Stein v. Morrison , 9 Idaho 426 ( 1904 )

AILSHIE, J.

(After making the statement.) — It is insisted on the part of the plaintiff in this case that the legislature has violated the provisions of section 11, article 7 of the constitution in that they “have made appropriations for the years. 1903 and 1904 in excess of the tax levy which they provided for those years. Section 11, article 7 of the constitution is ás fol-. lows: “No appropriation shall he made, nor any expenditure authorized by the legislature, whereby the expenditure of the. state during any fiscal year shall exceed the total tax then provided for by law, and applicable to such appropriation or expenditure, unless the legislature making such appropriation, shall provide for levying a sufficient tax not exceeding the rates allowed in section nine (9) of this article, to pay such appropriation or expenditure within such fiscal year. This provision shall not apply to appropriations or expenditures to suppress insurrection, defend the state, or -assist in defending the United States in time of war.”

An examination of the appropriation acts shows that the total appropriation made by the seventh biennial legislative session was $674,375.56, and that the tax levy provided to cover the same period of time, namely, 1903 and 1904, is $550,000. The question arises: Is this appropriation contrary to the provisions of section 11 above quoted ? Article 7 was entitled by the framers of the constitution as follows, “Finance and Revenue,”- and section 2 thereof recognizes three distinct methods of raising tax, namely, a property tax, a license tax and a per capita tax, and hence it appears that the framers of the constitution contemplated other means of raising revenue than by the levy of a tax. It will also be seen from an examination of section 19, article 4 of the constitution that the framers of that instrument acknowledged a still further means of securing to the state treasury public funds. That section provides, among other things, that “No officer named in this section shall receive for the performance of any official duty any fee for his own use; but all fees fixed by law for the performance by either of them of any official duty shall be collected in advance, and deposited with the state treasurer quarterly to the credit of the state.” The constitution therefore recognizes three separate and distinct methods by which the state acquires revenue, other than by the levy of a property tax. It is not to be presumed that these funds are intended to be hoarded away in the state ■treasury but must have been intended to be used in defraying •the general expenses of the government.

It does not appear from the petition in this ease how much of such fund, if any, was in the state treasury nor how much will come into the state treasury during the two years for which the legislature has made its appropriation. It is fair to assume that in making their appropriations they estimated the amount of revenue the state would derive from all other sources than that of a tax levy, and that they made their tax levy sufficient to cover the difference. Until'the contrary is shown we must presume that the legislature kept within the constitutional limitation in this respect. The courts must take judicial knowledge of one provision of the constitution as well as another, and likewise of the statutes of the state, and by this •means knowing judicially that revenues come into the treasury from other sources than by a tax levy, we cannot say that the legislature have made appropriations in excess of the constitutional limitation.

. It is next urged that the appropriations made and the expenditures authorized by the seventh biennial legislative session added to the prior and then existing liabilities and debts of the state make a total exceeding one and one-half per centum of the total assessed valuation of the property in the state contrary to the provisions of section 1, article 8 of the constitution. That section provides as follows: “The legislature shall not in any manner create any debt or debts, liability or liabilities which shall singly or in the aggregate, exclusive of the debt of 'the territory at the date of its admission as a state, exceed the sum of one and one-half per centum upon the assessed value •of 'the taxable property of the state except in case of war, to •repel an invasion or suppress insurrection,” etc.

The principal question discussed on this point is as to whether or not the appropriations made for the two years succeeding the adjournment of the session became a debt within the meaning of section 1, article 8. It is urged by the plaintiff that these appropriations became debts or liabilities against the state, and must be added to the bonded and other indebtedness of the state in ascertaining whether or not the constitutional limitation has- been exceeded. Defendants take the position that under the general scheme of finance and revenue provided for in article 7, that the business of the state is placed upon a cash basis, and that the ordinary expense of maintaining and carrying on the state government is provided for from year to year as the expense is- incurred, and that in contemplation of the. constitution the money is in the treasury to meet the bills as soon as they are audited and allowed, and that the auditor’s warrant on the treasurer is simply the constitutional method of taking the money from the state treasury and applying it to the payment of such bill. Upon this point plaintiff relies on People v. Johnson, 6 Cal. 499, and Nougues v. Douglas, 7 Cal. 65. In these authorities it seems that the supreme court of California took the position that under the provisions of article 8 of the constitution of that state, which contains substantially the same provision as section 1 of our article 8, the appropriations for the current expense of the state government were a debt and should be computed in ascertaining whether the legislature had exceeded the constitutional limitation. An examination of the later authorities of that state shows, however, that the court soon departed from the rules announced in the two former decisions upon this particular point, and in State v. McCauley, 15 Cal. 430, Chief Justice Field said: “The eighth article was intended to prevent the state from running into debt, and keep her expenditures, except in certain eases, within her revenues. These revenues may be appropriated in anticipation of their receipt as effectually as when actually in the treasury. The appropriations of the moneys, when received, meet the services as they are rendered, thus discharging the liabilities as they may arise, or rather anticipating and preventing their existence. The appropriation accompanying the services operates in fact in the nature of a cash payment.” This last case was followed and approved by the same distinguished jurist in McCauley v. Brooks, 16 Cal. 24, and Koppikus v. State Capitol Commission, 16 Cal. 249. These authorities were in turn approved by Mr. Justice Sawyer in the able and well-considered case of People v. Pacheco, 27 Cal. 176. The same position was sustained and the latter authorities approved in McBean v. Fresno, 112 Cal. 167, 53 Am. St. Rep. 191, 44 Pac. 358, 31 L. R. A. 794. It is worthy of observation that nowhere is there to be found in the constitution of California, either as adopted in 1849 or as amended in 1862, any provision corresponding to our section 11, article 7. There was no provision in the California constitution requiring the business of the state to be conducted upon a cash basis or prohibiting the legislature from making any appropriation unless they first provided for the raising of sufficient revenue to meet the same. A careful examination of articles 7 and 8 of our constitution discloses two separate and distinct purposes had in view in the adoption of the two articles. Article 7 defines the fiscal year, provides methods for raising revenue, exempts certain classes of property from taxation, provides for uniformity of taxation, fixes a maximum rate of taxation upon real and personal property that shall never be exceeded, provides for appropriations for current expenses, for a board of equalization and for a system of county finances. The complete plan outlined in this article provides for the raising of revenue to meet the current expenditures. When legislative appropriations are made they are made for the future and to extend over a period of two years. During the time for which the expenditures are being made the revenue is being collected, and even though claims may be presented and allowed before sufficient revenue has been collected to meet the same, the complete scheme for the collection of taxes and revenue and the payment of the current expenses of the state looks to one general purpose of ending the two years for which appropriations are made with the expenses of maintaining the state government for that period paid. On the other hand, article 8 contemplates the contracting of indebtedness, the issuance of state bonds, prohibits the loaning of the state’s credit to individuals and corporations, etc. This article, differing from the other, was entitled by the framers of the constitution thus: “Public Indebtedness and Subsidies.” Between the two extremes — the one meeting the expenditure for maintenance of the state governrnent, and the other meeting the expenses in ease of war, to repel invasion or suppress insurrection — the constitution has anticipated a necessity which must arise of making public improvements, erecting public . buildings, educational, penal and re-, formatory institutions, and that for the construction of the same the state would necessarily be obliged to incur indebtedness. It authorizes the legislature to create debts not to exceed • one and one-half per centum upon the assessed valuation of the taxable property therein. In State v. Medbery, 7 Ohio St. 522, Mr. Justice Swan, in discussing provisions found in the constitution of Ohio to the same effect as those contained in our constitution, said: “The General Assembly usually, however, provide for the current expenses for a period not exceeding two years, out of the incoming revenues, by making appropriations of a sufficient amount of money to pay the expenses during that, period, and provide by law for the raising of revenue sufficient to meet the appropriations.

- “The discretion of each General Assembly for the period of two years in respect to the amount of expenditures, except in, some special cases relating to salaries, is without limit and without control; but each must provide revenue and set apart sufficient by a law operative within the same two years, to pay all expenses and claims.

“This is the general system provided by the constitution. (Art. -2, sec. 22; art. 12, see. 4.) Under it, all the claims which are authorized, or which can accrue within each of the two years and their pa3fment formed one governmental and financial transaction; so that, at the end of each of the two fiscal years, the expenditures authorized and liabilities incurred have been provided for by revenue, adjusted by the executive officers, and, out of the revenue previously set apart 'and appropriated, are paid. •

“So long as this financial system is carried out in accordance with-the requirements of the constitution, unless there is a failure ■ or deficit of revenue, or the- General Assembly have failed for some cause to provide revenue sufficient to meet.the, claims against the state, they'do not and cannot accumulate into, a debt. Under this system of prompt payment of expenses, and claims as they accrue, there is, undoubtedly, after the accruing of the claim, and before its actual presentation and payment, a period of time intervening, in which the claim exists unpaid;; but to hold that for this reason a debt is created, would be th& misapplication of the term ‘debt,’ and substituting for the fiscal period a point of time between the accruing of a claim and its-payment, for the purpose of finding a debt; but appropriations having been previously made and revenue provided for payment as prescribed by the constitution, such debts, if they may be so-called, are, in fact, in respect to the fiscal year, provided for, with a view to immediate adjustment and payment. Such financial transactions are not, therefore, to be deemed debts.”

The same conclusion is reached by the supreme court of Nevada in Ash v. Parkinson, 5 Nev. 15.

It seems to us that the provisions of articles 7 and 8 of the -constitution in this respect are clear and explicit. The appropriations for current expenses and the raising of revenue to meet* those appropriations have been treated by the people in framing and adopting the organic law as a cash transaction.

Based upon the plaintiff’s showing of the assessed valuation of the state it would authorize a state indebtedness exceeding $900,000 as permitted by article 8. Deducting the biennial appropriation provided by the legislature for the current expenses of the state from the total as set forth by the plaintiff in his petition and the balance falls short of the debt limit prescribed by the constitution. A large portion of the remaining indebtedness, however, is not an obligation against the state to be met by taxation or any other method of raising revenue, but is payable out of the interest from permanent funds derived from donations made by the general government upon our admission as a state.

For the foregoing reasons it will be seen that the petition herein does not state facts sufficient to entitle the plaintiff td the relief prayed-.for. -

In Re Francis, 7 Idaho, 98, 60 Pac. 561, this court said: “Upon application for a writ of prohibition, the petition must show .all facts necessary to entitle- a petitioner to a writ, and if it .does not, the writ will be denied.” ,

■ We cannot dispose of this case without a consideration of the' question of jurisdiction raised by the demurrer and argued at length in the briefs. This has been characterized as technical, and may therefore, upon that assumption, be said to belong to that large class of defenses so generally designated by defeated' litigants as technical, but it has been our uniform observation, however, that this oft-dubbed fragile hope and defenseless defense is seized alike by all with an astonishing facility when it becomes available to them in the course of litigation. It is not out of place here to observe that the courts cannot disregard the provisions of the constitution and statutes, matter not what the character of the defense may be.

It is urged that this court has no jurisdiction to issue the writ of prohibition prayed for in this case, and that the issuance of the same would be an invasion by judicial writ of another and independent branch of the state government, and an attempt to control executive and administrative power and authority. In the course of argument upon this position the attorney general contends that the writ of prohibition will not lie to the chief executive, for the reason that the judicial department cannot control, or assume to control, his acts, and that an attempt to do so would be futile for the reason that if the governor should refuse to obey the writ from the court, there would be no way to enforce a compliance therewith. He suggests that under the constitution the governor is commander in chief of the militia of the state, and that in case of a conflict between the authority vested in the judicial department, and that vested in the executive department the courts are left ■under the constitution without authority to enforce such writs, and that therefore it must be presumed that no such power and authority is vested in the judiciary. Hpon this particular question there seems to have been considerable said by the Courts and text-writers. In 16 Encyclopedia of Pleading and Practice, page 1168, the author says: “The three branches of government are independent and co-ordinate, and the courts have no authority to send the writ of prohibition to other branches than the judicial. It will therefore be refused where its object is to restrain the action of legislative bodies or executive officers.”

High, in his work on Extraordinary Legal Eemedies, second, edition, at section 783, says: “Prohibition will not lie against the governor of the state to restrain him from granting a commission to a- person claiming to be duly elected to a public office. The grounds on which the relief is refused in such a case are, that the judiciary have no power to invade the province of the executive, the three departments of government under our system being distinct and independent, and that prohibition is in no event the fit remedy to restrain the head of the executive department in the execution of his duties." To the same effect is Shortt on Extraordinary Eemedies, at page 491, where he says: “The proceedings to be prohibited must be of a judicial character. A prohibition would not be granted in respect of any proceeding belonging to the executive government of the country." To this general effect we find much authority. It seems to us that to keep within the spirit of our constitution (section 1, article 2) and form of government which recognizes the independence and specific character of the “three distinct departments" of government, that the judicial department could not attempt to prohibit either of the other departments from acting within the recognized scope of their respective branches of the government, but that on the other hand the legal effect of such action after it has been taken may be inquired into by the court.

In this connection the question has been directly and specifically raised as to whether or not under the constitution and laws of this state the writ of prohibition will issue to enjoin the commission of ministerial and administrative acts. In support of the position that the writ will issue in such ease, we are cited to Williams v. Lewis, 6 Idaho, 184, 54 Pac. 619, where this court said: “The writ of prohibition, under the statutes of Idaho, will lie to restrain the action of a ministerial officer when it appears that such action is illegal and beyond his jurisdiction." Counsel for defendant contend that this ease is contrary to the great weight of authority announced in nearly, every other state in the Union, and ask us to overrule it in so far as it announces the doctrine above quoted. After careful examination of that case and the pleadings which were before the court, it seems to us that the doctrine announced to the effect that the writ would lie to restrain the action of ministerial officers was unnecessary to a determination of the issues Involved and to that extent is dictum. The question there involved was the filing and certifying by the Secretary of State two separate tickets presented to him by two distinct political organizations, each representing itself to be the “People’s Party.” Under the law the secretary could not file and certify but one ticket in the name of'any one political party. He was therefore in that case called upon to exercise quasi judicial functions and determine which of the two tickets was the ticket nominated by the real, genuine, accepted “People’s Party.” "When we call to mind the distinguished and able judges who constituted the court when Williams v. Lewis was decided, we feel some reticence in a re-examination of the question there discussed, but the conclusion announced as to the office of the writ as contemplated under the constitution is in such apparent conflict with the great weight of authority that we have deemed ourselves justified in making an original investigation of that question. Section 9, article 5 of the constitution provides that: “The supreme court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition and habeas corpus.” This provision seems to have been taken literally from section 4 of article 6 of the constitution of California. The same provision was contained in the constitution of California as adopted in 1849 and again as adopted in 1862, and was finally readopted in the constitution of 1879. The legislature of California in defining the writ of prohibition, at section 1102, Code of Civil Procedure, used the identical language .■which was copied by our legislature and adopted as section '4994 of our Kevised Statutes. The supreme court of California, in considering the extent and scope of the writ as used 'in the constitution and statutes of that state, held uniformly that the common-law writ was meant.

In Maurer v. Mitchell, 53 Cal. 289, the court considered the statutory definition of the writ and the language used in that connection, and construed it in such a clear and convincing way, that we quote at length from that opinion. It says:

“Giving the words of the last clause of the section their natural construction in view of the law when the section was adopted, there would be no difficulty in holding that the ‘corporation, board or person’ mentioned was a corporation, board,- or person clothed with limited judicial powers which had been exceeded. The word ‘jurisdiction,’ when used in connection with ‘prohibition,’ would be at once understood as being employed in the sense of the legal power or authority ‘to hear and determine causes.’ It is said, however, that the first clause of the section can only be given effect by extending prohibition so as to arrest every unauthorized act of an officer or person clothed with authority, as mandamus may be employed to compel the performance of any act enjoined by law, with the condition in each ease that the party has no other plain, speedy and adequate remedy. But that prohibition as a remedy is not in every respect the exact converse of mandamus is made apparent by the words of the second clause of the same section, which declare that prohibition arrests proceedings which are without or in excess of the jurisdiction. In prohibition it must be shown to the court that the inferior court or person has exceeded the powers conferred by law, and the court intervenes to prevent further proceedings without or in excess of such power. Mandamus may be resorted to whenever an officer or person refuses to perform a duty enjoined by law, although the act may have been an isolated one, disconnected with any proceedings leading up to that which the recalcitrant official or individual refused to perform.

“In what sense, then, is the word ‘counterpart’ employed in the first clause of the section? As it cannot be given the meaning of the exact reverse or opposite without doing away with the limitation contained in the second clause, whereby prohibition is confined to the cases in which the court, corporation, officer, or person has already exceeded the powers conferred by law, it must have been used in the more general sense, that prohibition is the opposite, in that it arrests while mandamus commands action.

“The word ‘counterpart’ as employed in the statute is designed to illustrate the operation of the writ of prohibition when issued in a proper case, but it is not intended to enlarge or add to the class of cases in which it may be resorted to.”

In defining the writ at section 4994, Revised Statutes, it is said that “it arrests the proceedings” when they are “without or in excess of the jurisdiction” of the tribunal, corporation, board or person about to exercise the jurisdiction. Jurisdiction, as used in the law, is the right to hear and determine a matter, and carries with it the idea of exercising judicial or quasi judicial functions. (See “Jurisdiction,” Black’s Law Dictionary; Bouvier’s Law Dictionary, and authorities there cited.). The word “proceedings” as here used cannot reasonably be said to apply or have reference to the doing of a purely ministerial act.

In 1881, and after the decisions reported in the 52<J and 53d Cal. had been announced the legislature of California amended section 1102 of their Code of Civil Procedure by adding thereto the words “Whether exercising functions judicial or ministerial.” In Camron v. Kenfield, 57 Cal. 550, the court held that the amendment was unconstitutional, for the reason that the word "prohibition” had been used in the constitution in the common-law sense of that term, and that it was beyond the power of the legislature to extend the scope of the writ by legislative definition. This last case seems to have become the settled doctrine in that state and has been repeatedly cited with approval, not only by the courts of that state, but by the highest courts of other states, and it is clear to us that the reasoning of the ease and the principle there announced was misapprehended and misapplied^ in Williams v. Lewis. In the Williams case the court seems to have taken the view that under sections 4994 and 4995, Revised Statutes, the territorial legisla- • ture had extended the scope and province of the writ, and in support of that position cites section 1866 of the Revised Statutes of the United States, which provided that the original and appellate jurisdiction of the territorial courts should be limited by law. When the act of Congress provided that the jurisdiction of the territorial courts should be limited by law, it was certainly not the intention to authorize the extension of .the use of the writ of prohibition within the territorial jurisdiction beyond in excess of the scope and power of the writ as uniformly recognized by the federal courts.

At common law the writ of prohibition was issued on the suggestion that the cause originally, or some collateral matter arising therein, did not belong to the inferior jurisdiction, but to the cognizance of some other court. “It was an original remedial writ provided as a remedy for encroachment of jurisdiction; its office was to restrain subordinate courts and inferior judicial tribunals from extending their jurisdiction.” (3 Shars. Blackst. Com. 112; Quimbo Appo v. People, 20 N. Y. 540; Thomas v. Mead, 36 Mo. 232; Spring Valley W. W. v. San Francisco, 52 Cal. 117; Maurer v. Mitchell, 53 Cal. 291.) Now, the question arises: With the federal courts using the writ in its common-law sense and the supreme court of California holding that the word “prohibition” as used in the constitution and statutes of California had been used in the common-law sense, in what sense shall we conclude that the framers of the Idaho constitution used the word "prohibition" when incorporating the same into the organic law of this state ? When a statutory or constitutional provision is adopted from another state, where the courts of that state have placed a construction upon the language of such statute or constitution, it is to be presumed that it was taken in view of such judicial interpretation and with the purpose of adopting the language as the same had been interpreted and construed by the courts of the state from which it was taken.

We therefore arrive at the contrary conclusion from that reached in Williams v. Lewis, and are of the opinion that the writ of prohibition as authorized by the constitution is the common-law writ, and that the same will not issue to restrain purely ministerial acts. The case of Williams v. Lewis is therefore expressly overruled in so far as it holds that the writ of prohibition will lie to restrain ministerial acts. No costs to be taxed in this case.

For the foregoing reasons the writ applied for will be denied and the petition dismissed.

Sullivan, C. J., and Stockslager, J., concur.