State v. Jones , 74 N.D. 465 ( 1946 )

I concur in the principles stated in the syllabus, and in affirmance of the order appealed from.

The only ultimate question presented for determination in this case is whether the Initiative Measure, enacted by the people at the election held on the 7th day of November, 1944, and now known as Chapter 339, of the Laws of North Dakota for 1944-1945, is violative of certain provisions of the State Constitution pointed out by the plaintiff. The pertinent provisions of the measure are set forth in the per curiam opinion. In general, I agree with what is said in that opinion, but deem it necessary to state certain additional facts and reasons which lead me to the conclusion that said Chapter 339 is not violative of the constitutional provisions pointed out by the plaintiff.

The plaintiff asserts that said Chapter 339, Laws of North Dakota for 1944-1945 contravenes §§ 25, 182 and 186 of the State Constitution. In plaintiff's complaint it is alleged that said Chapter 339 is unconstitutional for the following reasons: —

1. That the measure provides for the incurring of an indebtedness in excess of the debt limit prescribed by § 182 of the Constitution.

2. That the measure authorizes the incurring of an indebtedness to be evidenced by obligations other than bonds, and without the levy of an annual tax for payment of principal and interest, in violation of § 182 of the Constitution.

3. That the measure authorizes and attempts to provide for the expenditure of public funds without appropriation by the Legislature in violation of § 186 of the Constitution.

4. That the measure vests legislative power in executive officers in violation of § 25 of the Constitution.

In 1918 § 185 of the Constitution was amended so as to authorize the state to "engage in any industry, enterprise or business, not prohibited by Article 20 of the Constitution"; and in harmony with this, § 182 of the Constitution was amended, first in 1918 and again in 1924, so as to authorize the state to issue or guarantee the payment of bonds secured by first mortgages upon real estate or upon the real and personal property of state owned utilities, enterprises or industries. As so amended, and now in force, said § 182 fixes the limit of issue of bonds not so secured at two million dollars. Said section also provides: "No further indebtedness shall be incurred by the state unless evidenced by a bond issue which shall be authorized by law for certain purposes to be clearly defined. Every law authorizing a bond issue shall provide for levying an annual tax, or make other provision, sufficient to pay the interest semi-annually and the principal within thirty years from the date of the issue of such bonds. . . . No debt in excess of the limit named herein shall be incurred except for the purpose of repelling invasion, suppressing insurrection, defending the state in time of war or to provide for the public defense in case of threatened hostilities".

If the certificates authorized to be issued under the act in question here are subject to the provisions of § 182 of the Constitution, then it seems quite clear that the act is violative of § 182 of the Constitution. In my opinion, however, these certificates are not subject to, or controlled by, § 182 of the Constitution; but have been wholly withdrawn from the operation of that section by Article 56 of the Amendments to the Constitution. Article 56 was submitted pursuant to initiative petition, and was approved by the people at a statewide election on June 25, 1940.

Article 56 reads as follows: —

"Revenue from gasoline and other motor fuel excise and license taxation, motor vehicle registration and license taxes, after deduction of cost of administration and collection authorized by legislative appropriation only, and statutory refunds, shall be appropriated and used solely for construction, reconstruction, repair and maintenance of public highways, and the payment of obligations incurred in the construction, reconstruction, repair and maintenance of public highways."

Article 56 introduced a new constitutional fiscal policy. It provided that all revenue arising from certain taxes and fees be segregated from all other revenue of the state, and prohibited the expenditure of the revenue so segregated for any purposes except for those stated in the article. Was it intended that legislation providing for the incurring of obligations to be paid out of the funds so segregated should be subject to the limitations of § 182 of the constitution?

"The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied by it. The intent may be shown by implications as well as by express provisions." 16 CJS pp. 51-54. See also 1 Cooley, Const Lim 8th ed. p. 138.

"If the language used is clear and unambiguous its meaning and intent are to be ascertained from the instrument itself by construing the language as it is written." 16 CJS pp. 56, 57.

"`Construction,' as applied to a written constitution, is a broad term. Strictly, the term signifies determining the meaning and proper effect of language by a consideration of the subject matter and attendant circumstances in connection with the words employed. It does not stop with interpretation, but applies the language as interpreted to both the subject matter and the attendant circumstances." 16 CJS p. 48.

It has been said by high authority that "perhaps the safest rule of interpretation" is "to look to the nature and objects of the particular powers, duties, and rights, with all the light and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed." Prigg v. Pennsylvania, 16 Pet(US) 539, 10 L ed 1060.

If possible, a constitutional amendment "must be harmonized" with the previous provisions of the constitution. But obviously, the purpose of an amendment is to make some change in the constitution, and in case of conflict between the amendment and previous provisions, the amendment must prevail. 1 Cooley, Const Lim 8th ed p 129.

In construing an amendment to the constitution the court should keep in mind the constitution as it existed before the amendment was adopted, the evils, if any sought to be prevented or remedied by it, as well as the historical development of the amendment. 16 CJS pp. 68, 69.

The record of the proceedings of the Legislature and the laws enacted in this state bear ample evidence that since motor vehicles came into general use, public highways have been a subject of importance and concern in this state. In common with other states, North Dakota provided for the registration of motor vehicles and for motor vehicle fuel taxes.

The revenue derived from motor vehicle fuel taxes and motor vehicle registration fees were utilized largely in the construction and maintenance of public highways, and from time to time there were proposals by individuals and organizations that such revenue should be used solely for such purposes.

There were, also, proposals for the use of such revenue for other purposes, at least one of which was carried into effect by being enacted into law (Laws 1933, Ch. 160, § 11), which provided for a transfer of moneys from the Motor Vehicle Registration Fund to the North Dakota Real Estate Bond Payment Fund to be used for the payment of interest on North Dakota Real Estate Bonds then due or to become due during the years 1933, 1934 and 1935.

In 1934 Congress enacted what is known as the Hayden-Cartwright Act (48 Stat 993 c 586, 23 USCA § 55, 5 FCA title 23, § 55). Section 12 of that act provided:

"Since it is unfair and unjust to tax motor-vehicle transportation unless the proceeds of such taxation are applied to the construction, improvement, or maintenance of highways, after June 30, 1935, Federal aid for highway construction shall be extended only to those States that use at least the amounts now provided by law for such purposes in each State from State motor vehicle registration fees, licenses, gasoline taxes, and other special taxes on motor-vehicle owners and operators of all kinds for the construction, improvement, and maintenance of highways and administrative expenses in connection therewith, including the retirement of bonds for the payment of which such revenues have been pledged, and for no other purposes. . . ."

In 1937 the Legislature enacted Ch. 166, Laws 1937 which provided:

"The proceeds, after deduction of costs of administration and collection, from State motor vehicle registration fees, licenses, gasoline taxes, and other special taxes on motor vehicle owners and operators shall be applied to the construction, improvement, and maintenance of highways and administration expenses in connection therewith, including the retirement of bonds for the payment of which such revenues have been pledged, and for no other purposes."

Said Chapter 166 further provided for the repeal of all acts or part of acts in conflict therewith, and declared the act to be an emergency measure, in full force and effect after its passage and approval. In 1939 the Legislative Assembly amended and re-enacted said Chapter 166, Laws 1937. The only change made was to exclude from the operation of the statute drivers' license fees. The 1939 statute was also passed as an emergency measure. (Laws 1939, Ch. 169). In June, 1938 § 186 of the Constitution was amended pursuant to initiative petition. Article 53, Amendments to the North Dakota Constitution. Such amendment by its terms became effective July 1, 1939. The amendment, which is still in force as part of Section 186 of the Constitution, provides: "There is hereby appropriated . . . the funds allocated under the law to the state highway department and the various counties for the construction, reconstruction and maintenance of public roads."

At the time said Article 53 was submitted to and approved by the electors, the laws of North Dakota provided that moneys in the Motor Vehicle Registration Fund accruing from license fees or from other like sources in excess of the amount required to pay salaries and other necessary expenses shall be transferred quarterly and credited by the state treasurer as follows: 50% to the state highway department and 50% to the counties of the state. Laws 1935, Ch. 177. That the state treasurer shall credit to the state highway department promptly two-thirds of the motor vehicle license tax collected; and that "the money so credited is hereby appropriated to be used" by such highway department "for the construction, reconstruction, maintenance or repair of highways or roads" under the jurisdiction of the state highway department. Laws 1937, Ch. 168. These laws have remained without substantial change since their enactment. ND Rev Code 1943, 39-0467, 57-4112, 57-4113.

At the time Article 56 was initiated and submitted to and approved by the electors, and during the years immediately preceding, the construction and maintenance of public highways and the financing of such construction and maintenance were questions of great importance. In his message to the Legislative Assembly which convened in January, 1939, the then Governor Noses gave much attention to these questions. He said: —

"Up to this time, the Federal Government has made available large sums of money for construction purposes in North Dakota, without the need of matching funds by the state. Now, however, under the provisions of the Hayden-Cartwright Bill, the state must match Federal funds for new construction purposes, dollar for dollar. There is available for North Dakota in Federal funds for road construction purposes, the sum of $1,742,327 for 1939, and $1,939,847 for 1940, but before these funds can be used by the state, the state must either put up a like amount, or use 90% of its net receipts from gas tax and motor vehicle fees for highway maintenance and construction purposes; otherwise, the Federal funds set aside to North Dakota for 1939 will revert to the Secretary of Agriculture by the 30th of June 1939, and will be allocated to other states."

"The finances of the State Highway Department are not in good condition. I am reliably advised that the sum of $600,000.00 is owing to the Bank of North Dakota for loans made to the Highway Department for construction purposes. I am also advised that there are other outstanding obligations and indebtedness of the department, the amounts of which are not definitely ascertainable. . . . It is definite and certain that unless the state can match Federal funds, the approximately $4,000,000 now available from the United States Government will be definitely lost to North Dakota. It should be borne in mind that in addition to the three cent state gasoline tax, the people of North Dakota also pay a one cent Federal gasoline tax, levied for the purpose of raising funds for road construction purposes, and that it is thus a large share of our own money which we will be losing if we decide to abandon our road construction program."

In the same message, in discussing the general financial condition of the state, the Governor submitted a statement to the effect that there were outstanding (among other indebtedness), certificates of indebtedness of the state, with interest up to January 1, 1939, aggregating in amount $2,208,535.20, and that there was $194,247.08 in the certificate retirement fund, leaving a net liability of $2,012,788.12 on such outstanding certificates of indebtedness.

In his message to the Legislative Assembly in January, 1941 Governor Noses also dealt rather extendedly with highway problems. He stated:

"On January 1, 1939, the State Highway Department had on hand in cash $596.70 and was indebted in the total sum of $1,085,194.17. On January 1, 1941, the Highway Department had on hand $290,569.05, and no outstanding indebtedness except for current bills and a promissory note from a former administration to the Bank of North Dakota, in the sum of $600,000, with interest."

Immediately following this, the Governor said: —

"It is my belief that this loan should be repaid, although some doubt exists as to the legality of the original transaction, and some doubt exists as to the repayment of the loan in view of the nondiversion statute. If you find, however, that the loan can legally be repaid, then I recommend that you, by specific legislative enactment, provide for the repayment thereof, out of Highway Funds, in annual installments, at a nominal rate of interest, extending over a period of years, so as not to seriously impede and retard the program of resurfacing the primary road system of North Dakota."

In conformity with the Governor's recommendation, the Legislature enacted Chapter 48, Laws 1941, which provides: "There is hereby appropriated out of revenues available and to become available to the State Highway Department from gasoline and other motor vehicle fuel excise and license taxes and motor vehicle registration and license taxes and other special taxes on motor vehicles and on motor vehicle owners and operators, except drivers' license fees, after deduction of administrative and collection costs and statutory refunds, the sum of $600,000.00, together with interest on the sum of $200,000.00 at the rate of two per centum (2%) per annum from July 15, 1938, and interest on the sum of $250,000.00 at the rate of two per centum (2%) per annum from November 17, 1938, and interest on the sum of $150,000.00 at the rate of two per centum (2%) per annum from December 20, 1938, for the repayment to the Bank of North Dakota of the amount of three certain promissory notes, and interest thereon, from date thereof until fully paid at the rate of 2% per annum. . . That the sum of money appropriated hereby shall be paid out of funds accruing to the State Highway Department in annual installments of not less than Thirty-five Thousand ($35,000.00) Dollars and accrued interest at 2 per cent per annum thereof on January 1, 1942, and not less than Fifty Thousand ($50,000.00) Dollars and accrued interest at 2 per cent per annum on each January 1st thereafter until the full obligation is paid."

As the Governor's message shows, it was not an unusual, but rather a common, practice for the state highway department to borrow moneys from the Bank of North Dakota to carry on its work of construction and maintenance of public highways and thus to incur obligations, such as were refinanced by the Legislative Act of 1941. Upon the oral argument one of the attorneys for the defendants, who served the state first as Attorney General and later as Governor, referred at some length to such practice. There was no denial of the accuracy of the statements thus made. It was rather conceded that for a number of years it had been the practice of the state highway department to borrow from the Bank of North Dakota funds to carry on the highway construction program in anticipation of revenue from motor vehicle registration fees and motor vehicle fuel taxes which would later become available to the state highway department.

This, then, is the situation that existed when Article 56 was initiated, and when it was presented to the people for approval: — The laws of the state (Laws 1939, Ch. 169) provided: —

After deduction of the costs of administration, the proceeds from motor vehicle registration fees, licenses, gasoline taxes (except drivers' license fees), must be "applied only to the construction, improvement and maintenance of highways and administration expenses in connection therewith, including the retirement of bonds for the payment of which such revenues have been pledged, and for no other purposes." Laws 1939, Ch. 169.

The state treasurer was required to credit to the state highway department all moneys (allocated by law to the state), and received by him from such fees, licenses and taxes. (Laws 1935, Ch. 177; Laws 1937, Ch. 168.) There was outstanding certain indebtedness that had been incurred by the state highway department, including obligations to the Bank of North Dakota in the sum of at least $600,000.00, evidenced by promissory note. The state was in danger of losing the benefit of federal funds that had been allocated to it under the Federal Highway Act. The state had outstanding obligations, including certain state certificates of indebtedness, and on these certificates of indebtedness there was on January 1, 1939 a net liability of $2,012,788.12, after deducting the moneys on hand for the payment of such certificates. The law under which these certificates were issued provided: —

"The Certificates of Indebtedness issued under this act shall not be general obligations of the State of North Dakota except to the extent only that the State of North Dakota shall guarantee to pay any deficiency in principal and interest due and payable thereon which may exist at the maturity of such certificates or any renewal thereof in an aggregate amount of not to exceed Two Million Dollars." Laws 1937, Ch. 183, § 4.

The limit of the constitutional debt limit under Section 182 of the Constitution had been reached and there was no authority to incur any further indebtedness at all, even against the revenues arising from motor vehicle and other taxes and required by the law to be devoted to highway purposes. This was the situation in 1940, when the North Dakota County Commissioners Association held its annual meeting. The constitutional amendment known as Article 56 was initiated shortly thereafter. The president and secretary of the North Dakota County Commissioners Association were named as members of the "Petitioner's Committee" in the initiative petitions, and a statement inserted in the Publicity Pamphlet, over the signatures of the president and secretary stated that the measure was "sponsored by the North Dakota County Commissioners Association", and urged the electors to vote in favor of its adoption. See, McKenzie County v. Lamb, 70 N.D. 782, 787, 298 N.W. 241; N.D. Publicity Pamphlet of Statements of Measures, Primary Election, June 25, 1940, p. 7.

It must be assumed that those who prepared the measure and the people generally were aware of the existing situation, of the evil sought to be remedied, and the benefit sought to be obtained by the amendment. The amendment shows on its face that it was prepared with care. In a statement in the Publicity Pamphlet in support of the measure by the president and secretary of the North Dakota County Commissioners Association, attention is called to the fact that constitutional amendments of similar import had been adopted in seven other states. Certain it is that the amendment was intended to aid and facilitate the highway construction program, to preserve the revenues received from the taxes and licenses enumerated and to make it possible for the state to obtain the benefit of the federal grants in aid.

It will be noted that much of the language of Chapter 166, Laws 1937 and Chapter 169, Laws 1939 was borrowed from § 12 of the Hayden-Cartwright Act. And while there has been some re-arrangement of phrases, it is apparent that the drafters of Article 56 adopted much of the language of the preceding acts of the Legislature. There are, however, some significant changes. Thus, Chapter 166, Laws 1937 and Chapter 169, Laws 1939 adopted literally the clause in the Hayden-Cartwright Act to the effect that the proceeds of the taxes specified shall be applied to "the construction, improvement and maintenance of highways, and administration expenses in connection therewith, including the retirement of bonds for the payment of which such revenues have been pledged, and for no other purposes".

Article 56 of the Amendments makes no reference to the application of the revenue derived from the specified taxes for "the retirement of bonds for the payment of which such revenues have been pledged", but provides instead that the revenue derived from the specified taxes "shall be appropriated and used" for "the payment of obligations incurred in the construction, reconstruction, repair and maintenance of public highways". The Legislative Assembly which convened less than six months after Article 56 had been adopted, in accordance with the recommendations of the Governor, appropriated moneys from the revenue derived from the taxes specified in the article for the payment of obligations that had been incurred by the highway department for the construction of highways, — obligations in the form of promissory notes given to the Bank of North Dakota for moneys borrowed from the bank for the construction of public highways. Laws 1941, Ch. 48.

Article 56 does not purport to amend any previous provisions of the Constitution. It speaks on a new subject. It announces a new plan — a new fiscal policy. It does not deal with detail or enter into minute specifications, but it does announce a definite principle and prescribe a definite plan. It specifically provides that revenue from the taxes therein specified, "after deduction of cost of administration and collection authorized by legislative appropriation only, and statutory refunds, shall be appropriated and used solely for construction, reconstruction, repair and maintenance of public highways and the payment of obligations incurred in the construction, reconstruction, repair and maintenance of public highways."

"It `freezes' all the revenues derived from gasoline and other motor fuel excise and license taxation and from motor vehicle registration and license taxes for use for public highway purposes. But it does not `freeze' all pre-existing statutes relating to such taxes and tax revenues into permanence. It dedicates the revenues in question to public highway purposes without any designation as to the particular highways on which they shall be used. It leaves to the legislature the allocation of such revenues." McKenzie County v. Lamb, 70 N.D. 782, 786, 298 N.W. 241, 243.

It seems quite clear, however, that the constitutional amendment was intended to serve a larger purpose than to restrict the appropriation and use of the revenue from the taxes specified in the article to highway purposes. The appropriation and use of such revenues were already so restricted by legislative enactments and had been so restricted since 1937. But notwithstanding such restriction by the statutes, and the provision therein that the proceeds of such taxes might be applied for "the retirement of bonds for the payment of which such revenues have been pledged," the indebtedness which might have been incurred by bonds so issued was within the limitations of § 182 of the Constitution; and it was doubtless realized that the limit of the indebtedness authorized by § 182 of the Constitution had been reached. However, the highway department from time to time had incurred obligations in the form of promissory notes executed and delivered to the Bank of North Dakota to obtain funds to carry on the highway construction program.

In so far as Article 56 segregates the revenue arising from the taxes and fees specified therein and prohibits the appropriation and use of such revenue for purposes other than those therein specified, it is self-executing; but legislation is necessary to provide for administration and expenditure. McKenzie County v. Lamb (ND) supra.

Article 56 expressly authorizes the appropriation and use of moneys received from the taxes therein mentioned for the payment of obligations that have been incurred for the purposes stated. This of necessity implies authority to incur the obligations which the article says may be paid. While Article 56 "froze" all the revenues, derived "from gasoline and other motor fuel excise and license taxation, motor vehicle registration and license taxes," for public highway purposes, it did not "freeze," or purport to "freeze," the methods of administration, or tie the hands of the lawmakers by limitations upon, or directions as to, the measures the lawmakers might enact to accomplish the purposes to which the revenues were dedicated. The article imposes no restrictions upon the lawmaking power with respect to the expenditure of the funds or the right to incur obligations to be paid from such funds with the single exception of the purposes for which the money may be appropriated and used and for which the obligations must have been incurred in order to be payable from such funds. No limitations are placed upon the form, terms or amount of the obligations that may be incurred and paid. These matters are left for legislative determination; for where a statute or constitutional provision grants a specific power or imposes a definite duty, it also, in absence of a limitation, by implication confers authority to employ all the means that are usually employed and that are necessary to the exercise of the power conferred or to the performance of the duty imposed. State ex rel. Bauer v. Nestos, 48 N.D. 894, 187 N.W. 233, 619; 1 Cooley, Const. Lim. 8th ed, p 138.

Article 56 says that the revenue from the motor vehicle taxes and fees may "be appropriated and used . . . for . . . the payment of obligations incurred in the construction, reconstruction, repair and maintenance of public highways."

"In" is an elastic preposition and its meaning must be gathered from the context. Black's Law Dictionary, 3d ed. It may be used to express the relation to purpose or result, as well as relation to place, time and condition. The Century Dictionary and Cyclopedia. It may mean "for" or "to." Black's Law Dictionary, 3d ed. The Century Dictionary and Cyclopedia; Webster's New International Dictionary; Funk Wagnall's New Standard Dictionary; 42 CJS p 475; 36 CJS p 1133, note 62; Grainger Co. v. Johnson (CCA 6th) 286 F 833, 834, 33 ALR 315.

When Article 56 speaks of "obligations incurred in the construction, reconstruction, repair and maintenance of public highways," it obviously has reference to the purpose for which the obligations were incurred.

Article 56 was not intended to be an idle gesture. It sought to deal with a condition and not merely to announce a theory. According to its terms the revenue therein specified is definitely and unequivocally segregated from all other public revenues and dedicated solely to the construction, reconstruction, repair and maintenance of public highways, and the payment of obligations incurred for such purposes. It prohibits the appropriation and use of any of such revenue for general governmental purposes or for any purposes other than those stated.

It seems to me that the language of Article 56 evidences an intent that the validity of obligations incurred under that article shall be measured by the provisions of that article alone, and that there was no intention that § 182 and cognate sections of the Constitution should apply to such obligations. However, if there is any doubt as to the meaning of the language, all doubt is dispelled when the article is read in light of the history of the times, the history of the development of the article, and the conditions existing at the time it was initiated and adopted.

Appellant also contends that the law violates the provisions of § 186 of the Constitution in that it attempts to make an appropriation for the payment of the anticipation certificates and the interest thereon. This section, so far as material here, provides "All public moneys, from whatever source derived . . . shall be paid out and disbursed only pursuant to appropriation first made by the Legislature; provided, however, that there is hereby appropriated . . . the funds allocated under the law to the State Highway Department and the various counties for the construction, reconstruction and maintenance of public roads." This provision of the Constitution has been construed and applied by this court in several cases. Langer v. State, 69 N.D. 129, 284 NW 238; Department of State Highways v. Baker, 69 N.D. 702, 290 NW 257, 129 ALR 925; McKenzie County v. Lamb, 70 N.D. 782, 786, 298 NW 241, 243, supra; King v. Baker, 71 N.D. 125, 299 N.W. 247; Ford Motor Co. v. Baker, 71 N.D. 298, 300 N.W. 435.

In Langer v. State, supra, this court said: —

"The language used in § 186 of the Constitution, as amended, clearly manifests an intention to `appropriate the necessary funds' required for payment of duly approved claims of the character stated in the Amendment. . . . But, the appropriation is expressly limited to, and disbursement thereunder may be made only for, the purposes stated." 69 ND at p 161, 284 NW at p 255.

In King v. Baker, 71 N.D. 125, 299 N.W. 247, supra, this court had occasion to consider the effect of the appropriation provision of Section 186 of the Constitution as amended in relation to obligations incurred by the state highway department, and it was held that the appropriation made in said Section 186 was sufficient to provide, and did provide, for the payment of a judgment against the state and the state highway commissioner for damages that had resulted to a land owner by reason of the construction of a public highway over his property.

In Ford Motor Co. v. State, 71 N.D. 298, 300 N.W. 435, supra, this court, adhering to and applying the rule in King v. Baker, supra, held that the appropriation made in § 186 of the Constitution was sufficient to provide, and did provide, for the payment of a judgment against the state based upon a claim for a refund of taxes illegally assessed and collected.

Appellant concedes that under the rule announced in King v. Baker, supra, the appropriation provision of Section 186 of the Constitution "means that the funds `allocated' under the law to the State Highway Department are `appropriated' for the construction, reconstruction and maintenance of public roads." He contends, however, that the section does not appropriate funds for the payment of interest upon, and principal of, the "state highway revenue anticipation certificates" provided for in said Chapter 339; that hence, the appropriation made in Section 186 does not apply to such payments; and that under the provisions of said § 186 appropriation for the payment of principal and interest on such certificates may in no event be made by an initiative measure but can be made only by the Legislature.

The revenue which will be derived from the one cent per gallon tax provided in said Chapter 339, Laws 1944-1945 will obviously fall within the purview of Article 56 and, according to the provisions of that article, be available for appropriation and use for the payment of obligations that have been incurred for the purpose of construction, reconstruction, repair and maintenance of public highways. Obligations incurred for moneys hired and utilized to carry on such highway work are as much obligations incurred in the construction, reconstruction, repair and maintenance of the public highways as are obligations to persons who perform the work or who sell material used in the construction or maintenance. The appropriation provision in § 186 of the Constitution applies to all "funds allocated under the law to the State Highway Department and the various counties for the construction, reconstruction and maintenance of public roads." Department of State Highways v. Baker, 69 N.D. 702, 290 N.W. 257, 129 ALR 925, supra. It applies to all funds so allocated without regard to the time the statute providing the revenue or allocating the funds was enacted, and it applies to claims and obligations that arose before the appropriation provision of the section became effective (Ford Motor Co. v. State (ND) supra), as well as to claims and obligations that have arisen subsequent to the time such appropriation provision became effective. McKenzie County v. Lamb, 70 N.D. 782, 786, 298 N.W. 241, 243, supra.

Article 56 authorizes obligations to be incurred for the purposes therein stated and further authorizes payment of such obligations to be made out of the revenue to which the article relates. Questions relating to the issuance of such obligations, and the form and terms thereof, are matters for legislative determination. There is nothing in Article 56 to indicate that the legislative power with respect thereto must be exercised by the Legislature and may not be exercised by the people through the initiative. The issuance and sale of the certificates provided by Chapter 339 are merely steps to obtain the means with which to construct, reconstruct, repair and maintain public highways. Article 56 authorizes such obligations to be incurred and paid out of the revenue which will be segregated and set aside pursuant to its provisions; § 186 of the Constitution appropriates the moneys so set apart and paid into the fund created by Article 56; and said Chapter 339 provides for the incurring of certain obligations for the construction and reconstruction of public highways, and provides for the payment of such obligations out of the funds so allocated by Article 56 and appropriated for such purposes by § 186 of the Constitution.

The contention that said Chapter 339 delegates legislative power to executive officers is not well founded. The chapter declares the policy of the law and fixes the legal rules which are to control, and merely confers authority upon executive officers as to the execution of the law. This is not a delegation of legislative power violative of the Constitution, but the conferring of power to administer and execute a law. State ex rel. Kaufman v. Davis, 59 N.D. 191, 229 N.W. 105.

Chapter 339, Laws 1944-1945 is not violative of any of the constitutional provisions pointed out by the plaintiff. The trial court was correct in holding that the complaint does not state facts sufficient to constitute a cause of action.