State ex rel. Kinyon v. Enking, 6941

• Decision Date: 02 July 1941
• Docket Number: 6941
• Citation: 115 P.2d 97,62 Idaho 649
• Parties: STATE ex rel F. B. KINYON, Plaintiff, v. MYRTLE P. ENKING, Treasurer of the State of Idaho, Defendant
• Court: Idaho Supreme Court

115 P.2d 97

62 Idaho 649

STATE ex rel F. B. KINYON, Plaintiff, v. MYRTLE P. ENKING, Treasurer of the State of Idaho, Defendant

No. 6941

Supreme Court of Idaho

July 2, 1941

Rehearing denied July 18, 1941.

SCHOOLS AND SCHOOL DISTRICTS-LOANING OF EDUCATIONAL FUNDS-SECURITIES-CONSTITUTIONAL LAW-AMENDMENTS.

1. Where only subject dealt with by legislature in proposed constitutional amendment was the class and character of securities that should be required on the loaning of permanent endowment funds other than funds arising from disposition of university lands, the submission of a single amendment enumerating all the acceptable securities was all that was required rather than the submission of as many proposals as there were kinds of securities named in the original section. (Const., art. 9, sec. 11, as amended in 1928, and as amended, see Sess. Laws, 1941, p. 480; Const art. 20, sec. 1.)

2. The omission of the word "state" from the enumeration of securities that might be accepted on the loaning of permanent endowment funds other than funds arising from disposition of university land could not be held to be a mistake on part of Legislature, where language used in proposed amendment was not ambiguous or uncertain notwithstanding that Legislature subsequently enacted statutes in terms contrary or contradictory to constitutional amendment which was submitted to and adopted by the people. (Const. art. 9, sec. 11, as amended in 1928; Const. art. 20 sec. 1.)

3. Under the Constitution as amended, the permanent educational fund other than funds arising from the disposition of university land cannot be loaned on state bonds. (Sess. Laws, 1933, Ex. Sess., c. 13, as amended by Sess. Law, 1941, c. 123; Const. art. 9, sec. 11, as amended, see Sess. Laws 1941, p. 480; Const. art. 20, sec. 1.)

4. The Supreme Court is powerless to amend Constitution by judicial construction or interpolation.

APPLICATION for writ of prohibition, commanding defendant to desist and refrain from further proceedings for sale of "1941 Idaho State Institutions Improvement Bonds," to be paid out of the permanent educational funds of state. Alternative writ issued. Motion to quash writ denied and peremptory writ granted.

Writ issued. No costs awarded.

Hugh Redford, for Plaintiff.

Under the terms of the Idaho Admission Bill (26th Stat. L. 215, Chap. 656) Congress granted the State certain lands for specific purposes, the proceeds to constitute a permanent fund. (Idaho Admission Bill, Sections 4, 5, 6, 8, 9, 10, and 12.)

Said grants are commonly known as endowments and funds arising from sales are commonly spoken of as endowment funds. ( Evans v. Van Deusen, 31 Idaho 614, 174 P. 122.)

Section 11 of Article 9 of the Constitution as now amended designates the securities in which permanent endowment funds may be invested, and does not include "state bonds." (1941 Session Laws, page 480; History of Section 11 of Article IX; Constitutional Proceedings, Vol. I, pp. 773, 861; Vol. II, pp. 1287, 1331, 1451; Amendment proposed Session Laws 1899, p. 330, adopted Nov. 6, 1900, effective Nov. 28, 1900; S. L. 1927, H. J. R. 10, p. 589, adopted Nov. 6, 1928, S. L. 1929, p. 689; S. L. 1939, S. J. R. 5, pp. 670, ratified Nov. 5, 1940, S. L. 1941, p. 480.)

A constitutional provision which is positive and free from all ambiguity must be accepted by the Courts as it reads. (Vol. 11, Am. Jur., Constitutional Law, Par. 64, p. 678; Powell v. Spackman, 7 Idaho 692, 65 P. 503.)

Bert H. Miller, Attorney General, J. R. Smead, Leo Bresnahan, M. Casady Taylor and Robert M. Kerr, Jr., Assistant Attorneys General, for defendant.

At this point we submit, first, that there never was in fact a legislative proposal to eliminate state bonds; second, that no question of so doing was submitted to the voters pursuant to the 1927 resolution. The only change made, therefore, was to add county and municipal bonds to the list of permitted securities. (Constitution, Article XX, Sec. 1; McBee vs. Brady, 15 Idaho 761.)

Whatever was intended in 1939, it is certain that, just as in 1927, no question of eliminating state bonds was presented to the electors. The question which was submitted contains no suggestion of any such elimination. This being the case, the Constitution was not amended by eliminating those bonds any more than it was pursuant to the resolution of 1927. The question submitted must state in some appropriate verbiage that which is proposed to be accomplished by the amendment. A failure so to state nullifies the proposed and attempted amendment even though the electors vote in favor of the proposition which is in fact submitted. (Lane v. Lukens, 48 Idaho 517.)

AILSHIE, J. Morgan and Holden, JJ., concur. Budge and Givens, JJ., dissent.

OPINION

AILSHIE, J.

This action was brought by the State on relation of F. B. Kinyon, as a taxpayer on his own behalf and on behalf of other taxpayers of the state, for a writ of prohibition, commanding the defendant, State Treasurer, to desist from any further proceedings or action for sale to the Department of Public Investments (hereinafter called the Department), of certain bonds, denominated, "1941 Idaho State Institutions Improvement Bonds," amounting to $ 659,100, and authorized by chap. 186, 1941 Sess. Laws. The Department applied to the Board of Land Commissioners for authorization to purchase the bonds with "permanent educational funds" under its control; and the Board authorized the purchase to be made, as provided by 1933 Sess. Laws (Extra. Sess.), chap. 13, as amended by chap. 123, 1941 Sess. Laws. Approval of the purchase was also given by the State Board of Examiners, who directed the defendant to sell the bonds to the Department. The Department made a written bid or offer for purchase of the bonds, at their face value, bearing 2 1/2% interest, payable semiannually beginning July 1, 1941.

Alternative writ of prohibition issued May 19th and was returned the same day. The matter was heard on motion to quash writ. The motion was based on the grounds that "State bonds" were included in the enumeration of securities provided for in sec. 11, art. IX of the state constitution as originally worded and adopted; and that no question, as to eliminating state bonds from the types of security has ever been submitted to the electors as required by sec. 1, art. 20 of the constitution.

Sec. 11, Art. IX of the constitution, as adopted in 1889, reads as follows: (Idaho Const. Convention, vol. II, p. 2072.)

"The permanent educational funds, other than funds arising from the disposition of university lands belonging to the state, shall be loaned on first mortgage on improved farm lands within the state, or on state or United States bonds, under such regulations as the legislature may provide; Provided, That no loan shall be made of any amount of money exceeding one-third of the market value of the lands at the time of the loan, exclusive of buildings."

The question for our decision is: Does the constitution, sec. 11, art. IX, since its amendment in 1928, authorize the loan of "The permanent educational funds other than funds arising from the disposition of university lands . . . . on state . . . . bonds . . . ."

It is conceded that the original section so provided and that the amendment of 1900 (1899 Sess. Laws, p. 330) did not make any change in reference to acceptance of state bonds. It only added other securities; viz., "school district" bonds and "state warrants," to the list of acceptable securities. By the amendment proposed by H. J. R. No. 10, in the 1927 Session of the legislature, ('27 S. L., p. 589), the word "state" was omitted from the enumeration of the securities that might be accepted, so that, as adopted at the general election in 1928, the section, as amended, published and submitted to the voters, read as follows:

"The permanent educational funds other than funds arising from the disposition of university lands belonging to the State, shall be loaned on first mortgage on improved farm lands within the State, United States, county, city, village or school district bonds, or State warrants, under such regulations as the Legislature may provide: Provided, That no loan shall be made on any amount of money exceeding one-third of the market value of the lands at the time of the loan, exclusive of buildings."

Following that election, the 1931 Session of the legislature authorized compilation, annotation, and publication of the Codes, including the state constitution, which culminated in the publication and adoption of what is known as the Idaho Code Annotated 1932. Art. 9, sec. 11, was carried into this publication as submitted by the 1927 session and adopted at the succeeding election. (Quoted, supra.) A further amendment to the same section and article was submitted by the 1939 session, (S. J. R. No. 5, '39 Sess. Laws, p. 670) and adopted by the people at the subsequent election in 1940, ('41 S. L., p. 480) by which latter amendment the right to loan the permanent educational funds on first mortgages on improved farm lands was excluded from the list of acceptable securities. This amendment also omitted state bonds from the list of acceptable securities; the amended section reading as follows:

"The permanent endowment funds other than funds arising from the disposition of university lands belonging to the state, shall be loaned on United States, county, city, village or school district bonds or state warrants, under such regulations as the legislature may provide."

It is contended by the attorney general that the proposal to omit or delete state bonds from the list of acceptable securities was never...