amendment, from other acts passed at, or about the same time, and from all the circumstances of the case.” Bank v. Faber, 150 N. Y. 200, 44 N. E. 779.

[5] Under the circumstances before us in the present case we think it quite certain that the amendment of 1915 shows no intention to repeal or revoke the unexpended balances of the appropriations carried by the original subsection 30, but rather the reverse. These circumstances will be briefly stated.

By chapter 758, Laws of 1913, an attempt was made to bring together in logical order the fundamental provisions of law...