11 Mont. 541 | Mont. | 1892
The affidavit of the applicant for this writ of mandate says that an act was passed March 7, 1891, by the legislative assembly of the State, which appropriated the sum of $44,648.19, out of all moneys in the treasury not otherwise appropriated, for the relief of persons named therein. That there was appropriated thereby for the Journal Publishing Company the sum of $7,909.93 for its claim for services. That the State auditor drew, March 28, 1891, the following warrant on the State treasurer, under said act: —
“State oe Montana.
“$7,909.93. Helena, Mont., Mch. 28, ’91.
“ State Warrant. The treasurer will pay to Journal Publishing Company, or order, seven thousand nine hundred and nine
“Presented for payment and registered-, 1891.
“-, State Treasurer.”
That this warrant was then delivered to the Journal Publishing Company, and by it presented to the said treasurer. That said warrant was then registered by the State treasurer, and not paid for want of funds. That there were, December 16, 1891, in the treasury of the State, funds sufficient to pay said warrant. That the affiant was then the owner and holder of said warrant; and that the said treasurer offered to pay the affiant the sum of $7,909.93, the principal sum in the warrant, and refused to pay any interest thereon. The prayer is for a writ of mandate commanding the said treasurer to pay the interest on said warrant from March 28, 1891, at the rate of six per cent per annum.
The answer of said treasurer, among other averments, says that there has not been at any time any moneys in the said treasury which have been set apart or appropriated to pay the interest on said warrant; that respondent “denies that the last legislature set apart or appropriated any sum or sums of money to pay the interest on the warrant owned by this relator, or any other person, or at all”; that respondent “further says that said claim so presented by this relator for interest has not been presented to the State board of examiners of said State for approval, and has not been audited by said board.” The applicant filed a motion to strike from the answer the last two paragraphs, which are quoted at length.
Disregarding some questions of practice which have been urged by counsel, we are called upon to consider and decide the leading and important inquiries: Is the relator entitled to recover interest upon his warrant without an express appropriation for this purpose by the legislative assembly? Should this claim for interest be submitted to the State board of examiners? It will be necessary and proper to review succinctly the legislation of the Territory of Montana upon this subject,
What was their action with reference to these matters? They ordained that “all laws enacted by the legislative as
The following sections, concerning the requirements of an appropriation for the payment of interest on the public debt, should be examined: “The general appropriation bills shall embrace nothing but appropriations for the ordinary expenses of the legislative, executive, and judicial departments of the State, interest on public debt. . •. . .” (Art. v. § 33.) “No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof, except interest on the public debt.” (Art. v. § 34.) We will consider in this connection other provisions: “All taxes levied for State purposes shall be paid into the State treasury, and no money shall be drawn from the treasury but in pursuance of specific appropriations made by law.” (Art. xii. § 10.) Many of the rules of construction are applicable to statutes and the Constitution. Mr. Endlich, in his work on the Interpretation of Statutes, says: “ One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication; or, in other words, beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart
The first legislative assembly, in the act supra, approved December 26,1864, provides “that the auditor of the Territory is hereby empowered to issue territorial warrants, drawn upon the treasury of the Territory, in favor of all persons to whom the legislative assembly of the Territory may direct.” (Stats. 1st Sess. p. 329, § 1.) This phraseology has been retained. (Comp. Stats, div. 5, § 1122.) The fourth legislative assembly re-enacted, December 7, 1867, by the authority of Congress, a law which had been approved December 15,1866, and annulled March 2, 1867, to wit? “The territorial auditor of this Territory is hereby forbidden to issue any warrant in favor of any person drawing upon the territorial treasury for any sum, unless he is authorized by law expressly, in which the name of the party shall be specified, the nature of the service performed, and the amount specified for the performance of such service.” (Stats, 3d Sess. p. 78; 14 U. S. Stats, p. 427; Stats. 4th Sess.
When these statutory provisions are compared, it will be seen that, although the language of the Constitution may be different, the effect was identical and the same end was accomplished. No warrant could be drawn upon the treasurer of the Territory which was not empowered by an act of the legislative assembly, and such is the declaration of the Constitution prescribing the necessity for an appropriation. The payment of interest upon the territorial warrants was regulated by the general law, and special statutes were not passed to give interest to any creditor. The interest upon the bonds of the Territory was controlled by the respective acts which authorized their creation, and no other legislation thereon was had. We recognize as the fundamental law the section, supra, which does not require an appropriation to enable the proper officer to pay the interest upon the public debt of the State.
In what manner has this fiscal department been affected by the transition from the territorial to the State system of government? Where is the clause in the Constitution which has ordained that any other mode shall be adopted with respect to the payment of interest on warrants in the transaction of similar business for the State? It is insisted, however, that the expression, “public debt,” was used in its limited sense, and comprehends solely one class of indebtedness — bonds. Upon the other hand, it is asserted that the words have a broad meaning, and include every species of liability. Partial definitions can be produced which support both sides of the contention. The term “public,” in the foregoing sections, designates the debt as that of the State of Montana.
This identical phrase, “public debt,” is employed in the fourteenth amendment to the Federal Constitution: “ The va
What, then, is the debt of the State? The framers of our Constitution performed their grave duties iu the light of this financial legislation of the Territory. They could clearly and definitely restrict the effect of the words “public debt” by the insertion of the term “ bonded,” or any other modifying clause. Was this language employed in its ordinary signification? Let us consult other paragraphs of the Constitution, and define accurately, if possible, the status of this debt. The constitutional convention agreed upon the phrase “public indebtedness” as the title to article xiii. The second section is as follows: “The legislative assembly shall not in any manner create any debt except by a law which shall be irrepealable until the indebtedness therein provided for shall have been fully paid or discharged. Such law shall specify the purpose to which the funds so raised shall be applied, and provide for the levy of a tax sufficient to pay the interest on and extinguish the principal of such debt, within the time limited by such law for the payment thereof; but no debt or liability shall be created which •shall, singly or in the aggregate, with any existing debt or lia
Similar constitutional provisions concerning the indebtedness-of counties have been exhaustively investigated, and it has been generally held that it was not limited to what existed in the shape of bonds. (People v. May, 9 Colo. 80, 404; Law v. People, 87 Ill. 385; Appeal of Erie, 91 Pa. St. 398.) In People v. May, 9 Colo. 95, the court, by Mr. Justice Elbert, said: “To say that the framers- of the Constitution saw no danger save in ‘bonded indebtedness’ is to credit them with a very limited statesmanship; and to say that they trusted to ‘wisdom and discretion’ as restraints is to impute to them a very sanguine statesmanship.....Nor are we to suppose that they dealt with the important question of public indebtedness other than in a practical manner; that they made an unsubstantial distinction, and limited the form and not the amount of indebtedness. The indebtedness was the essential thing. The mischief would be the same, and the burden the same, whether the debt was ‘ by loan ’ evidenced by bonds, or a. floating debt evidenced by warrants.”
Judge Brewer decided in Rollins v. Lake Co. 34 Fed. Rep. 845, that county warrants which had been issued in payment of the fees of witnesses, jurors, constables, and sheriffs, after the constitutional limit of its indebtedness had been reached, were not within the prohibition, and thereby overruled, in part, People v. May, supra. This judgment was reversed by the Supreme Court of the United States. (Lake Co. v. Rollins, 130 U. S. 662.) Mr. Justice Lamar, for the court, said: “Neither can we assent to the position of the court below that there is, as to this case, a difference between indebtedness incurred by contracts of the county and that form of debt denominated ‘compulsory obligations.’ The compulsion was imposed by the legislature of the State, even if it can be said correctly that the compulsion was to incur debt; and the legislature could no more impose it than the county could voluntarily assume it, as against the disability of a constitutional prohibition.”
The same doctrine is enforced regarding the' obligations of towns and cities. The court said in City of Council Bluffs v. Stewart, 51 Iowa, 389: “When a warrant is drawn upon the treasurer, if the money is in the hands of the treasurer to pay it, the reasonable expectation is that it will be presented and paid. By such act, no debt as contemplated in the Constitution is incurred. If, however, no funds are on hand to pay the warrant, a debt is incurred.” (See, also, Salem W. Co. v. Salem, 5 Or. 29.)
Blackstone says: “Whatever, therefore, the laws order any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge.” (3 Blackst. Com. p. 160.) This definition was followed in Gray v. Bennett, 3 Met. 526, by Mr.
In People v. Johnson, 6 Cal. 499, Chief Justice Murray said: “A debt or liability may be created in other ways than by the borrowing of money. It may be created by appropriation, where there is no money to meet it. It may be created by drawing on a fund, where there is no cash in the treasury or incoming revenue to satisfy such drafts.” ([Dunsmoor v. Furstenfeldt, 88 Cal. 522; 22 Am. St. Rep. 331.)
When our Constitution is considered as a whole, and the authorities are analyzed, the term “public debt” cannot be confined to what is evidenced by one form of indebtedness or liability, but embraces warrants as well as bonds. There is no language which indicates that the framers of this instrument had any other intention. Whenever there is a public debt, it is not necessary for the legislative assembly to make a specific appropriation to authorize the payment of any interest thereon. The law which creates the debt of the State by means of a loan must provide for the levy of a tax to pay the interest thereon. (Art. xiii. § 2.) This section is silent upon the subject of an appropriation by the legislative assembly for the payment of interest. When a public debt has been brought into being through an unpaid warrant, the statute, supra, fixes the rate of interest, and points out the steps which are required to secure it. The Constitution does not directly or indirectly modify the force of these laws.
The rule that repeals by implication are not favored is applicable when the repugnancy is alleged to exist between the provisions of a constitution and a statute. (Ohio v. Dudley, 1 Ohio St. 437.) We are compelled, by the rules of constitutional construction, to hold that this legislation of the Territory regulating the payment of warrants upon the treasury has not been interrupted by the formation of the State government. The interest which has been prescribed by law is an inseparable part of the liabilities or obligations which are evidenced by the warrant.
It is ordered that the motion to strike out the portions of the .answer referred to be sustained.
Motion sustained.