In re Loan of School Fund

| Colo. | Jan 15, 1893

Mr. Justice Elliott

delivered the opinion of the court.

In view of the stringent provisions of our state constitution, we are of the opinion that Senate Bill No. 11, as submitted for our consideration, is unconstitutional.

Section 3 of article 9 of the Constitution is an imperative mandate binding upon all departments of the government. It provides, among other things, that “ the Public School fund. of the state shall forever remain inviolate and intact; ” and further, that no part of this fund, principal or interest, shall ever be transferred to any other fund or used or appropriated except as herein provided.” It is true, the section provides that the Public School fund shall be “ invested as may be by law directed; ” but a further requirement is, that such fund shall be “ securely and profitably invested.” The security of the investment is of the first and highest importance.

It may in some cases be difficult to determine in advance whether a proposed investment of the school fund will be secure as well as profitable. In general, legislation respecting sucb matters must be left to the wisdom and discretion of the general assembly and of the chief executive of the state. But in this case, there would seem to be no room for a difference of opinion. By the terms of the bill submitted, it is proposed to loan $650,000 of the Public School fund to the general revenue funds of 1887,1888 and 1889. The bill provides for the repayment of such loan out of the- “ excess revenues for the years 1892 and subsequent years and not otherwise appropriated.” But no certain amount or definite portion of the revenues of 1892, or any subsequent year, is set apart for the payment of such loan; no guaranty or assurance is given that there will be any excess revenue for 1892 or any subsequent year; and no other means of repayment is provided.

Again, the bill proposes to devote the proceeds of the loan, that is, $650,000 of the Public School fund of the state, “ to redeem and cancel the warrants of 1887, 1888 and 1889,’’ now held by the state treasurer, “ as an investment iri the Public School Permanent fund, the State University fund, and the Internal Improvement fund, permanent and income.” What proportion of the warrants so held belongs to each of these several funds, does not appear ; but presumably in the aggregate the warrants are equal to the full amount of the proposed loan. It would seem that if section 16 of article 10 of the Constitution was complied with in respect to the revenues and appropriations for the years 1887, 1888 and 1889, respectively, the payment of the warrants for those years has already been provided for, and so the proposed loan is unnecessary. If the payment of the warrants for those years was not provided for by valid appropriations as the constitution requires, certainly there would be no security in further involving the Public School fund in such transactions. As was said in the case of The People ex rel. Seeley v. May, 9 Colo. 92, “the intention would seem to be that the annual state tax should meet the annual state expenditure.”

If the public school funds of the state, or any part thereof, are to be invested in state warrants, the investment should be in warrants of unquestionable validity, — in warrants based upon constitutional appropriations,- — -in warrants the payment of which has been provided for with the greatest certainty. A loan of the Public School fund to be repaid out of contingent or doubtful future revenues, as provided in the. bill submitted, cannot be considered as “securely invested” and would, therefore, be without constitutional sanction.

According to the several provisions of our constitution, no money can be paid out of the state treasur)" except upon a valid appropriation; nor can a valid appropriation be made unless the revenue within constitutional limits be provided for its payment. In re Appropriations, 13 Colo. 325; In re House Resolutions, No. 25, 15 Colo. 602" court="Colo." date_filed="1890-09-15" href="https://app.midpage.ai/document/in-re-house-resolution-no-25-6562087?utm_source=webapp" opinion_id="6562087">15 Colo. 602; Mute & Blind Institute v. Henderson, ante p. 98; In re Continuing Appropriations, ante p. 192.

Our attention is called to section 3 of article 11 of the Constitution. This section affords but little relief. We are advised that the valuation of taxable property within the state has, ever since 1887, more than equaled one hundred millions of dollars. Hence, the state cannot contract a debt to provide for casual deficiencies of the revenue in excess of one hundred thousand dollars ; and so the loan provided by the bill cannot be upheld under this provision.

We must not be understood as expressing any opinion one way or the other as to the validity of the warrants mentioned in section 3 of the bill as submitted. We have not been in any way advised as to their character, and have not had the assistance of, and briefs or arguments of, counsel. Express constitutional authority (sec. 3, art. 6) constrains us to render an opinion in this manner.