State v. Banks

• Decision Date: 26 April 1923
• Citation: 37 Idaho 27,215 P. 468
• Parties: STATE OF IDAHO, on the Relation of C. C. MOORE, Individually, and as Governor of the State of Idaho, Plaintiff, v. D. F. BANKS, Treasurer of the State of Idaho, Defendant
• Court: Idaho Supreme Court

215 P. 468

37 Idaho 27

STATE OF IDAHO, on the Relation of C. C. MOORE, Individually, and as Governor of the State of Idaho, Plaintiff, v. D. F. BANKS, Treasurer of the State of Idaho, Defendant

Supreme Court of Idaho

April 26, 1923

MANDAMUS-STATUTE EMBRACING TWO DISTINCT SUBJECTS UNCONSTITUTIONAL.

1. Chapter 90, Sess. Laws 1923, is repugnant to the provisions of sec. 16, art. 3, of the constitution of Idaho, in that it embraces more than one subject and matters properly connected therewith. The negotiation and sale of general fund treasury notes and the negotiation and sale of refunding bonds are two separate and distinct subjects neither of which is properly connected with the other. Neither of these subjects can be by any fair intendment considered as falling within the subject matter legislated upon or necessary as means to the attainment of the other.

2. Where a legislative act embraces two distinct subjects, in contravention of the provisions of sec. 16, art. 3, of the constitution, and one appropriation is made in the act to supply funds to carry both into effect, without indicating what proportionate share was intended for each purpose, the entire act must fall.

Original proceeding in mandamus to compel issuance of refunding bonds. Alternative writ quashed and action dismissed.

Alternative writ quashed and action dismissed.

A. H Conner, Attorney General, and James L. Boone, Assistant, for Plaintiff.

H. B. No. 129 does not contravene the provisions of art. 3, sec. 16, of the constitution of the state. (Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. 201, 68 P. 295; State v. Pioneer Nurseries Co., 26 Idaho 332, 143 P. 405; Kessler v. Fritchman, 21 Idaho 30, 119 P. 692; State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259; Cooley's Const. Limitations, 7th ed., 205; Lewis' Sutherland on Statutory Construction, 2d ed., 184; 25 R. C. L., secs. 82-92, 834-847; Veatch v. City of Moscow, 18 Idaho 313, 21 Ann. Cas. 1332, 109 P. 722; Dillon's Municipal Corp., sec. 202; 5 McQuillin, Municipal Corp., sec. 22; Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234.)

Art. 3, sec. 16 should receive a liberal construction. (Pioneer Irr. Dist. v. Bradley, supra; Winters v. City of Duluth, 82 Minn. 127, 84 N.W. 788; State v. Board of Commrs., 21 Nev. 235, 29 P. 974; Johnson v. Harrison, 47 Minn. 575, 28 Am. St. 382, 50 N.W. 923; Great Northern Ry. Co. v. Duncan, 42 N.D. 346, 176 N.W. 992; 36 Cyc. 1017; Lewis' Sutherland on Statutory Construction, sec. 115; 25 R. C. L., sec. 85, p. 837.)

An act does not violate art. 3, sec. 16, which includes matters germane to and bearing a natural relation with the general subject of the act. (Pioneer Irr. Dist. v. Bradley, supra; 25 R. C. L., sec. 90, p. 843; Lewis' Sutherland Stat. Const., sec. 118; Cooley's Const. Limitations, 202-214.)

State finance is the "subject" of House Bill No. 129. Considered in a more restricted sense, however, House Bill No. 129 relates to state securities, undoubtedly a phase of state finance.

The subject of an act may be constructed by linking together the various minor matters embraced within the single subject indicated in the act. (Pioneer Irr. Dist. v. Bradley, supra; Great Northern Ry. Co. v. Duncan, supra.)

Dean Driscoll, for Defendant.

It appears on the face of House Bill No. 129, and particularly in sec. 5, that the act embraces more than one subject and matters properly connected therewith, in that it not only appropriates moneys for the payment of expenses incident to the negotiation and sale of refunding bonds, but also contains a like appropriation for expenses incident to the negotiation and sale of general fund treasury notes, and is therefore violative of sec. 16, art. 3, of the constitution of the state. (Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. 201, 68 P. 295; Hailey v. Huston, 25 Idaho 165, 136 P. 212; State v. Pioneer Nurseries Co., 26 Idaho 332, 143 P. 405.)

BUDGE, C. J. Dunn and Wm. E. Lee, JJ., concur. MCCARTHY, J., Mr. Justice William A. Lee, Dissenting.

OPINION

BUDGE, C. J.

This is an original action for writ of mandate to compel defendant, State Treasurer, to issue and sell certain refunding bonds under the provisions of an act of the Seventeenth Session of the Legislature, designated as House Bill 129, Sess. Laws 1923, p. 105. The application for the writ alleges that there is $ 776,500 of outstanding bonded indebtedness which should be refunded because it would result in a saving to the state. An alternative writ was issued and defendant made his return thereto in which he justified his refusal to act upon the alleged ground that the statute is unconstitutional. Plaintiff demurred to the return, and the case was heard and submitted upon the demurrer. The provisions of the act are as follows:

"Section 1. The state treasurer, with the approval of the governor, is hereby authorized and directed to compromise and refund the bonded indebtedness of the state of Idaho, or any portion thereof, whenever it may be done at a saving to the state, by issuing and selling refunding bonds pledging the full faith and credit of the state of Idaho; Provided, That such refunding bonds do not bear a rate of interest greater than that borne by the bonds to be refunded nor run for a period greater than twenty years; and Provided, further, That the total amount of such refunding bonds issued at any one time does not exceed the total amount of bonds to be refunded at such time.

"Sec. 2. The refunding bonds referred to in Section 1 of this act may be sold for cash only, and to the highest and best bidder at a public sale advertised for at least five days prior to such sale; Provided, However, That any and all bids may be subject to rejection.

"Sec. 3. There is hereby created a fund in the state treasury to be known as the 'Bond Refunding Fund.' All moneys received from the sale of refunding bonds in accordance with the provisions of this act shall be by the state treasurer deposited to the credit of such fund. The bonds to be retired and paid shall be paid from any moneys in such fund, and an appropriation is hereby made for such purpose from any moneys that may accrue to such fund; . . . .

"Sec. 4. Whenever refunding bonds have been sold and the bonds are ready for delivery, the state treasurer shall advertise in at least one issue of a paper published in New York City, and any other papers he may consider necessary, an official notice calling the bonds to be retired and paid, stating that interest will cease on the next coupon due date, and that the principal and interest of such bonds will be paid at the office of the state treasurer or at the office of the fiscal agent of the state of New York, on or after the next interest due date.

"Sec. 5. There is hereby appropriated out of any moneys in the general fund of the state treasury, not otherwise appropriated, the sum of three thousand dollars, to pay any expense, including legal services, incident to the negotiation and sale of general fund treasury notes and refunding bonds. . . ."

The constitutionality of this act is questioned. It is first contended that section 5, appropriating moneys out of the general fund to pay expenses incident to the negotiation and sale of general fund treasury notes and refunding bonds, is in violation of sec. 16, art. 3, of the constitution, which provides that:

"Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title."

An examination of the title and the act discloses that the subject is embraced in both and therefore in compliance with sec. 16, art. 3, but the act is still repugnant to that section, for the reason that it embraces more than one subject and matters properly connected therewith. The negotiation and sale of general fund treasury notes and the negotiation and sale of refunding bonds are two separate and distinct subjects. The former has nothing to do with the indebtedness of the state (State v. Eagleson, 32 Idaho 276, 181 P. 934; State v. Eagleson, 32 Idaho 280, 181 P. 935), while the latter has. The former is in no sense properly connected with the latter. The acts are individualized. Each is independent of the other and neither can be, by fair intendment, considered as falling within the same subject matter legislated upon or necessary as ends and means to the attainment of each other. Neither is directly or indirectly related to the same subject. In the case of Hailey v. Huston, 25 Idaho 165, 136 P. 212, this court, in discussing sec. 16, art. 3, with reference to an appropriation act increasing the compensation of the librarian of the State Historical Society, where the title of said act or the act failed to repeal a prior act fixing the salary for such officer, in the course of that opinion says:

"The subject of the increase of any salary is not expressed in the title of the appropriation act, and as that subject is not expressed in the title of the act, an increase of salary cannot be included in such act. And if it were included in the title to said act, the act would be obnoxious to the constitution under another provision of sec. 16, which declares that every act shall embrace but one subject and matters properly connected therewith. A general appropriation act includes one subject and an increase in the salary of an officer is another and distinct subject, and being two separate and distinct subjects, they are prohibited from being combined in one act by the provisions of said section."

With more logic it can be said that the Hailey-Huston ...