170 A. 473 | Vt. | 1933
This is a petition for a writ of mandamus to compel the fiscal officers of the State to pay to the petitioner and certain interveners their respective claims under section 48, part I, of the Income and Franchise Tax Act of 1931, Acts 1931, No. 17, part I, § 48. The petition is answered and demurred to. In view of the importance of the case to the State and its officers, and the facts being conceded, the demurrer will be construed as a motion,Clement v. Graham,
As is shown in Town of Brandon v. Harvey,
The defendants insist that payment of these claims should not be ordered because the Legislature has made no valid appropriation therefor.
That authority of law is indispensably necessary to an expenditure of State funds is unquestionable. Section 27, of chapter II, of our State Constitution provides that "no money shall be drawn out of the treasury, unless first appropriated by act of the legislature." It is to be noticed that this provision is couched in general terms. No particular requirements are specified. Its purpose is "to secure regularity, punctuality and *121
fidelity in the disbursements of the public money." Story, Const., § 1342. It is not, and was not intended to be, a restriction of the power of the Legislature over the public revenue. It is the province of that body to cast the appropriation in a mould of its own making. Under it, no particular form of expression is necessary. No technical words are required. All that is essential is that the Legislature, by a valid enactment, shall assign to a particular use a sum of money from the public revenues. Grout v. Gates,
It is not necessary that the money be in the treasury at the time the appropriation is made, People ex rel. McCauley v.Brooks, supra. Nor is it necessary that the exact sum be stated by the Legislature. Highgate v. State,
Nor does G.L. 540 stand in the way. Therein it is provided that "unexpended balances" shall be covered into the treasury on the first day of July in each year. Assuming that the term "unexpended balances" applies to such cases as the one here presented, the justice of these claims and the rights of these parties are not affected. When a sum is "covered" into the treasury, it ceases to be "earmarked" for the payment of a specific claim, and becomes available for the payment of any just debt against the State for which an appropriation has been made and which is not payable out of a particular fund. But it remains equally available for the payment of the claim for which it was originally appropriated, if funds are in hand when the auditor's order reaches the treasurer. It is all a matter of bookkeeping, and an honest creditor is not to be denied, simply because the payment of his claim may somewhat upset the treasurer's books. Moreover, as we were told at the argument, in a case like this, the "covering" process does not involve bookkeeping entries, even. We cannot accept the defendants' theory that the appropriations here in question lapsed on June 30, 1933. The Illinois case on which they predicate this claim, People v.Brown,
Section 4, No. 19, Acts of 1931, does not apply, as it only affects "sums hereinafter appropriated" — which do not include the appropriations made under No. 17, of the same year. Section 65, of No. 19, Acts of 1931, only refers to what had been done before its passage. And section 72, of No. 29, Acts of 1933, does not aid the State, for assuming, but by no means admitting, that section 48 conflicts with it, section 71 of that act contains this provision: "This act shall not be construed in any way to negative or impair the full force and effect of existing laws relating to taxation and for disposition of the funds raised thereby, * * * lawful rebates from the State treasury," etc. Section 48 is a law relating to the disposition of funds raised by taxation, which are lawful rebates from the State treasury. The most important question in the case, as we see it, challenges the constitutionality of section 48, of the Acts of 1931 hereinbefore referred to. As we have seen, an appropriation is therein made to each town and city of a sum equal to the excess of the amount received from intangible taxes in 1930, over the amount paid that year for the State taxes. The purpose of this section is apparent. It was to further compensate such towns and cities for loss of revenue. The Legislature knew that without this provision such towns and cities *124 would be prejudiced in a financial way by the new scheme embodied in the act referred to. The Legislature saw that the towns and cities of the State would fall into the following classes:
1. Those which, under the old law, received no taxes from intangibles. This group would gain by the new law a sum equal to the amount of their State taxes.
2. Those wherein the amount received from taxes on intangibles just equaled the amount of their State taxes. This group would gain nothing — lose nothing.
3. Those whose State taxes exceeded their intangible taxes. This group would gain just the amount of that excess.
4. Those which had received more from intangibles than their State taxes amount to. This group would lose an amount equal to that excess, and would be the only towns and cities in the State to make a net loss by the change in the law.
Here, then, was a situation which the Legislature thought it fair and wise to alleviate. The purpose which prompted the insertion of section 48, was to equalize the burden resulting from the change of the law, and not to create a favored group of towns and cities; and it is certain that the State may properly compensate towns for a burden put upon them for its benefit. Inre Opinion of the Justices,
If we admit that one municipality cannot be taxed for the sole benefit of another, and that the whole State cannot be taxed for the exclusive advantage of a particular town, it does not affect this case. There is nothing unconstitutional in a law that accords an advantage to a certain group of towns, provided the advantage is equally available to every town eligible to the group, and provided the grouping is properly based under the rule hereinbefore stated.
It is argued that these defendants, for lack of interest in the result, cannot question the constitutionality of this act. There has been some conflict in the decisions on this question. But it has come to be quite generally held — upon sound legal principles, we think — that where, as here, the officer involved is not a ministerial officer of subordinate authority, but one who will, under his oath of office, violate his duty or otherwise render himself liable by the performance of the act enjoined upon him by the statute in question, if invalid, he is sufficiently interested to enable him to raise the question of the validity of the statute in a mandamus proceeding to compel him to comply therewith. State v. Candland, 36 Utah, 406, 104 P. 285, 24 L.R.A. (N.S.) 1260, 1266, and note; State v. Clausen,
This must be so if, as we are taught, an unconstitutional statute is a mere nullity that confers no rights, imposes no duties, and affords no protection. Then, too, these defendants are, in a very real sense, the custodians and conservators of the public funds, which they are forbidden to disburse except as the Legislature appropriates them. It is their sworn duty to execute their respective offices "according to law." Upon the plainest legal principles, they have the right to raise the constitutional questions here presented. State v. Woollen,
Upon full consideration of all the questions argued, we are convinced that the petitioners are entitled to the relief prayed for and should no longer be denied.
Judgment that the prayer of the petition be granted, withoutcosts, and that a mandate issue forthwith directing the auditorof accounts to draw orders on the State treasurer for the severalamounts due to the petitioners as shown by the certificates ofthe commissioner of taxes, and directing the State treasurer topay the same, when presented, out of any funds in hand nototherwise assigned.