41 Neb. 277 | Neb. | 1894
This is an original application for a writ of mandamus to require the respondent, as state treasurer, to register certain general fund warrants, and is submitted upon the following stipulation-:
“ It is hereby stipulated and agreed by and between the parties hereto, for the purpose of this case, and as the facts upon which the same is to be determined, that William Stull and Louis Stull are partners doing business under the firm name of Stull Bros., in the city of Lincoln, Nebraska; that the respondent is the duly elected, qualified, and acting treasurer of the state of Nebraska, and has been such ever since about the 14th day of January, 1893; that by the proper officers, and under 'the authority of-law, there was duly and regularly issued'the state warrants in the plaintiffs petition •set forth, payable out of the general fund óf the státe of Nebraska, delivered to the persons in whose favor they were •drawn, ás in said petition set' fórfh, ánd that said persons d uly indorsed tHeif names upón the back of'said ■‘waffánts .and sold'arid delivered them’to the said StufFBro's.' for the amouht of the face of'the warrants and a premium of diie jaer cent 6vér and ábóve their face’valué;‘that the said Stull Bros:, prior to the 14th day of May] l'894]:purchase<:l áll of the said warrants' in the-said petition set fortbfas hereinbefore stipulated, and the samé were made payable' tó the order of said'Stull Bros., by indorsement, and thereupon the’said Stull Bros., on the said 14th day'of Máy, became and were the legal holders and owners of the said ■warrants, and still hold and own the same; that-on-the Í4th day of May, aforesaid, the said'Stull Bros, duly presented the warrants, in their petition described, to the respondent Joseph S. Bartley at the state treasury in the city •of Lincoln; that at said time the said Stull Bros, inquired ■of the said Joseph S. Bartley if there was any money in the general fund upon which said warrants were drawn for
The resolution above referred to is in the following language : *
“Resolved, also, That the further sum of two hundred and fifty thousand dollars of the permanent school fund of the state, or as much thereof as may be necessary, be, and is hereby, set apart from which to pay current unregistered warrants already drawn, as well as those which may hereafter be drawn, against the general fund under appropriations made at the last legislature, it being determined by this board that such appropriations are secured by a levy of tax for their payment; and the state treasurer is hereby directed to pay such warrants as they may be presented at the state treasury, and stamp, sign, and hold the same as an investment of the permanent school fund, as provided by statute.
“ Resolved, further, That the state treasurer, a member of this board, be, and hereby is, empowered to act in its behalf in determining any questions as to the genuineness and ownership of any and all warrants presented under the foregoing two resolutions, and when in doubt he will
Two questions are presented by the facts stated, viz.: First — Does the foregoing resolution contemplate a transfer of a part of the permanent school fund to the general fund of the state within the prohibition of section 9, article 8, of the constitution? Second — Conceding the action of the state board to be in effect a, transfer pro tanto of the permanent school fund, and, therefore, violative óffthe constitution, will the relators be heard in this action to complain, inasmuch as the respondent offers to pay their warrants in full? The section of the .constitution above referred to reads as follows: “All funds belonging to the state for educational purposes, the interest and income whereof only are to be used,- shall be deemed trust funds held by the state; and the state shall supply all losses théreof that may in any mannér- accrue; Iso- that the ’same shall remain' forever inviolate<and undimihished ; and shall not be'invested or loaned’except on United States’'or state securities,'or registered county bonds of this''state; and siich fund's; with ■theinterést'and income thereof,-afe'hereby soTemnlypledged for the.purposes' for which- they are’granted’ and -set1 apart, and shall not be transferred "to-anyothef'fund for'óthér uses.” By - section 25, article 1, of chapter 80, Coin piled Statutes, as' amended hi -1-891; if is provided that'the boárd of educational lands and-funds shall, at‘their regular Sheetings, ¡make- the necessary orders for the investment off the principal of the-fund' derived from the school lands of the state dn United States or statfe securities and’registered •county bonds;5 ‘‘■•Provided, That’ when any state warrant issued in pursuance of an appropriation made by the legislature, and secured by the levy of a tax for-its payment, shall be presented to the state treasurer for • payment, and there shall not be money in the proper fund to pay said warrant, .the state treasurer shall pay-the amount due on said warrant from’any funds in’the’state treasury belonging
It is clear that by the foregoing resolution the state board intended to give effect to this statute. The real controversy therefore is with respect to the validity of the act of 1891, having for its object the investment of the permanent school fund. In State v. Bartley, 40 Neb., 298, that act was before us, where it was held that in so far as it was sought thereby to confer upon the treasurer alone authority to invest the permanent school fund, it is in conflict with the provisions of section 1, article 8, of the constitution. We are constrained to hold, after a careful consideration of the subject, that said act provides in substance for á transfer to the general fund of the permanent school fund of the- state, and is, therefore, in conflict also with the section of the constitution above set out; It is a- well settled ’¿hd salutary rule that' nothing but a clear and manifest violation of the ‘ constitution will justify the judicial 'annulment' of the'legislative will; It. is, howevef, ■quite as well "'established that 'courts' will Heft "hesitate to condemn-acts .when "found tó' bé in substantial coh‘flict with .the. fu'üdámehtár law of" the land. Ah'elementary rule of ¡¡construction is that ah act which(violated 'the true meaning 'and- intent • of the ■ eonstitutibn 5 is' 'So 'much within its prohibition aá if it were á violation Of ,-thé strict letter thereof;' ánd'ah act in' evasion of the constitution, as properly interpreted and understood, and frustrating its general,-express, or' plainly implied purpose1,1 is as clearly void as if in éxpress terms forbidden. (People v. Allen, 42 N. Y., 404; People v. Albertson, 55 N. Y., 50; Wenzler v. People, 58 N. Y., 516; District Court Case, 34 O. St., 440; People v. Parks, 58 Cal., 635.)
That no adequate provision is made for the profitable investment of oür 1 rapidly increasing permanent school fund is a fact greatly to be deplored; but the provision against the transfer of that fund is an express limitation
It remains to be determined whether these relators have any standing in court in view of the respondent’s offer to pay their warrants. We have seen that the money which it was proposed to use for that purpose is declared to be a trust fund and that such an application thereof is not only a breach of the trust imposed upon the state, but a palpable violation of the constitution. For such a misappropriation of that fund neither the act of the legislature nor the resolution would afford protection to the state board, the treasurer, or the relators. A more radical but .quite as fair a statement of the respondent’s position is that the state can discharge its obligations to creditors by requiring them to receive in payment money held by it as trustee and for which they could be called upon at any time to account, a proposition as unsound in law as it is in morals, and not deserving of further consideration in this connection. It is proper to observe, in conclusion, that relief on the.line of the act here considered cannot, in view of the restrictions upon the power of the legislature, be attained by statutory enactments, but must be sought through a change in the fundamental law of the state. The peremptory writ of mandamus is allowed as prayed.
Writ allowed.