1 A.2d 825 | Vt. | 1938
This is a petition for a writ of mandamus to compel the petitionee, Benjamin Gates, as state auditor of accounts, to issue his warrant upon requisition of the petitioner for all expenditures made from the four hundred thousand dollars increase to the appropriation to the state highway department made by the emergency board under authority of section 2 of No.
1. "The purpose, intent and meaning of section 2 of No.
2. "Section 2 of No.
The provisions of the general appropriation act of 1937 here material are as follows:
*72"PART I."
"Section 1. Appropriations. The sums hereinafter named or so much thereof as may be necessary, are hereby appropriated for the purposes specified in the following sections of this act, and when no time is expressly named during which any of such appropriations are to continue, such appropriations are hereby declared to be single appropriations and only for the purpose indicated.
"Section 2. Limit. The limit of each appropriation actually to be expended shall be subject to the final approval of the governor to be determined by him as the work authorized may progress and shall in no case exceed the maximum sums herein appropriated unless herein otherwise expressly provided. In view of the present emergency, the emergency board is hereby authorized and empowered during the fiscal years ending June 30, 1938, and June 30, 1939, to appropriate moneys in addition to the sums herein provided, for any department or endeavor of the state as may appear to said board to be necessary for the welfare of the state, and may decrease any appropriation and may transfer appropriations from one department to another, and may pledge the credit of the state to pay the same; provided, however, the total additional appropriations shall not exceed five hundred thousand dollars for any fiscal year, in addition to the sums the said board is now authorized by law to appropriate. Said annual sum or so much thereof as may be necessary is hereby appropriated for the purposes stated."
There are certain long-established and well-recognized rules for our guidance in the construction of this statute, namely:
A construction that leads to absurd consequences must always be avoided if possible. Cady, Admr. v. Lang,
"A presumption obtains against a construction that would render a statute ineffective or inefficient, or which would cause grave public injury or even inconvenience." Cady, Admr. v. Lang, supra,
at page 293,
And again "every statute is understood to contain by implication, if it does not by its express terms, all such provisions as are necessary to effectuate its object and propose and to make effective the rights, powers, privileges, and jurisdiction *73
that it grants; and what is implied in a statute is as much a part of it as what is expressed." In re Frank Demarco,
"The intention of the legislature constitutes the law." Smith Son v. MacAulay,
The defendant contends that the words "in view of the present emergency" as used in section 2 of the statute above quoted circumscribe the authority conferred upon the emergency board to allocate additional funds to any "department or endeavor of the state" mentioned in said act. He insists that such additional funds can be allocated only after said emergency board has first determined that the causes or circumstances making such additional funds "necessary for the welfare of the state" are brought about by the emergency which the Legislature recognized as existing at the time this act was passed. Defendant claims, therefore, that this act furnishes no authority for the allocation of the four hundred thousand dollars to the highway board for the purpose of repairing highways damaged as a result of the flood of 1938.
It clearly appears that any additional funds allocated to any "department or endeavor of the state" by authority of this statute are to be added to the sum specifically provided by said act for such "department or endeavor of the state." The original amount appropriated for such department or endeavor is increased by such allotment and when this is done such fund, including said increase or addition, is available for all of the uses and purposes of such department as was the original appropriation before said addition. This is entirely inconsistent with the theory that funds allocated to any department or endeavor of the State by authority of this act can only be used for purposes in some way connected with the emergency which existed at the time of the passage of the act. *74
The phrase "in view of the present emergency" is nothing more than an expression in the nature of a preamble to what follows. As here used, it means nothing more than "because of the lesson taught by experience in the present emergency."
It follows that the Legislature intended that if during the period covered by the act the emergency board should find that it had become necessary for the welfare of the State that any department or endeavor of the State for which a specific appropriation was made in this act should have additional money, it should then become the duty of the emergency board to allot to such department or endeavor of the State additional funds. The total amount which can be allotted on the authority of this statute in a single fiscal year is limited to five hundred thousand dollars.
As to the expression in this statute that "the emergency board is hereby authorized and empowered * * * to appropriate moneys," etc., it is sufficient to note that one meaning of the word "appropriate" is "to assign to a special purpose, to set apart." Oxford Universal English Dictionary, also Webster's International Dictionary. It is in this sense that this word is here used. The necessary "act of appropriation" by the Legislature concerning the funds in question here is contained in the last lines of the statute above quoted.
Our attention is called to P.L. 566. Referring to the emergency board, this statute provides: "The board shall have authority to make any expenditures necessitated by unforeseen emergencies and may borrow on the credit of the state for same." By P.L. 570 the limit which said board may appropriate under P.L. 566 is limited to one hundred thousand dollars. Under P.L. 566 the emergency board has no authority to assign funds to some other state department to be used and expended by such department for its general purposes, because the statute provides that the board is to make the expenditures, and this has been construed to mean that the emergency board must retain the general oversight of moneys to be expended under this statute. Grout v. Gates,
Our attention is directed to sec. 39 of the act under consideration. Defendant suggests that if the Legislature intended sec. 2 to authorize the emergency board to make the allotment here in question, then the Legislature has created two subordinate bodies having the same function. Sec. 39 makes the fund therein appropriated available for the purposes therein mentioned and among these appears the purpose, "to provide for expenditures required by law for which no appropriation is herein provided," while sec. 2 authorizes an allotment of additional funds only to those "departments or endeavors of the state" for which a sum is provided in the act. While other differences in these two sections appear, this one alone is sufficient to account for the presence of these two sections in this act. We are not concerned with the question whether the purpose of the Legislature might have been accomplished in some other way. We are dealing with the construction and legality of section 2 of this act and this only to the extent of questions raised by the defendant.
The fact that sec. 13 of this act No. 37 appropriates a sum to the department of highways brings that department within the provisions of sec. 2 of this act.
Applying the foregoing rules to section 2 of No.
In considering the second question presented by the defendant there are other rules of statutory construction in addition to those hereinbefore mentioned which we must have in mind, namely:
"Every presumption is to be made in favor of the constitutionality of an act of the Legislature, and it will not be declared unconstitutional without clear and irrefragable evidence that it infringes the paramount law." Village ofWaterbury v. Melendy,
Our Constitution provides that the governmental powers of our State are divided among the three departments of government, the legislative, executive and judicial, and that each of these is separated from the others. However, this provision does not mean an absolute and entire separation of functions which would be impracticable, if not impossible. Village of Waterbury v.Melendy, supra; Sabre et al. v. Rutland R.R. Co. et al.,
Because of the similarity of the restrictions upon delegation of legislative authority implied in Article 1, section 1, and Article 1, section 8, of the federal Constitution, and those implied in the Vermont Constitution, the United States Supreme Court cases bearing upon this question are much in point.
In Panama Refining Co. v. Ryan,
In the case of Marshall Field Co. v. Clark,
That authority of law is indispensably necessary to an expenditure of state funds is without question. Section 27 of chapter 2 of our State Constitution provides that: "No money shall be drawn out of the treasury unless first appropriated by act of legislation." In this constitutional provision no particular requirements are specified. Its purpose is "to secure *78 regularity, punctuality and fidelity in the disbursement of public money." Story, Const., section 1342.
Speaking on this subject in the case of the City of Montpelier
v. Gates et al.,
In the case of City of Montpelier v. Gates et al., supra, this Court also stated: "It is not necessary that the money be in the treasury at the time the appropriation is made. People ex rel.McCauley v. Brooks, supra [
In Sabre et al. v. Rutland Railroad Company et al.,
Defendant contends that this act attempts to delegate to the emergency board the power to appropriate the funds necessary to make the act effective. In setting out those portions of the act which defendant claims are material he omits the following provisions contained in the last three lines of section 2, namely: "Said annual sum or so much thereof as may be necessary is hereby appropriated for the purposes stated." *79
Whatever might be the merits of defendant's argument addressed to this proposition, if the last above quoted provision were omitted, is not material here. This portion of the act is a full and complete answer to this contention of defendant. The Legislature has here appropriated all funds which it has authorized the emergency board to allocate to any department or endeavor of the State under the circumstances and for the purposes stated in the act.
True it is, as stated by this court in Village of Waterbury v.Melendy, supra, that "each case of questioned delegation of authority must, of course, depend upon the facts of that particular case."
Applying the rules and principles hereinbefore mentioned to the case before us, we must conclude that the allotment of additional funds to the highway department here in question is within the legislative intent as expressed in sections 1 and 2 of No.
All questions raised by defendant have been disposed of and none of his contentions are sustained. Therefore, we hold that:
1. The act of the emergency board in increasing the appropriation made by section 13 of No.
2. Section 2 of No.
Judgment that the prayer of the petition be granted withoutcosts, and that a mandate issue forthwith directing the auditorof accounts to issue his warrant upon requisition of the statehighway board for all expenditures made from the four hundredthousand dollars allocated to the highway department by theemergency board on October 6, 1938. *80