Graham v. Horton , 6 Kan. 343 ( 1870 )

The opinion of the court was delivered by

Kin&man, C. J.:

On the 20th of February, 1863, an act was passed “ to fund the territorial debt.” The debt was to be funded by issuing bonds therefor of a certain tenor. The eighth section of this act directs that the proper officers of the State shall causé to be levied and collected in each year thereafter, with the other State taxes, a tax sufficient to pay all interest on said bonds as it should fall due, and also a tax to create a sinking fund for the ultimate payment of the bonds. The ninth section pledges the faith of the State for the payment of these bonds and all interest thereon. The tenth section provides that the state treasurer shall annually invest the sinking fund in the bonds so issued, at their market value. In pursuance of this law, the bonds were issued, and one of them, of the denomination of $500, belongs to the defendant in error. In the years 1868 and 1869 a special tax of one-half mill upon the dollar was levied and collected in each year for the specific purpose of creating a sinking fund, for the redemption of the bonds of the State, which had, before that time, been issued by the authority of the State. The acts providing for this tax declare that this fund shall be applied exclusively for the objects therein designated.

On the 28th of February, 1870, the Legislature passed a joint resolution, (ch. 113, Laws 187.0, p. 233,) directing the State Treasurer to invest the said sinking fund ih the warrants of the State issued in pursuance of an act (ch. 1, Laws of 1870, p. 17,) “making appropriations for current legislative expenses, and for salaries of the supreme and district judges.” This joint resolution was passed over the objections of the governor.

The record fairly raises but two questions for examination and consideration in deciding the case: First, Is the joint resolution in conflict with the provisions of the constitution ? Second, Has the defendant-in error such an interest in the fund appropriated by the joint resolution, as authorizes the courts to grant him the relief sought in this case, even if the resolution itself is in conflict with the constitution ?

1. SlHIvXXQ Pcsd; Siíe"tag?Cunconstitutional. I. It is never a pleasant duty to examine questions involving the constitutionality of acts of the Legislature. The result of such investigations may be such ° ** as necessarily compels a court to declare the . n -,. . * n , - acts or a co-ordinate branca of the government of no effect, and thé reported cases show with what reluctance courts are compelled to conclusions involving such grave and delicate consequences; and it is only upon the clearest convictions that they are willing to do so. The present case is attended with the further embarrassment of passing upon questions involving, in the opinion of the legislature, the value of the compensation of its members and of the judges throughout the State. Nor was the action of the legislature taken through inadvertence or want of consideration, as is sometimes the case, for the resolution was passed over the veto of the governor, whose objections were urged in an elaborate and powerful message, on the return of the resolution without his approval; so, if we reach a conclusion adverse to the constitutionality of the resolution, wo must do so not only to the injury of the pecuniary interest of the members, but against the deliberate if not the unbiased judgment of the legislative branch of the government. Still, in a proper case, courts can no more avoid this than any other duty.

It is claimed that the resolution is in violation of sections three, four, and five, of article eleven, of the constitution ; that it violates section threé by borrowing money for the current expenses of the government, instead of raising revenue therefor, as that section requires; that it violates section four, in this, that it takes the money raised for one object and appropriates it to a different one; that it violates section five in at least three important particulars: 1: It creates a “public debt,” and this can be done by the legislature for two purposes only, and the object of the resolution is only to use the sinking fund to defray the current expenses of the State. 2: It seeks to seize and sequester a fund specifically raised and appropriated by law for the payment of the public debt, and apply it,to a different object. 3: Tbe resolution to a certain extent repeals sections eight and ten of tbe act of 1863 creating tbis bonded debt. These sections provide for a tax to create a sinking fund and prescribe tbe manner of its investment. Section five of article eleven of tbe constitution prohibits tbe repeal of such laws until tbe debt is extinguished.

It is not proposed to comment upon or decide these several propositions in detail, though it would perhaps require great ingenuity to show that each of them was not well founded; but tbe decision of tbe ease does not require us to go into an investigation so extensive. A few observations will indicate tbe grounds of our decision.

It is apparent from tbe resolution and the law to which it refers, that tbe object of tbe resolution is to use for a short time so much of tbe sinking fund as may be necessary to pay tbe members of tbe legislature and tbe judges of tbe State. Provision is made for tbe payment of interest, and tbe early return of tbe money to tbe sinking fund, so that no great injury could result to tbe fund from its use, as contemplated by tbe legislature, and no doubt tbis consideration bad great weight with tbe legislature. But in construing a constitution it would be dangerous to give much weight to such reasoning. Rules fundamental in their character, and intended to serve wise ends, are made chiefly to restrain those on whom they are imposed from looking to immediate benefits, regardless of far-reaching consequences. The sinking fund is solemnly set apart for a specific purpose. The wisdom of this provision is not questioned. It is only- asserted that no great mischief can flow from its temporary use, when such ample provision is made for its speedy replacement. But if, as a question of power, which alone we have to do with, one dollar of this fund can be used for the ordinary expenses of the State, then every cent of it may. If it can be thus used for one day, it may be for all time. If one legislature may thus use it, then may all, and the result might be that every obligation of the State would mature, without there being one dollar in the treasury to pay with. No man can read article eleven of our constitution and not know that such a result cannot be reached but in plain violation thereof. All finespun theories and ingenious reasoning are swept away, when we confront what may be the possible consequences of admitting the existence of the power of the legislature to use the fund for the ordinary purposes of the State, with these plain provisions of the constitution. If this resolution is constitutional, there is no use to which the sinking fund might be applied, that would not be so. We are therefore constrained to hold that the resolution is in conflict with the provisions of the constitution.

2. Injunction— io&wkey;'maíií" II. The other question in this case, is whether Horton, the defendant in error, sustains such a relation to the subject-matter of this action as will enable him to maintain this action and entitle him to the relief prayed for. It will be remembered that the case was tried on a demurrer to the petition, and of course all the necessary and proper averments of the petition are taken as true. It is alleged in the petition that the misappropriation of the fund will endanger,the payment of plaintiff’s bond at maturity, and the credit of the State in the judgment of capitalists, holders, and dealers in public securities, will be impaired, and therefore the present value of the bond be diminished. This being all taken as true, it is apparent that the defendant in error baa a direct pecuniary interest in the preservation and lawful administration of the sinking fund — an interest which he holds not merely as a citizeD, and in common with every other member of the community; he does not represent the whole public, who are alike aggrieved, but his own separate and personal interest, which is specially damaged by the proposed action of the treasurer; and in this respect the case differs from that of Craft v. The County Commissioners of Jackson county, decided at this term of the court, (5 Kas., 518.) lie does not sue the State. . He only asks that certain illegal and unauthorized acts of its agents, tending to the special injury of his individual property, shall be restrained. And this, we think, ho has a clear right to do. The judgment must, therefore, be affirmed.

All the Justices concurring.