190 P. 59 | Utah | 1920
Lead Opinion
This is an original proceeding in this court. By it the State Land Board, and the individual members thereof, as plaintiffs, seek, by mandamus, to compel the defendant State Auditor to issue a warrant upon the Treasurer of the state in favor of the State Land Board in the sum of $20,000, to
Tbe board, at a regular meeting, bad. determined to make sucb investment from tbe funds under its control. On February 25, 1920, the board drew its notice and requisition directed to tbe Auditor, requesting him to issue bis warrant on tbe State Treasurer for tbe said sum of $20,000. Tbe Auditor refused to recognize tbe request and issue the warrant as directed; hence this proceeding.
Tbe defendant demurred to tbe petition on the ground that it does not state facts sufficient to entitle plaintiff to tbe relief sought. On that state of tbe record the matter has been argued and submitted to this court for decision.
Lengthy arguments are submitted, both on the part of tbe Attorney General for plaintiffs and by counsel for defendant, respecting tbe duties of tbe State Auditor. Tbe petitioners contend that it is no part of his duty to inquire into tbe purpose or object for which tbe state funds are to be investedthat tbe Land Board having decided that it is to tbe best interests of tbe state to make tbe investment and having issued tbe requisition, and tbe Auditor having satisfied himself that there is sufficient money in the particular fund upon which tbe warrant is ordered drawn to pay sucb warrant, and finding that the board is a legally constituted agency with authority to make the requisition, it then becomes bis duty, and bis only duty, to issue tbe warrant in accordance with tbe notice and requisition. On the other band, it is tbe contention of defendant that it is bis duty to inquire into tbe authority of the board to make tbe particular investment and that if such investment is not authorized by law it then becomes bis duty to decline to issue tbe warrant, and that this court will not, by mandamus or other order, coerce or compel him to comply with tbe notice and requisition.
Comp. Laws Utah, section 5715, defines the duties of tbe State Auditor. Subdivision 16 thereof reads as follows:
“To draw warrants on the State Treasurer for the payment of moneys directed' hy law to he paid out of the treasury; hut no*216 warrant must be drawn unless authorized by law. Every warrant must be drawn upon the fund out of which it is payable and specify the apprdpriation applicable to the payment thereof.”
As we view this record, it is neither necessary nor desirable to enter into a lengthy discussion respecting the general duties imposed by law upon the Auditor. It may, however, be said, as a general proposition, which we think is within the authorities and supported by reason, that when money is appropriated for a particular purpose, and it is attempted to be used for a different purpose, then it is not only the Auditor’s privilege, but it his duty as well, to interpose an objection to such application of the funds. That
In State v. Tarpen, 43 Ohio St. at page 321, 1 N. E. at page 215, it is said:
“If bis [tbe auditor’s] duty is clear, its performance will not be excused by bis doubts concerning it, however strong or bonest they may be. It is not doubted that it is competent for an auditor to defend against an application for mandamus to compel bim to issue bis warrant on tbe treasurer, upon an allowance and order of tbe commissioners, by showing that tbe order was wholly unauthorized, and that tbe commissioners bad no authority to make it. State v. Yeatman, 22 Ohio St. 546. It is enough to say that in the present case no fact is shown which impeaches tbe original order of tbe commissioners, or excuses tbe auditor from obeying its command. His duty to draw bis warrant in favor of tbe relator is clear. That mandamus is tbe proper remedy to compel tbe performance of that duty is abundantly established by authority.”
The act which is known as chapter 1, tit. 101, Comp. Laws Utah 1917, gives to the State Land Board the direction, management, and control of all lands which have heretofore been, or which may hereafter be, granted to the state by the United States government or otherwise, with power to sell or lease the same for the best interests of the state and in accordance with the provisions of said chapter and the Constitution of the state. It is also made the duty of the State Land Board to invest the funds arising from the sale and lease of such lands “in the manner provided in this chap
“The hoard shall make the necessary orders for the investment or disposal of the funds derived from the sale and rental of public lands of the state, in the state treasury. Such funds shall be invested for and on account of the specific purposes for which the lands were granted, in government, state, county, city, or school district bonds. * * * Whenever the board shall order the investment of any part of such funds, said board shall notify the State Auditor of such order and the State Auditor shall draw a warrant for the amount stated in the notice in favor of the State Board of Land Commissioners, and the State Treasurer shall pay such warrant out of the funds designated. * * * ”
Defendant contends that, under tbe provisions of the foregoing statute,, the State Land Board is without authority to invest the state school funds in bonds of incorporated towns; that the act has undertaken to and does enumerate the political subdivisions whose bonds may be purchased by the board; that the mention or enumeration of certain municipalities or legal subdivisions of the state negatives the intent to authorize the investment in bonds of any other or additional political subdivisions. It is further contended that by the general statutes of the state cities and towns have different powers and are organized under different provisions of law; that their powers are not similar; and that the authority and powers delegated to trustees of towns are much more limited than those delegated to the governing bodies of cities. Therefore it is insisted that the Legislature, recognizing this difference, intentionally omitted the word towns from the statute enumerating the municipalities in the bonds of which the funds of the state may be invested.
It is the contention of the plaintiffs that Comp. Laws Utah 1917, section 5848, constitutes the rule of
“In tbe consrtuction of the statutes the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the Legislature or repugnant to the context of the statute: * * * (21) The word ‘town’'may mean incorporated*219 town and may include cities, and the word ‘city’ may mean incorporated town.”
In 36 Cyc. 1105, it is said:
“It is competent for the Legislature to enact rules for the construction of statutes, present or future, and when it has done so each succeeding Legislature, unless a contrary intention is plainly manifested, is supposed to employ words and frame enactments with reference to such rules.”
It is a well-recognized rule of construction that, in order to determine the intent of the Legislature, the words used must be considered in their relationship to the
The evident intent of the particular section under consideration was to direct or provide for the investment of the funds in the custody of the Land Board in securities usually considered safe, and such as would in due course be redeemed, both principal and interest. It is therefore pertinent to inquire what elements of security, if any, a city bond has over that of a town bond. In every ease the final answer to such inquiry must depend (a) upon the prior indebtedness of such city or town; (b) the value of the taxable property in such city or town. The ascertainment of these facts are questions that must, in tbe present case, be left to the determination of the Land Board. Authority is granted towns to issue bonds for certain specific municipal purposes, and we, as before indicated, assume that the bonds of the town of Orem have been regularly authorized and are legally issued. Such being the case, the town trustees have the same power and authority to levy taxes for the redemption of such bonds as have city officials. That the powers of the governing bodies of cities and towns may differ in other respects ought not to be of much influence in the determination of the question here involved.
The act in question was first adopted in 1897 (Laws 1897, chapter 37), and the provision above quoted was substantially the same in the original enactment as in the present law. It was carried forward into the revision of 1898 (Rev.
It has been the custom of the Land Board for more than fourteen years to invest funds in its custody in town bonds within this state. Such is a matter of public record, both in the Auditor’s office and in the office of the State Land Board. The Auditor and the State Land Board are
The Legislature is presumed to know the construction placed upon the language of the act by both the Land Board and the State Auditor. Notwithstanding that fact, the Legislature has met biennially, and there have been three revisions or compilations of the statutes since the original enactment. Furthermore, the particular section has been amended by the Legislature in 1911, 1915, and 1919. At no time, apparently, has the Legislature been dissatisfied with the interpretation of the Land Board and the State Auditor, but has given its affirmative approval by the reenactment of the section with full knowledge of the
“The executive and administrative officers of the government are hound to give effect to the laws which regulate their duties and define the sphere of their activities, and in so doing they must necessarily put their own construction upon such acts. * * * Now, such practical constructions are never binding upon the courts. * * * But it is a rule, announced by the Supreme Court of the United States at an early day, and which has since been followed in numerous cases, both in the federal and state courts, that the contemporaneous construction put upon a statute by the officers who have been called upon to carry it into effect, made the basis of their constant and uniform practice for a long period of time, and generally acquiesced in, and not questioned by any suit brought, or any public or private action instituted, to test and settle the construction in the courts, is entitled to great respect; and if the statute is doubtful or ambiguous, such practical construction ought to be accepted as in accordance with the true meaning of the law, unless there are very cogent and persuasive reasons for departing from it.”
In Bloxham v. Consumers’ Elec. L. & St. R. Co., 36 Fla. at page 540, 18 South, at page 446, 29 L. R. A. at page 509, 51 Am. St. Rep. at page 47, the court says:
“Besides, the judicial construction of statutes, there is known to the law another kind of construction. This kind of construction has especial application to statutes made for the regulation of the different departments of the government, and is the interpretation put upon them by the actual administration of them by such departments. As distinguished from judicial construction, it is called the practical construction of statutes. While not of such high authority as a judicial interpretation of the act, such practical construction of the class of statutes referred to, when not in conflict with the Constitution or the plain intent of the act, is of great persuasive force and efficacy.”
The second headnote to City of Louisville v. Louisville School Board, 84 S. W. 729 (119 Ky. 574), which correctly reflects the decision, reads as follows:
“The contemporaneous construction of legislation, covering a long period of time, by those charged with its enforcement, is highly persuasive of the correctness of that interpretation, especially*222 where the Legislature readopts the act without change after the construction has been given.”
The syllabus to State v. Sheldon, 79 Neb. 455, 113 N. W. 208, reads as follows.
“When a statute has for nearly forty years been practically construed by the officers whose duty it is to enforce it, and has during that time been several times re-enacted by the Legislature in substantially the same terms, such construction will be regarded as adopted by the Legislature, although the language of the statute would indicate a different meaning.”
The second beadnote to Van Veen v. Graham County, 108 Pac. 252 (13 Ariz. 167), reads as follows:
“Where the Legislature re-enacts a statute after uniform construction by the officers required to act under it, the presumption is that the Legislature knew of such construction, and adopted it in re-enacting the statute.”
We are of the opinion that by reason of the interpretation of this law by the executive department and its implied adoption by' the Legislature, the provision of the statute that the word “city” may include incorporated towns, and it not appearing that such interpretation is inconsistent with the manifest intent of the Legislature or repugnant to the context of the statute, that this court ought not, under all the surrounding facts, adopt a construction contrary to that given the statute by the executive department. No, “very cogent and persuasive reasons for departing from” such construction have been suggested. These conclusions are supported by the opinion of this court in Mutart v. Pratt, 51 Utah 246, 170 Pac. 67.
Moreover, and aside from the rule of construction stated in our statute-, it is held by the great weight of authority that “cities include towns.” 11 C. J. 790. See, also, note “City as Including Towns and Villages,” Ann. Cas. 1914B, 215.
The alternative writ of mandate heretofore issued is vacated and a peremptory writ is ordered issued.
Concurrence Opinion
I concur in the opinion of Mr. Justice
I have read with interest the dissenting views of my Associate, Mr. Justice FRICK. The question is one upon which reasonable minds may differ. The fact that my Associate disagrees is a demonstration.
■ In the interpretation of statutes, unless technical terms are used, we should give to the words employed their plain ordinary meaning. We should not resort to technical rules of construction unless the meaning is obscure. My views upon questions of this kind are amplified in State v. Davis, 55 Utah 54, 184 Pac. 161, and need not be repeated here. There is no necessity for resorting to technical rules or judicial determinations. The statutes themselves furnish us an unfailing guide.
Comp. Laws Utah 1917, section 5848, in part reads:
“In the construction of the statutes, the following rules shall be observed, unless sueh construction would, be inconsistent with the manifest intent of the Legislature.”
Subdivision 21 of said section is as follows:
“The word ‘town’ may mean incorporated town and may include cities, and the word ‘city’ may mean incorporated toion." (Italics mine.)
It is insisted that this statute is not in pari materia with section 5607. Even if such contention be true, it nevertheless stands as an unimpeachable fact that the statute is a positive rule of construction enacted as such by the Legislature, and must be given full force and effect. 36 Cyc. 1105, and cases cited. No statute or series of statutes in pari materia could by any possibility be more potent in determining the meaning of. a word or words used in a statute than is an act of the Legislature itself enacted for that especial purpose.
The statute says the word “city,” when used in the statutes of the state, may mean incorporated town, and, unless such construction in the particular case would be contrary
Whether or not construing the word “city” in the present case to also mean incorporated “town” is inconsistent with the manifest intent of the Legislature is the only question that remains to be considered. As to that question the statute itself imposes the burden upon those who take the negative view.
I have carefully read and considered the able briefs of defendant’s counsel, and the masterly presentation by my Associate, Mr. Justice FRICK, in which every possible argument that can be made has been advanced in favor of the negative, and still I am unconvinced. Without intending to arrogate to myself the functions of either a critic or a censor, I am strongly impressed with the view that the elaborate discussion indulged in, in the briefs and opinion referred to, tends to confuse rather than to enlighten. There is no necessity of going outside of the statute itself. The question is, is the construction contended for by plaintiff inconsistent with the manifest intention of the Legislature ? It is not contended that the town of Orem is without power to contract a bonded indebtedness. It is not shown that the security is hazardous, doubtful, or precarious. With all that has been said it is not made to appear that a loan to an incorporated town to the extent of its ability to pay is not as safe an investment as would be a loan under similar circumstances to an incorporated city. Much has been said as to the vast powers of an incorporated city as compared with the limited
Examining the case from every possible angle, I am unable to perceive any reason why it should be presumed that the construction contended for by plaintiff is inconsistent with the manifest intent of the Legislature. I see no reason, viewing the ease from the standpoint of legislative intent, why the Legislature should have intended to exclude incorporated towns, from the operation of section 5607. The fact that incorporated towns are not expressly mentioned in section 5607 is the main pillar of strength of those who. are opposed to the views herein expressed. Such contention would have been conclusive prior to the legislative session of 1907, for previous to that time the word “city” did not, in any case, mean incorporated town. As the law stood prior to 1907, the statute read: “The word ‘town’ may mean incorporated town and may include cities.” Revised Statutes 1898, section 2498, subd. 21. Under that statute the word “town” might mean a city, but the word “city” might not mean an incorporated town. In 1907 the Legislature, evidently noting
I have endeavored conscientiously to find some logical reason why the statutory rule of construction as regards the word “city” should not be applied in the case at bar. The sole purpose, apparently, the Legislature had in view in 1907, in the amendment referred to, was to make the word “city” mean incorporated town whenever such construction would not be inconsistent with the legislative intent. The amendment had the effect of curing a condition for which no logical reason could be given as cities and towns are known and understood among the people of the state. The Legislature in enacting section 5607, in relation to the loaning of money, evidently had a twofold purpose in view: (1) The stability of the security upon which the money was loaned; (2) to accommodate our municipalities, and thereby assist in building up the commonwealth. The money thus loaned would be like “bread east upon the water to be gathered after many days,” whether the money was loaned to a county, city, school, or incorporated town. In view of all these considerations, what grounds are there for the assumption that the loan of money, arising from the sale or rental of state lands, to incorporated towns is inconsistent with the manifest intent of the Legislature? I think there are none. I do not care to discuss the question of practical construction. If the Land Board has adopted the practice of lending money to incorporated towns since the amendment of 1907, then there-is some logical connection between the custom adopted and the law itself. In any event, I rest my opinion upon the meaning and intent of the statutes referred to as applied to this particular case.
Dissenting Opinion
(dissenting). I concur in the conclusion of Mr. Justice GIDEON that the defendant, as the Auditor of this state, may and ought to refuse to draw his warrant for any purpose for which no legal appropriation has been made, or for any purpose which is not authorized by law. I also concur in the conclusion that if an appropriation has been made for the purpose for which a warrant is demanded, or if the expenditure is authorized by law, then he may not legally refuse to issue his warrant for the reason that in his judgment the expenditure or investment, as the ease may be, is unwise, unsafe, or otherwise. I am unable to concur in the conclusion however, that the investment sought to be made in this case, and for which plaintiffs ask this court for a writ of mandate to coerce the defendant to issue a warrant, is “authorized by law.” In my judgment it is not authorized by law, and hence it is not only the privilege but it is the duty, of the defendant, as Auditor of this state, to refuse to issue his warrant against the school land fund.
I regret that my convictions compel me to take this position, and that hence I cannot concur with my Associates. I fully appreciate that dissenting opinions are not only stillborn, but, in most instances, useless; and that they detract from the weight of the decisions. Further, that it is the duty of every member of this court, where such a course is possible, to reconcile his views with those of his associates and. submit to their judgment. I am, however, not able to do so in this case. In my judgment the prevailing opinion disregards the rules of construction, which, if heeded; would necessarily lead to an opposite conclusion. That fact standing alone, however, would not be sufficient in this case-to induce me to separately state my views in a dissenting opinion. Laying aside all other considerations, and considering this ease alone, it is not of much consequence whether the decision is one way or the other. The decision, however, is much more than of ordinary importance, since it may affect
There never was a time in. the history of jurisprudence when it was more important than at the present time that the courts adhere religiously to the well-recognized and well-established rules of interpretation and construction, and thus declare the law as it is written by the lawmaking power. There never was a time in the history of the world when as many statutes were enacted as at the present time, nor upon a greater variety of subjects. These statutes, in very numerous instances, are so written as to require careful consideration and construction, not only for the purpose of determining the intention and meaning of the lawmakers, but for the purpose of harmonizing the various conflicting enactments which relate to the same or cognate subjects. Moreover, it is a well-known fact that those very numerous statutes are constantly submitted to the opinions of lawyers by their clients for the purpose of having the meaning and effect thereof determined as guides for their conduct in the most important as well as the most varied affairs of life. These lawyers are familiar with the rules of interpretation and construction which have been evolved by the experience and wisdom of thousands of judges sitting as courts during a period covering centuries for the purpose of ascertaining the actual intention and meaning of the lawmakers, and to the end that that intention may be declared and enforced. The lawyers, therefore, ascertain the moaning and intention of the lawmakers by the aid afforded by those rules, and advise their clients accordingly. It is safe to assert that at least ninety per cent, of the legal business transacted in law offices does not reach the courts, and that these lawyers implicitly rely upon the decisions of the courts in determining and applying the law in accordance with the rules of construction. It is of the highest importance, therefore, that the courts strictly adhere to those rules in rendering their decisions. To depart from them is to destroy both the stability and the certainty of the law, and might not infrequently leave both the lawyer and the client stranded upon a desert, in a state
Before preeeeding to a statement of the rules of construction that are applicable here, it becomes necessary to refer to the statute in question, which is found in Comp- Laws Utah- 1917, section 5607, as amended by Laws Utah 1919, page 308, chapter 109. So far as material here, that section provides:
“The board shall make the necessary orders for the investment or disposal of the funds derived from the sale of public lands of this state, in the state treasury. Such funds shall he invested for and on account of the specific purposes for ivhich the lands were granted, in government, state, county, city, or school district bonds, or in scrip or warrants issued against the funds to be raised by special or local taxes or assessment under the provisions of the laws of the State of Utah, or notes of the state made under the provisions of sections 3806-3807, or in warrants on the reservoir land grant fund issued under the provisions of section 5664; or in mortgages on improved farm lands -within the state, or otherwise as provided by law. * * * ”
The italicized words are the only ones that are of compelling force here.
The act in which section 5607, supra, was included was first adopted in the year 1896. Laws Utah 1896, page 238, chapter 80. As first written the section, in addition to the italicized words, after the words “school district bonds” contained the folloAving words, “or in first mortgages on im proved farms within the state.” The act was in some particulars amended and re-enacted in the year 1897. Laws Utah 1897, page 61, chapter 37. The italicized words remained precisely as they were in the act as originally passed in 1896. In 1899 (Laws Utah 1899, page 85, chapter 64) the act was again amended and re-enacted. The italicized words were left the same, but, after stating that the funds could be invested in first mortgages, the following words were added “or otherwise as provided by'law.” In 1903 (Laws Utah 1903, page 54, chapter 62) the particular section limiting the kinds of securities in which the funds could be invested was again amended by adding the words “or notes of the state made under the provisions of chapter 8 of the Laws of Utah, 1899.” The italicized words were, however, re-enacted
I have been thus specific and careful in noting the nature of the foregoing amendments for the purpose of showing (1) that the language with respect,to the investment of the school land funds as originally enacted was never changed in so far as the investment should be made “in government, state, county, city, or school district bonds,” which are the italicized words before referred to; and (2) that whenever the right of the Land Board to invest the funds was enlarged the kinds of security in which the funds should be invested were specifically designated.
Let me pause here for a moment to determine the nature of the language which is in question here. It will be observed that the language is mandatory in letter, in spirit, and in its purport. The language is to the effect that the Land Board shall invest the funds in the designated securities. It must also be kept in mind that whenever the Legislature deemed it proper to enlarge upon the kinds of securities in which investments should be made it distinctly specified what these securities should be, precisely as was done when the act was first adopted. I make this statement as conclusive proof that no discretion whatever was ever vested in the Land Board respecting the kinds of securities in which the funds should be invested. Again, the language shows two limitations: (a) That the funds shall be invested “on account of the specific purposes for which the lands were granted”; and (b) that they shall be invested in the kinds of securities designated in the act. The language with respect to these matters is simple, clear, plain, and free from all ambiguity, and hence free from -uncertainty. Moreover, no difficulty whatever arises in ascertaining the meaning of the language by reason that there is some other statute which must be considered as in pari materia with the one under consideration. The statute with respect to the rules of construction to which I shall hereinafter.refer is not in pari materia, and hence cannot be considered upon that phase of the case. 2 Lewis, Suth. Stat. Const. (2d Ed.) sections 443, 444. The language being free from all ambiguity and uncertainty with respect to the kinds of securities in which the funds shall be invested, there is no room for construction; and the court is powerless, therefore, to expand or to restrict the ordinary and usual meaning of the language used, or to add to or to take away anything therefrom.
In this connection it must be borne in mind that the cities and towns of this state are by law segregated into distinct
Let me refer briefly to a few of the cardinal canons and rules of construction. In 2 Lewis’ Suth. Stat. Const, section 366, the primary or .first rule is stated to be that the meaning and intention of the lawmaker must be determined from “the words and language employed; and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation.” Again, it is said in section 367: “There is no safer or better settled canon of interpretation than that when language is clear and unambiguous it must be held to mean what it plainly expresses.” What, then, is the meaning of the language used in the act of 1896, and continued in force from that day to this so far as that language is now material ? It is that the funds derived from the school land fund shall be invested “in government, state, county, city, and school district bonds.” The primary indeed the foundation of all rules of construction that are employed to determine the meaning of language is that unless the words are used in a technical sense they must be given their usual and ordinary meaning and effect. There is not one word in the list to which I have referred that is not used in its ordinary sense and purport. The only word, however, that is here in question is the word “city.” Even if the cities and towns of this state were not segregated into distinct classes, there still could be no doubt respecting the meaning of the word “city” as used in the section. Its usual and ordinary meaning, indeed its only meaning, is that “city,” as used in the section, was intended to include a city of the first, second,
Referring again to 2 Lewis, Stat. Const. section 366, it is there said:
*234 “The statute itself furnishes the best means of its own exposition; and if the sense in which the words were intended to he used can be clearly ascertained from its parts and provisions, the intention thus indicated will prevail without resorting to other means of aiding in the construction.”
The rule is so well and so clearly stated by Mr. Justice BREWER, in his inimitable style, in United States v. Goldenberg, 168 U. S. at page 102, 18 Sup. Ct. at page 4, 42 L. Ed. 394, that I take the liberty of quoting what is there said. The Justice said:
“The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of the words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true there are cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional, and only arise when there are cogent reasons for believing that the letter does not fully and accurately disclose the intent. No mere omission, no mere failure to provide for contingencies which it may seem wise 'to have specifically provided for, justify any judicial addition to the language of the statute.”
In this case, therefore, if the court confines itself to the language of the statute, as it is required to do, there is absolutely nothing to justify a holding that the Legislature intended to include any class of securities other than those that are expressly mentioned in the statute. It is only when recourse is had to another statute, which has absolutely no connection with the one in question, and which was intended to and can apply only in cases where uncertainty and doubt arise from the language used in the statute, that any doubt is created as to the meaning of the word "city” in the statute now under consideration. That other statute cannot be used to create a doubt. It can only be applied where the meaning is not clear and manifest. The statute relied on provides: "The word ‘town’ may mean incorporated town, and may include cities; and the word ‘city’ may mean an incorporated town.” That statute merely states a rule of construction which has been in force for at least several centuries in England, and has been incorporated into the
It goes without saying that it often occurs that a town is intended to be included in the word “city,” and vice versa. When that is the case, however, there is always something in the context which indicates the sense in which the word “city” or “town,” as the case may be, was used. The concrete cases clearly illustrate the doctrine just stated. Such is the case in Burke v. Monroe, 77 Ill. 610, Trueman v. Village of St. Maries, 21 Idaho, 632, 123 Pac. 508, and State v. Harbor Line Com’rs, 4 Wash. 6, 29 Pac. 938. Upon the other hand, in those eases where there was nothing to indicate that the word “city” or the word “town” was not used in its ordinary sense, the courts have held that the word “city” does not include a town. In "Welch v. Post, 99 Ill. 471, the statute referred to “villages, cities, counties and townships,” and it was held that incorporated towns were excluded. The court, in passing on the meaning of the words used, said: “What seems to have been deliberately omitted * * * cannot be supplied by judicial construction.” To the same effect is Day v. Morristown, 62 N. J. Law, 571, 41 Atl. 964, Wight v. Wolff, 112 Ga. 169, 37 S. E. 395, and Anderson v. Blakesly, 155 Iowa, 430, 136 N. W. 210. The case last cited affords a striking illustration of the mischief that might result from a careless or loose substitution of the word “town” for the word “city,”
I know of no instance, have heard of none, and have found none in the books where the Legislature so persistently and consistently manifested its intention to exclude the securities of towns from the kinds of securities in which the school land funds should be invested as in this case. Here the Legislature amended the act, in which it created and empowered the Land Board to invest the school funds, and in which it designated the kinds of securities in which such funds should be invested, nine times, and in each change persisted in using the precise words, so far as cities were concerned, as were
It is, however, insisted that the contention of the Land Board should prevail upon the theory of what is termed “contemporaneous construction.” In this case it would mean that the Land Board must succeed because it had construed the statute to mean that where the word “city” is used by the legislators it includes a town. In other words, that when the Legislature designated that the funds should be invested in city securities it likewise meant town securities. A number of cases and other authorities are cited and quoted from which, it-is urged, support this contention. I have no quarrel with the doctrine announced in those cases and authorities. Indeed, the doctrine is wholesome and sound when applied to proper cases. But it has no application here. First, then, what is meant by “contemporaneous construction”? And under what circumstances may it be invoked? In 2 Lewis’ Suth. Stat. Const. (2d Ed.) section 472, the rule is stated thus:
“Tlie aid of contemporaneous construction is invoked wliere the language of a statute is of doubtful import and cannot be made plain by the help of any other part of the same statute, nor by the assistance of any act in pari materia which may be read with it, nor of the course of the common law up to the time of its enactment. * * * A contemporaneous construction is that which it receives soon after its enactment.”
In the succeeding section it is said:
“Long usage is of no avail against a plain statute; it can be binding only as the interpreter of a doubtful law, and as affording a contemporary exposition.”
In Black, Interp. Laws (2d Ed.) pages 40, 41, the author, in discussing the question of when and under what circumstances contemporaneous construction may be invoked, says:
“It is properly resorted to to illustrate and confirm the text, to*237 explain a doubtful pbrase, or to expound an obscure clause. And the credit to which it is entitled is in proportion to the uniformity and universality of that construction, and the known ability and talents of those by whom it was given. But it is to be resorted to with much qualification and reserve. ‘It can never abrogate the text; it can never fritter away its obvious meaning; it can never narrow down its true limitations; it can never enlarge its natural boundaries.’ ”
Now, what are the facts here? The Land Board, for onr information, has furnished us with a list of investments that have been made in town securities. That list is conclusive proof that the construction that the board relies on, to say the least, is not a contemporaneous construction. It is the very reverse of that. The law, as I have pointed out, in so far as investments in city securities are concerned, .was first passed in 1896. From the record of the Land Board as first presented the' first investment that was made in town bonds was in 1909. From a letter later written by the clerk of the Land Board it now seems that the first investment was in 1906. To my mind it is neither very clear nor very material which is the correct date. In either ease no investments in town securities were made until either ten or thirteen years, as the case may be, after the law was passed, and not until the law had been amended or changed either five or six times. Up to that time the investments were limited to the kinds of securities specified in the law itself. If, therefore, there was any contemporaneous construction at all, it was in favor of the law as written and not as now construed. But I most respectfully submit that there is no merit in the claim of contemporaneous construction, because the law as written was plain, simple, and free from ambiguity, and hence no construction was permissible.
It is contended that the author in Black, Inter. Laws (2d Ed.) section 94, supports the contention, and he is quoted from at some length. If all that Mr. Black says upon the subject in section 94 is considered, then there is absolutely no conflict in his statements. In referring to contemporaneous, or what he in that section calls “practical construction, ’ ’ he says:
*238 “The courts cannot be controlled by them, for the reason that the courts alone are invested with the power and charged with the duty of putting a final and authoritative interpretation upon the laws. And if the statute to be construed is a recent one — so that official action cannot be seriously deranged, nor private rights be very much affected, by a change in its interpretation — the mere fact that subordinate officers have already begun to read it in a certain way and to regulate their actions accordingly will have no weight or influence with the courts in their search for the true meaning of the law.”
✓ Tbe foregoing statement applies to this case in every par-ticnlar except that the law was not of recent enactment. That fact, however, as I have pointed out, militates against the claim of contemporaneous construction rather than supports it, for the reason that for at least ten and perhaps thirteen years after the law was passed, and during which time it was changed and amended five or six times, all investments under it were limited to the kinds of securities specified in the act. No rights whatever, either public or private, have grown up under it, and the only result that can possibly follow the application of the law as written is to prevent the Land Board from further transgressing its plain provisions. That, in the very nature of things, can, however, only be wholesome, and, in the end, beneficial in many ways, since it will be notice to all officials to remain, so far as possible, within the letter of the law.
Nor can the other cases quoted from by Mr. Justice GIDEON in his opinion have any controlling influence here. The case of Bloxham v. Consumers’ L. & S. R. Co., 36 Fla. 519, 18 South. 444, 29 L. R. A. 507-509, 51 Am. St. Rep. 44, was in one aspect only a proper one for the application of the doctrine of contemporaneous construction. The statute upon its face was doubtful in that the question was whether the word “railroad” applied to street railroads or was limited to steam railroads. The executive officers had construed the statute so as to apply it to street railroads as well as to steam railroads, and the court, independently of such a construction, held that street railroads were included within the term “railroads.” The court, however, referred
Neither can I yield assent to the proposition that either this court or the Legislature was required to take notice of
“To require courts to notice not only tlie regulations of prominent executive officers, state or national, but also wbat they do in discharge of their legal powers, would impose a burden of multi*241 tudinous details, often of slight importance, and more familiar to litigants than to the court. Dispatch of business is usually served by requiring such facts to be proved.”
Then follows an enumeration of the character of executive acts of which the courts are required to take judicial notice. In my judgment, the foregoing is a plain and sound exposition of the law. Any other course must inevitably lead to interminable turmoil. In view of the foregoing, and in view of the fact that the Legislature from first to last, in express terms, specified the several kinds of securities in which'the funds should be invested, there is no basis for the contention that the Legislature adopted the construction that was placed upon the statute after 1906 or 1909 by including town securities.
I have thus shown that the. Legislature for twenty-three years persistently and consistently used the same language in designating the kinds of securities in which the school funds should be invested, and that whenever it deemed it necessary to change the kinds of securities in which the funds might be invested it in express terms designated the kinds of securities in which the funds should be invested. What better method could the Legislature have adopted in emphasizing its intention respecting the kinds of securities in which investments should be made 1 It had from the very inception of the law specifically mentioned and enumerated the several kinds of securities in which the funds should be invested. By pursuing this method all securities not mentioned were necessarily excluded from the list specified. According to the arguments now advanced, however, it seems that the Legislature, in addition to particularly specifying the various kinds of securities, should also in express terms have excluded all others. That is the effect of the holding, and in View of that, the decision is not only contrary to all rules and canons of construction, but may prove exceedingly harmful in the future. Suppose this court for a period of twenty-three years had constantly applied the same language in determining a particular question, what possible effect would be given to the argument that because some of
The alternative writ should therefore be quashed, and a peremptory writ denied.