129 Neb. 342 | Neb. | 1935
The plaintiff, Bollen, member of the Nebraska state railway commission, sought an injunction against Price,
The act of 1933 places the administration of the law in the hands of the Nebraska state railway commission. The fees to be collected as provided by the act for the inspection of grain and issuance of certificates of storage were one-half cent a bushel with a minimum of $5 on each application. There came the nation-wide corn loan program of the national administration. This law fitted well into the plan and was at once put into use. Under it many thousands of certificates of storage were issued and loans made thereon. The volume of business so far exceeded any expectations entertained in the enactment of the law that what at the time seemed a reasonable provision for necessary expenses of enforcement of the act produced a fund largely in excess of the necessities, to the amount named. These facts being apparent to the railway commission and the legislature th,at convened in January, 1935, they determined that, considering the business theretofore actually transacted, a fee of $3.80 per application, instead' of $5 fixed by the act, would have been sufficient, and that this excess amount ought in justice to be returned respectively to those who had paid it.
The result was the enactment of H. R. 131, Laws 1935, which recites these and other facts in the preamble and enacts that the persons paying such fees shall have returned to them the excess over $3.80, and that the railway commission shall from its records determine the several
The senate added a provision to the act to the effect that the auditor should thereupon issue a warrant to the railway commission for the gross sum so represented and that the railway commission should distribute the funds to the parties so entitled — and thereby precipitated this lawsuit.
It is urged on behalf of appellant that the act is violative of three provisions of the Constitution designated as section 25, art. Ill, which provides: “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law, and on the presentation of a warrant issued by the auditor thereon;” and section 25, art. IV, which provides: “All fees that may hereafter be payable by law for services performed, or received by an officer provided for in this article, by virtue of his office shall be paid forthwith into the state treasury;” and section 9, art. VIII, which provides: “The legislature shall provide by law that all claims upon the treasury shall be examined and adjusted by the auditor and approved by the secretary of state, before any warrant for the amount allowed shall be drawn.”
This act, H. R. 131, provides:
“The Nebraska state railway commission shall, from its. books and records, determine the amount due, if any, to. every person who has paid or may pay the fee required by section 88-323, Comp. St. Supp. 1933. The commission shall prepare a list of the names of such persons, their post office addresses and the amount due each of such persons, and shall certify such list in the form of voucher, under the seal of the commission, to the state auditor of Nebraska. The state auditor, upon receipt of such list, shall issue a warrant to the Nebraska state railway commission for the total sum certified in said voucher payable from the grain, warehouse fund in the state treasury.
*346 “When such warrant has been issued and properly signed by the proper state officers, the state auditor shall deliver the same to the Nebraska state railway commission, and upon receipt of the same the Nebraska state railway commission shall disburse the said funds to the parties entitled thereto and according to said list as shown by the records and files of said commission.”
The last two paragraphs as have been quoted from H. R. 131, Laws 1935, furnish the basis for the contentions of plaintiff herein.
In argument as to rules of construction proper to be applied, reference has been made to certain propositions heretofore announced by this court to which attention had perhaps better first be given.
There is argument as to the proper designation to be given this fund, which it is conceded is properly in the state treasury, whether it consists of excess fees or whether it is a trust fund without a name. We do not think it is material by what name it' shall be designated. The facts are it was paid and collected as fees under the provisions of the act of 1933 and, under the rule of State v. Moore, 46 Neb. 373, was not merely entrusted to the state treasurer as custodian, but was actually in the treasury and became a part of the state’s funds entrusted to the treasurer in his official capacity as such officer.
It is further suggested upon the authority of State v. Standard Oil Co., 100 Neb. 826, Century Oil Co. v. Department of Agriculture, 110 Neb. 100, and Century Oil Co. v. Department of Agriculture, 112 Neb. 73, that the fund is unconstitutionally held or that on some theory this act of 1933 has been smitten with unconstitutionality. We fear there have been some rather loose expressions in reference to this matter of unconstitutionality. The theory of the oil cases, which is the settled doctrine of this court, is that, the measure having been enacted as a proper measure of control and not as a revenue measure, the extent of its authority is to provide such fund as shall be reasonably necessary and sufficient to the accomplishment of the pur
Considering now the further argument as to the matter ■of whether the act of 1935, H. R. 131, constituted a sufficiently definite and specific appropriation of the fund to the purpose intended, while we are constrained to the opinion that the designation of the return of $1.20 out of each $5 that had been paid into this fund by the respective .applicants is sufficiently definite to meet all constitutional requirements, the matter may be set at rest so far as this case is concerned for the reason that the legislature still in session at the time this case was submitted enacted an .additional appropriation measure with the emergency clause (H. R. 689) specifically appropriating the sum of $127,000, to the purpose designated by the prior act (H. R. 131.) The act further provides an appropriation of $4,-326.44, for the purpose of paying extra expenses of the railway commission in determining the amount due the several persons and the making of refunds, thus indicating rather clearly the intention and purpose of the legislature that the refunding of these amounts to the several beneficiaries should be accomplished, in its final details, by the railway commission. The argument, therefore, as to the .sufficiency of the appropriation under section 25, art. Ill •of the Constitution, may be dismissed without further consideration.
The argument as to section 25, art. IV of the Constitu
We proceed then to consideration of the third constitutional question, namely, whether the procedure as prescribed by this act covering the distribution of the money is a sufficient compliance with section 9, art. VIII of the Constitution. The argument of the plaintiff is to the effect that this section of the Constitution requires the issuance of a particular warrant to each of the beneficiaries by the state auditor and that it may not be accomplished by the issuance of one warrant to the railway commission which is charged with thereupon making the distribution according to its records as made and certified to the auditor. The legislature has full authority to provide for the proper vouchering of claims which are to be examined and adjusted by the auditor and has done so in the provisions of sections 77-2612, 77-2613, 77-2614, Comp. St. 1929. It is obvious that the legislature has and must have a wide latitude in providing for the appropriation and disbursement of funds, and that in so doing its authority is paramount, subject only to the requirement that the provisions shall be within the requirements of the Constitution. This provision of the Constitution does not undertake to specify the details of the manner in which claims shall be presented or vouchered. It requires only that the legislature provide by law that the same shall be presented that they may be examined and adjusted by the auditor and approved by the secretary of state before any warrants shall be drawn. The argument presented assumes that the method prescribed by the act under consideration is not in
The judgment of the district court was therefore right and it is
Affirmed.