State ex rel. Fletcher v. Executive Council of State

Decision Date05 March 1929
Docket Number39762
Citation223 N.W. 737,207 Iowa 923
PartiesSTATE OF IOWA ex rel. JOHN FLETCHER, Attorney-general, et al., Appellants, v. EXECUTIVE COUNCIL OF STATE OF IOWA et al., Appellees
CourtIowa Supreme Court

Appeal from Polk District Court.--W. G. BONNER, Judge.

Suit in equity against the executive council of the state of Iowa and the members thereof, and against the state highway commission and the members thereof, to enjoin the enforcement of a legislative act comprised in Chapter 2 of the Acts of the Extra Session of the Forty-second General Assembly, and commonly known as "the Road Bond Act," on the ground that said act is unconstitutional and void. Many grounds of challenge are specified in the petition. There was a motion to dismiss the petition, predicated upon grounds of demurrer, the substance of such pleading being the assertion of the constitutionality of the act. All issues in the case converge upon the question of the alleged unconstitutionality. The district court sustained the motion to dismiss, and the plaintiffs have appealed.

Reversed.

John Fletcher, Attorney-general, and Neill Garrett and Earl F Wisdom, Assistant Attorney-generals, for appellants.

Stipp Perry, Bannister & Starzinger and Senneff, Bliss, Witwer & Senneff, for appellees.

EVANS J. Justice Grimm, takes no part.

OPINION

EVANS, J.

I.

The procedure adopted herein cannot be approved. As presented, the case carries some of the aspects of a moot one. The legislative call upon the attorney-general to test the constitutionality of the act, by action brought by himself, overlooked the limitations upon the power of the judiciary, and quite ignored the legitimate scope of the powers of the attorney-general. By the very nature of his office, and by statute, he is the legal adviser, both of the executive council and of the general assembly. To require him to maintain this action is to put him in a position which is repugnant to his other official duties. Nor has the judiciary of this state any power to render a merely declaratory judgment. We have jurisdiction to entertain only justiciable causes, prosecuted by a bona-fide litigant whose private rights are alleged to be invaded by an unconstitutional act. We recognize the fact that the legislative call was an act of deference to the judiciary, as a co-ordinate department of the state; and in turn, such deference is hereby fully reciprocated by the judicial department. The legislative good faith is manifest; and likewise that of the attorney-general, who has performed the mandate upon him with sincere purpose and with signal ability. Nevertheless, judicial duty requires us to say that he has no legal standing as a plaintiff in this case; and this we do without implying criticism upon him or upon the legislative body. We shall, therefore, treat the case as being maintained by Chrisinger, as sole plaintiff, who, as a resident of the state and owner of taxable real estate therein, and the owner of an automobile, and the payer of a license fee thereon, and the purchaser of much gasoline therefor, challenges the constitutionality of the act.

II. The act under challenge has, as its objective, the creation of a debt by the state of Iowa for $ 100,000,000 and the issuance of bonds therefor. Under the Constitution, the legislature has no power to create a state debt greater than $ 250,000, except by certain procedure set forth in the Constitution, which comprises the submission of the question to a vote of the electorate. The constitutional procedure is contained mainly in Article VII of the Constitution, and more particularly in Section 5 thereof. Section 5, Article VII, is as follows:

"Sec. 5. Except the debts hereinbefore specified in this article, no debt shall be hereafter contracted by, or on behalf of this state, unless such debt shall be authorized by some law for some single work or object, to be distinctly specified therein; and such law shall impose and provide for the collection of a direct annual tax, sufficient to pay the interest on such debt, as it falls due, and also to pay and discharge the principal of such debt, within twenty years from the time of the contracting thereof; but no such law shall take effect until at a general election it shall have been submitted to the people, and have received a majority of all the votes cast for and against it at such election; and all money raised by authority of such law, shall be applied only to the specific object therein stated, or to the payment of the debt created thereby; and such law shall be published in at least one newspaper in each county, if one is published therein, throughout the state, for three months preceding the election at which it is submitted to the people."

Pursuant to the foregoing, the act in question was passed by the legislature and adopted by vote of the electorate at the last general election. This act purported to provide for a bond issue of $ 100,000,000 and to create an indebtedness of the state to such amount by the sale of such bonds. The alleged purpose of the act is to provide means for the construction of a system of primary roads within and throughout the state, comprising a paving mileage of approximately 5,000 miles. Purported provision is made in the act for the levy of a direct tax for the payment of the bonds, as they mature, as required by Section 5, subject, however, to certain contingencies therein specified. In addition to its provision for a direct tax for the payment of the bonds, the act also provides for the budgeting of the primary road fund in such a way that the bonds shall in fact be paid out of such primary road fund, rather than by means of the direct tax. The primary road fund is created and replenished by the collection of indirect taxes, such as motor license fees and gasoline taxes of three cents per gallon, and by Federal aid appropriations. These resources amount, at the present time, to approximately $ 15,000,000 a year. The act as a whole is something more than a provision for borrowing money and issuing bonds therefor, and of levying a direct tax for the redemption of the bonds. In addition to such direct purpose, it comprises a considerable and detailed scheme or plan of financing. The objective of this financing plan is to so conserve and direct these future resources of the primary road fund, comprising gasoline taxes and motor license fees, that they shall be available and sufficient to pay the bond issue as fast as the bonds mature, and thereby to render the collection of a direct tax wholly unnecessary. The details of this financing plan constitute the legal morass in which the bond issue has become entangled. This finance plan is based upon estimates and probabilities, and appears plausible and sound, as distinguished from the question of its legality under the Constitution. The necessary result of this plan, if valid and successful, is that no direct tax will ever be levied, and that the accumulations in the primary road fund from the sources indicated will be abundant to redeem all bonds as they mature, with a substantial margin left over. The plan further contemplates the retirement of county bonds in like manner. It appears that authorized road bonds have been issued in 61 counties, to an amount of $ 43,000,000, outstanding. The plan contemplates the retirement of these county bonds, either by a payment thereof out of the primary road fund, or by substitution therefor of state bonds to a like amount. The sum of $ 100,000,000 is to include the sum total of all bonds, both county and state. The whole enterprise is to be financed by one scheme. The period of time covered by the enterprise is divided into two parts. The first part is the construction period, and comprises the first six years. At the expiration of this period, the improvement will have been finished, and the proceeds of the bond issue will have been expended. The second part is the period of redemption of bonds. This runs from 1935 to 1954, inclusive. Under the proposed plan, the last bond will be redeemed in 1954, and all redemptions will have been made by the appropriation of gasoline taxes and motor license fees. These resources are budgeted to the following purposes: (1) To the maintenance of primary roads; (2) to the payment of interest on all outstanding county bonds and to the payment of principal on all maturing county bonds; (3) to the use of the highway commission in carrying out the provisions of the act. It is enacted also that this budget provision shall not be amended or repealed by any future legislature. Certain provisions of the act will be set forth later herein. With this general outline, we proceed to a consideration of specific complaints.

III. It will be noted that Section 5, Article VII, provides:

"And such law shall impose and provide for the collection of a direct annual tax, sufficient to pay the interest on such debt, as it falls due, and also to pay and discharge the principal of such debt, within twenty years from the time of the contracting thereof."

The period of time covering the successive sales and maturities of the bonds provided for in this act extends from 1929 to 1954. Complaint is directed to this feature of the act, as being in violation of Section 5, in that it fails to provide for the discharge of the debt within the time limit of 20 years. The response to this complaint is that immediate sale of the entire bond issue is not contemplated; that the same will be sold in installments or series on successive dates as the proceeds of the bonds shall be needed for road improvements. These successive dates of sale will cover a period of 6 years. The last installment of the bonds will be offered for sale in 1934. It is proposed to sell only sufficient bonds,...

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2 cases
  • Davis v. Synhorst
    • United States
    • U.S. District Court — Southern District of Iowa
    • January 14, 1964
    ...are inseparable. See Smith v. Thompson, 219 Iowa 888, 894-898, 258 N.W. 190, 194-196 (1935); State ex rel. Fletcher v. Executive Council, 207 Iowa 923, 934-935, 223 N.W. 737, 742 (1929). There are other restrictions on apportionment contained in Article III. Section 37 "When a * * * senator......
  • State ex rel. Fletcher v. Exec. Council of State
    • United States
    • Iowa Supreme Court
    • March 5, 1929
    ... 207 Iowa 923 223 N.W. 737 STATE EX REL. FLETCHER, ATTY. GEN., ET AL. v. EXECUTIVE COUNCIL OF STATE OF IOWA ET AL. No. 39762. Supreme Court of Iowa. March 5, 1929 ... Appeal from District Court, Polk County; W. G. Bonner, Judge. Suit in equity against the Executive Council of the State of Iowa and the members thereof, and against the State Highway Commission and the ... ...

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