22 Colo. 86 | Colo. | 1896
delivered the opinion of the court.
These cases, having been consolidated for the purpose of the argument, will be considered together. They are a part of the crop of litigation which springs from the custom of the legislature, at each biennial session, to appropriate money in excess of the revenues of the state, in violation of express constitutional mandates, leaving the various claimants to contest in the courts their rights to the actual revenue.
This practice on the part of the lawmaking power has led to expensive and vexatious litigation, to the impairment of the credit of the state, resulting not infrequently in the deprivation of some of our most deserving institutions of funds absolutely .necessary for their successful operation. To the credit of the legislature, be it said, however, that such unconstitutional appropriations have gradually decreased in amount during the six years that have elapsed since the first opinion of this court was rendered upon the subject, which is entitled In re Appropriations, 13 Colo. 316.
The seventh general assembly, which convened shortly prior to the rendition of that opinion, appropriated seven hundred and fifty thousand dollars ($750,000) for the years 1889 and 1890 in excess of the estimated revenues of the state for those year's, and for this reason in violation of the constitution, while the appropriations made by the tenth general assembly only exceeded the revenue for the year 1895 by about seventy-five thousand dollars ($75,000). Justice to the legislative department requires the further statement that the deficiency for the year 1895 arose from a falling off in the revenues of that' jrnar, not anticipated at the time of the legislative session.
Questions growing out of appropriations beyond the constitutional limit have of late years received the careful attention of the courts. As a result of the cases that have reached this court for determination, certain principles of constitu
The leading opinion in this state in reference to the subject was written in the case in 13 Colo, already referred to. In that case it was determined, inter alia, that the general assembly is inhibited by the constitution from making appropriations or authorizing expenditures in time of peace in excess of the revenue applicable for such appropriations, and that if acts are passed attempting to authorize such expenditures, such acts are void and of no effect. It was further held that no state officer could in any wa}' legally approve or recognize legislation making appropriations beyond the limit fixed by the constitution. And what is of special importance in this case, it was also held that in the event of deficiency of revenue to meet the appropriations, the necessary expenses of the executive, legislative and judicial departments of the state, and interest on any public debt, were entitled to preference. These principles have been followed and approved in a number of cases. Henderson v. The People, 17 Colo. 587; Institute v. Henderson, 18 Colo. 98; Goodykoontz v. The People, 20 Colo. 374.
It has also been determined that where appropriations are made in excess of the revenue, priority of date of the taking effect of the acts making such appropriations must govern after preferred appropriations are discharged. Within constitutional limits the general assembly may appropriate the public funds of the state as it chooses, but when it has once reached the limit, further appropriations are of no force and effect, for the reason that there is no revenue available to meet such appropriations. Goodyhoontz v. The People, supra; The People v. Board of Equalization, 20 Colo. 220.
As some of the opinions to which reference has been made were delivered in answer to questions propounded by the
This court has frequently given expression to the reluctance with which, in the discharge of its sworn duty, it approaches the consideration of questions affecting the constitutionality of any act of the legislative department. To examine such questions with the utmost care and circumspection, and to be diligent in upholding all legislation which is not shown to be unconstitutional beyond all reasonable doubt, is required by a rule founded upon the soundest considerations of public policy, and universally recognized and approved.
The issues presented by the governor’s questions In re Appropriations involved the constitutionality of many acts of the legislature. This legislation covered a wide field and affected vast and varied interests, while many of the statutes were of conceded merit. In view of these circumstances, it was not possible for the court to overlook the gravity of the situation. No cause which has been determined by this court in recent years has received more serious consideration than did the examination of those interrogatories propounded by the executive.
The conclusions announced in the other cases cited are but little more than the application of the principles promulgated in the case in 13 Colo, to new and peculiar facts. These cases are not only stare decisis, but the legislature having them in view at the time of making the appropriations now in question, furnishes an additional reason against a departure in the present controversy from the principles heretofore
First. What officers belong to the executive department, and as such have preferred claims against the state ?
Second. The inmates of the penitentiary, insane asylum and similar institutions being confined involuntarily, does this circumstance give such institutions a preference to funds over other institutions, resort to which is voluntary on the part of the inmates ?
Third. Did the act of 1895, making an appropriation for the State Normal School, and requiring the state board of equalization to levy a tax of one sixth (■}') of a mill annually for the support of such institution, authorize that board to extend such special mill levy upon the assessment for the year 1895 ?
We shall address ourselves to the consideration of the foregoing questions in the order in which they are stated. The solution of the first is particularly important in this ease, by reason of the constitutional provision to the effect that the general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the legislative, executive and judicial departments of the state, interest on the public debt, and for public schools ; the argument upon this provision advanced by counsel for the Soldiers’ and Sailors’ Home being that appropriations for certain public officers to be found in the general appropriation act are void for the reason that such officers and their assistants are not a part of either of the three departments mentioned, and therefore the money so attempted to be appropriated was not in fact appropriated, and should be used to meet other appropriations constitutionally made.
As to what officers constitute the executive department of the state is a question somewhat difficult of solution. Article III. of our constitution, which has its counterpart in the constitution of every state in the Union, divides the powers
“The executive department shall consist of a governor, lieutenant-governor, secretary of state, auditor of state, state treasurer, attorney general, and superintendent of public, instruction.” * * *
The maxim “ expressio unius est exelusio alterius ” is not, however, of universal application. It has its exceptions, one of which is that when there is reason for mentioning one thing and not the other, the absence of .any mention of the latter will not be considered as an exclusion. Sedgwick on Statutory Construction, page 31; Sutherland on Statutory Construction, sec. 329.
In declaring what officers should constitute the executive department of the state, it was not intended that the legislature should not create new executive officers. Such a presumption would do violence to the intelligence of the framers of that instrument, and of the people who adopted it. It is, we think, the purpose of this section to provide for such officers of the executive department as the members of the constitutional convention deemed absolutely indispensable; leaving if to the legislature to create new offices as the growth of the state and experience might suggest, and to abolish the same, but without authority to abolish any of those enumerated. The constitution of the United States provides that
A provision of the constitution of the state of Washington is identically the same as section 1 of article IV. of our constitution, which reads: “ The executive department shall consist,” etc. The provision came before the supreme court of Washington for construction in the case of the State v. Womach, 4 Wash. Rep. 19. That was a case founded upon a statute making it a criminal offense for any person to bribe or attempt to bribe certain designated officers or “ any executive, judicial or ministerial officer.” Leach and others were members of the state board of education, and the defendant was charged with attempting to influence by bribery the vote of Leach with reference to certain text-books to be used in the common schools of that state. Leach not holding an office specifically mentioned in the statute, it was sought to include him within its provisions as an executive officer. The indictment was demurred to for the reason, among others, that Leach was not a member of the executive department of the state. This demurrer was sustained in the lower court, but the supreme court, in reversing the judgment, held that the constitution provided for three departments of the government, the executive, judicial and legislative, and that when a state officer is appointed or elected, he must necessarily belong to one of these departments.
The same provision of the constitution upon which reliance is here placed to show that certain officers are not members of the executive department was relied upon in that case, and as to it the court says :
“ The language of the section is mandatory. It says ‘ the executive department shall consist,’ etc. If the contention of the respondents is correct, that the intention of the section was to limit the executive officers of the state, their further position that the legislature can by subsequent enactment increase those officers, is untenable, for the essence
We shall not extend this opinion beyond the case presented, and for the purposes of this case it is sufficient to say that every officer of this state who holds his position by election or appointment, and not by contract, and whose duties are defined by statute, and are in their nature continuous, and relate to the administration of the affairs of the state government, and whose salary is paid out of the public-funds, is a public officer of either the legislative, executive or judicial department of the government, and may in the discretion of the legislature properly have his salary included in the general appropriation bill, and have the appropriation therefor take rank accordingly, and as the priority attaches not to the form of the act making the appropriation, but to the office, the priority of a particular appropriation will not be jeopardized if made by a separate act. Moreover, as the officers established by the constitution and those created by authorized legislative authority are usually required to keep offices, records, papers, etc., it is evident that expenses for these and like items may also be provided for as a part of the ordinary expenses of the legislative, executive and judicial departments of the government.
Our conclusions upon this branch of the argument may be summarized as follows: That as to those offices not expressly enumerated in the constitution, the legislature has plenary power to create or abolish the same, subject to well known constitutional restrictions. It may, subject to such restrictions, increase or diminish the salaries of the incumbents, but while the offices are in existence, and the officers
The second question has reference to appropriations for institutions, like the state penitentiary, where the inmates are confined against their will. The claim advanced in behalf of such institutions is that their appropriations should take precedence over others without reference to the date thereof. This argument is based upon what is denominated “ ex necessitate rei; ” it being urged that the penitentiary, although established by statute, is expressly recognized by the constitution, and that the experience of all civilized governments has demonstrated the necessity for such an institution ; that the punishment for many crimes is by confinement therein. Hence it is said to be the duty of the state to see that the inmates are properly fed and otherwise cared for, and that appropriations for this purpose constitute a preferred claim against the state.
It is claimed that this position finds some support in two opinions of this court. In re Appropriations, supra, it is said: “By section 16, article 10, of the constitution, appropriations and expenditures which may be made or authorized by the general assembly are of two general classes: First, ordinary, which include all kinds of appropriations and expenditures necessary and proper for the support of the government and its institutions in time of peace; second, extraordinary, or süch as are necessary ‘ to suppress insurrection, defend the state, or assist in defending the United States in time of war.’ ” And in the case of Goodykoontz v. The People, at the relation of the Soldiers’ and Sailors Home, supra, it is said: “ The Soldiers’ and Sailors’ Home, established by an act of 1898, is a state institution, and it is entitled to be supported by the state the s'ame as other state institutions, except that those institutions in which the inmates are involuntarily confined may be entitled to the preference in case the public revenues are not sufficient for all.”
So, also, too much stress has been put upon the language used in the case of Goodykoontz v. The People. It was apparent by the facts disclosed in that case that the scramble for public funds was becoming so fierce that unless such institutions could in some way be protected, the revenues of the state might be exhausted in advance of appropriations for the penitentiary, insane asylum, reform school, etc. However disastrous to the best interests of the state such a result might prove, we are now satisfied, upon mature deliberation and reflection, that this is a matter within the discretion of the legislature, and that such discretion is beyond control by the courts.
This conclusion necessarily results from the distinctive character and independence of each of the three departments of government; the power of the legislature over the revenues of the state being plenary, except as limited by constitutional provisions. We are therefore of the opinion that all arguments with reference to the necessities of the various state institutions, or as to the duty which the state owes to maintain its educational, penal, reformatory and other institutions, can have no weight with the judicial department, it being entirely beyond the province of the courts to revise legislative action in reference thereto.
Several of the state institutions have been provided for by special levies. These institutions were as.a precautionary measure made parties to this action, and have entered their appearance here, but we do not see that these special levies are in any way involved in the present controversy, except
The general appropriation bill contains an item of seventy-five thousand dollars ($75,000) for the suppression of the insurrection at Cripple Creek, and an item of one hundred thousand dollars ($100,000) for casual deficiencies of the revenues for the years 1898 and 1894. As bonds have been issued and sold and the proceeds devoted to the payment of these items, they are in no way involved in the present controversy, and need not be further mentioned.
The court fully indorses all that has been so eloquently said by counsel with reference to the duty of the state to make proper appropriations for the Soldiers’ and Sailors’ Home, and to provide against the inmates thereof being, turned out upon the world in their aged, infirm and helpless condition. At the same time, it must be remembered that it is beyond the power of the courts to validate an unconstitu
In the case of Goodyhoontz v. The People, at the relation of this institution, reported in 20 Colo., 374, it was held that the appropriation for this home, then under consideration, being of an earlier date than many of the appropriations made at the last preceding legislative session, the residue of the appropriation should be paid. Applying the same rule of priority to the case at bar, — the appropriation for the fiscal year 1895 being subsequent in point of time to other appropriations, which more than consumed all the revenues of that year, — it is clear that the district court erred in granting a peremptory writ of mandamus against the auditor in favor of this institution. Moreover, the same result necessarily follows, if the language of the act of 1895 be alone considered, as the appropriation is only “ to be paid out of anjr moneys in the treasury not otherwise appropriated.” As all the revenues were at the time “ otherwise appropriated,” there was nothing remaining for the act to operate upon.
In the case of Harry A. Lee, mining commissioner, it appears that the office was created in pursuance of a constitutional mandate; that when the incumbent was appointed he became by virtue of the constitution a member of one of the three departments of the government, and as such was entitled to have his salary, and those of his assistants, etc., paid by the state, as part of the expenses of such depart ments, without reference to the date at which the act took effect.
Among the institutions made parties to this proceeding is the Home for Dependent Children. This institution was established at the last session of the general assembly, as a result of a quickened public conscience upon the subject of the waifs of the state, a comprehensive understanding of the relation of the state to the child, and the demonstrated effect of such institutions in decreasing crime. It is urged, however, that the institution is too young to be entitled to much consideration until the demands of the older institutions are
And if the auditor, through inadvertence or otherwise, has issued warrants upon a later appropriation, this will afford no defense to an action brought by a party having the prior right. The auditor is not justified to act in these matters from caprice or to be governed by favoritism, but has a sworn legal duty to perform; hence, having issued warrants in full for nearly all of the appropriations for the year 1895, he cannot be permitted to refuse to do so for those of prior date upon the pretext that he was not required to issue any warrant in the absence of cash in the treasury to meet the same.
At the time the answers were filed the revenues of the state for the year 1895 were estimated by the auditor, but it is now conceded by counsel that subsequent events have demonstrated that such estimates were much too low, and as the first of these causes must be remanded for further proceedings, it is directed that the parties be allowed to amend their pleadings in that case, as they may be advised.
In the case of the mining commissioner, the judgment of the district court is affirmed. In the case instituted on behalf of the Soldiers’ and Sailors’ Home, the judgment of the lower court is reversed, and the cause remanded for further proceedings in accordance with this opinion.
