Stein v. Morrison

Decision Date13 January 1904
Citation9 Idaho 426,75 P. 246
PartiesStein v. Morrison, Governor.
CourtIdaho Supreme Court

CURRENT EXPENSE OF STATE-LEGISLATIVE APPROPRIATIONS-TAX LEVY-MEANS OF RAISING REVENUE-DEBT LIMITATION-CONSTITUTIONAL PROVISIONS-WRIT OF PROHIBITION-WHEN WILL ISSUE-EXECUTIVE ACTS-MINISTERIAL ACTS-TECHNICAL QUESTIONS-INTERPRETATION OF CONSTITUTIONAL AND STATUTORY PROVISIONS-JURISDICTION-JUDICIAL AND QUASI JUDICIAL ACTS.

1. Section 2 of article 7 of the constitution recognizes other methods of raising revenue than that by a tax levy on real and personal property.

2. It must be assumed by the courts, until the contrary appears that the legislature in making their biennial appropriations and tax levy to meet the same estimated the amount of revenue the state would derive from all other sources than that of a tax levy, and that sufficient levy was made to cover the difference between the total appropriation and the amount to be received from other sources than that of a tax levy.

3. The court must take judicial notice of the constitutional and statutory methods provided for raising revenues and augmenting the public funds, but cannot take notice of the amount so raised and received, and until it is shown that the total income for the two years for which legislative appropriations are made is not sufficient to meet such appropriations, the courts will assume that the legislature has kept within the constitutional limitations.

4. Article 7 of the constitution contemplates a complete scheme for the collection of taxes and revenue and the payment of the current expenses of the state, looking to the general purpose of ending the two years for which appropriations are made with the expenses of maintaining the state government for that period fully paid.

5. The public revenues may be appropriated by the legislature in anticipation of their receipt as was done by the general appropriation act of March 11, 1903 (Sess. Laws 1903, 308) and it is not necessary to the validity of such an appropriation that funds should be in the treasury at the time to meet the same.

6. Such appropriations do not constitute a debt or liability against the state within the provisions of section 1, article 8, of the constitution, but rather operate upon the incoming revenues for the same period of time in the nature of a cash transaction as contemplated by article 7.

7. So long as the financial system is carried out in accordance with the requirements of article 7, the current expenses of the state government cannot accumulate or ripen into a debt.

8. Petition examined and held that it does not state facts sufficient to entitle plaintiff to the relief demanded.

9. The courts cannot disregard the provisions of the constitution and laws, notwithstanding the fact that defenses interposed thereunder may be designated technical.

10. Under our constitution and form of government which recognizes the independence of the "three distinct departments of government," the judicial department cannot prohibit the executive department from acting within the recognized scope of that branch of the government.

11. The writ of prohibition as authorized by section 9 of article 5 of the constitution is the writ of prohibition as known and recognized at common law.

12. Such writ does not lie to prohibit or restrain purely ministerial acts, but runs to restrain encroachment of jurisdiction assumed to be exercised of a judicial or quasi judicial function.

13. Williams v. Lewis, 6 Idaho 184, 54 P. 619, distinguished; and expressly overruled in so far as it holds that the writ of prohibition will lie to restrain a purely ministerial act.

14. The word "jurisdiction," as used in section 4994 Revised Statutes, means the right to hear and determine a matter, and carries with it the idea of exercising judicial or quasi judicial functions.

15. When a statutory or constitutional provision is adopted from another state, where the courts of that state have placed a construction upon the language of such statute or constitution, it is to be presumed that it was taken in view of such judicial interpretation, and with the purpose of adopting the language as the same had been interpreted and construed by the courts of the state from which it was taken.

(Syllabus by the court.)

ORIGINAL application for writ of prohibition.

Ralph P. Quarles, for Plaintiff.

The act of March 16, 1903, the funding bond act, contravenes the constitution in three respects: It exceeds when added to the other expenditures authorized, the tax levies provided for the years of 1903 and 1904; it increases the debts and liabilities of the state beyond the limit fixed by section 1 article 8 of the constitution; it provides money for building a bridge and a wagon road authorized by local and special laws, contrary to the provisions of section 19, article 3 of the constitution; and it provides for raising money which must be repaid by taxation for a purely private purpose, and gives or lends the faith and credit of the state to a private corporation for private purposes contrary to the provisions of section 2, article 8 of the constitution. The issuance of the bonds provided for in this act amounts to an appropriation to the extent of the sale of the bonds, for purposes prohibited by the constitution, and the sale of them to the school fund, or exchanging them for money in the school funds, as defendants are doing, is unconstitutional, and unauthorized. (Idaho Const., art. 3, sec. 19, art. 7, secs. 11, 14, art. 8, secs. 1, 2, art. 9, sec. 3.) The power to create debts or liabilities and to levy taxes cannot exceed the limits fixed by the constitution. (Cooley on Taxation, 3d ed., 172, 173, and authorities cited; Cooley's Constitutional Limitations, 6th ed., 636.) The legislature cannot levy taxes for private purposes unless authorized by constitutional provisions to do so. Bounties to the producers of sugar, manufacturers of bridges, the grower of trees, private educational institutions, etc., are contrary to the genius of free institutions, amount to the confiscation of property for private uses, and such acts are universally held to be void. (Cooley on Taxation, 3d ed., 84; Cooley's Constitutional Limitations, 6th ed., 207, 587, 598, 599, 636; Loan Assn. v. Topeka, 20 Wall. 655, 22 L.Ed. 455; Cole v. La Grange, 113 U.S. 1, 28 L.Ed. 896, 5 S.Ct. Rep. 416; City of Parkersburg v. Brown, 106 U.S. 487, 27 L.Ed. 238, 1 S.Ct. Rep. 442; Michigan Sugar Co. v. Dix, 124 Mich. 674, 83 Am.St.Rep. 354, 83 N.W. 625; Sutherland-Innes Co. v. Village of Evart, 86 F. 597; Dodge v. Township of Mission, 107 F. 827, 46 C.C.A. 661, 54 L.R.A. 242; Bush v. Board of Supervisors, 159 N.Y. 212, 70 Am.St.Rep. 538, 53 N.E. 1121, 45 L.R.A. 556; Luques v. Dresden, 77 Me. 186; Allen v. Jay, 60 Me. 124, 11 Am.Rep. 185; Weismer v. Douglass, 64 N.Y. 91, 21 Am.Rep. 586; Opinion of the Judges, 58 Me. 590; Mather v. Ottawa, 114 Ill. 659, 3 N.E. 216; Ottawa v. Carey, 108 U.S. 110, 27 L.Ed. 669, 2 S.Ct. Rep. 361; Coates v. Campbell, 37 Minn. 498, 35 N.W. 366; Attorney General v. Eau Claire, 37 Wis. 400; Osborne v. Adams, 106 U.S. 181, 27 L.Ed. 129, 1 S.Ct. Rep. 41; State v. Adams, 15 Neb. 569, 20 N.W. 96; Sharpless v. Mayor, 21 Pa. St. 168, 59 Am.Dec. 759; Curtis v. Whipple's Admr., 24 Wis. 350, 1 Am.Rep. 187; Deal v. Mississippi County, 107 Mo. 464, 18 S.W. 24, 14 L.R.A. 622; People v. Salem, 20 Mich. 452, 4 Am.Rep. 400; Chapman v. City of New York, 168 N.Y. 80, 85 Am.St.Rep. 661, 61 N.E. 108, 56 L.R.A. 846; Lowell v. City of Boston, 111 Mass. 454, 15 Am.Rep. 39; Feldam v. City of Charleston, 23 S.C. 57, 55 Am.Rep. 6; State v. Osawkee Township, 14 Kan. 418, 19 Am.Rep. 99; Whiting v. Sheboygan etc. Ry. Co., 25 Wis. 167, 3 Am.Rep. 30.) These authorities establish beyond dispute that the legislature cannot raise money by taxation nor authorize issuance of the bonds of the state for the purpose of paying sugar bounties. The act creating or authorizing the construction of the Weiser bridge, and the Long Valley road, are each local and special, and contrary to the provisions of section 19, article 3 of the constitution. A law which applies or operates upon one portion of the state only, in terms and in effect, is local, while a law which operates upon or applies to one person or thing, or less than all of the persons and things in a given class, is special. This rule of statutory construction is too well recognized to require citation of authority. John A. Bagley, Attorney General, for Defendants.

The plaintiff has an adequate remedy at law. If the laws complained of are void, or authorize an illegal bond issue the plaintiff cannot be compelled to pay taxes on his property in payment of the same. No provision has yet been made for the payment of any of these bonds by a tax levy. The writ of prohibition will not issue to prohibit or restrain the acts of executive or ministerial officers. Excess of jurisdiction: The petition should show that the plaintiff called the defendants' attention to the excess of their jurisdiction. This is not done. (16 Ency. Pleading & Practice, 1128, note 5; 59 Cal. 471; 72 Cal. 572; 26 Ark. 52; 42 Mich. 239, 3 N.W. 913; 137 Mo. 681, 39 S.W. 276; 21 Nev. 47, 37 Am.St.Rep. 478, 24 P. 367; 4 Utah 382; 5 Utah 531; 47 La. Ann. 1, 16 So. 586.) The writ of prohibition issues to restrain acts of judicial tribunals boards, etc., only, and not ministerial officers or acts. (53 Cal. 291; 52 Cal. 111; 116 U.S. 574, 21 L.Ed. 735, 6 S.Ct. Rep. 510, 54 P. 619 (should be overruled); 57 Cal. 550; 63 Cal. 245; 62 Cal. 407.) The writ of prohibition will not lie against board of election commissioners. (54 Cal. 404; 20 N.Y. 540; 26 Mo. 253.) Nor against a tax collector. (High on Extraordinary Legal Remedies, 782; 53 Cal. 289.) Is not the remedy for...

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