Hanly v. Sims

Jordan, J.

Appellant commenced this suit in the lower court as a taxpayer to enjoin the attestation, delivery and acceptance of certain bonds of the State known as the *347 “Vincennes University Bonds,” authorized by an act of the legislature, passed over the Governor’s veto on March 9, 1907 (Acts 1907 p. 497), entitled “An act entitled an act providing for the issuing of bonds and coupons of the State of Indiana for the liquidation and payment of the claim of ‘The Board of Trustees of the Vincennes University’ against the State, in full and final settlement of said claim and of all other demands.” Judgment below was rendered upon a demurrer, on the ground of insufficient facts, to each of the two paragraphs of complaint. The sustaining of the demurrer as to each paragraph is assigned as error.

The first paragraph of the complaint sought an injunction against the formal attestation, delivery to and acceptance by the board of trustees of the Vincennes University of bonds of the State payable to bearer in the aggregate amount of $120,548, which bonds were to be issued under and by virtue of the aforesaid act. The contention of appellant is that said act is unconstitutional and void for the following reasons: J{ 1) It is in violation of article 10, §5, of the Constitution of the State of Indiana, which provides that “no law shall authorize any debt to be contracted on behalf of the State, except in the following cases: To meet casual deficits in the revenue; to pay the interest on the state debt; to repel invasion, suppress insurrection, or, if hostilities be threatened, provide for the public defense.” (2) It is in violation of article 4, §24, of the Constitution of the State of Indiana, which provides that “no special act * * * making compensation to any person claiming damages against the State, shall ever be passed.” (3) It is in violation of section twenty-one of our Bill of Rights, which provides that “no man’s property shall be taken by law without just compensation.” (4) It requires that the public funds be used for private purposes, and makes a gift of the public funds for private uses.

The second paragraph of complaint sets forth the same general facts as the first, and avers that at the time of the *348 passage of said act the State was not indebted to the board of trustees of the Vincennes University in any sum on account of the matters embraced in the act and its preamble. Certain historical data, giving rise to this controversy and in support of the denial of liability, are set out in detail, the substance of which is as follows: That in 1804 the Congress of the United States granted to the Territory of Indiana, for the use of a seminary of learning, a township of land to be located in the Vincennes land district, and to contain 23,040 acres; that on October 10, 1806, the Secretary of the Treasury located and set apart, as constituting said grant, township two south, range 11 west, in the Territory of Indiana; that by an act of the territorial legislature approved November 29, 1806 (Acts 1806 p. 6), and supplemented by an act approved September 17, 1807 (Acts 1807 p. 436), the board of trustees of the Vincennes University was duly incorporated, and under authority given in its charter sold 4,000 acres of said land prior to January 22, 1820; that on January 22, 1822, 19,040 acres of said grant remained, which the State, through its General Assembly, erroneously assumed to own, and directed that it be sold and the proceeds paid into the state treasury; that the State did sell to numerous persons, prior to May 4, 1846, 16,840 acres of said real estate; that in 1844 the board of trustees of said university commenced suits in ejectment against various purchasers, who on that account memorialized the General Assembly of 1846, and an act was thereupon passed, and approved January 17, 1846 (Local Laws 1846 p. 233), entitled “an act to authorize the trustees of the Vincennes University to bring suit against the State of Indiana and for other purposes.” That in pursuance of this act on May 4, 1846, suit was commenced in the Marion Circuit Court by said board of trustees against the State, in which a final judgment was rendered on May 21, 1849, in favor of the complainants for $48,778.02, of which $13,249.19 was paid by turning over to the board unpaid obligations for purchase money then in the hands of the *349 State, and the remaining $35,528.83, with interest, was paid by the issuance of bonds, which had been fully redeemed and paid prior to March 9, 1907; that between May 4, 1846, and March 11, 1895, the State sold and conveyed, at given dates, 2,141.75 acres of said lands for a total consideration of $1,547.30; that in the general appropriation bill of March 11, 1895, the General Assembly made an appropriation in favor of the board of trustees of said university in full settlement of all claims against the State in the sum of $15,000, which amount was subsequently paid and accepted pursuant to said act. It is finally averred that at the passage of the act of 1907, supra, the State was not indebted to the board of trustees of the Vincennes University in any amount, and the issuance of “said bonds as in said act directed will be a gift and gratuity to said trustees, which the General Assembly has no authority to grant or bestow, and said act is therefore void and of no effect.”

The preamble to the act in controversy, after reciting certain historical matters and the fact that a commission consisting of the Secretary, Auditor and Treasurer of State was created in 1903 to investigate and report as to the merits of said claim, and the finding of this commission concludes as follows: “Whereas, the State of Indiana has not rendered to said board of trustees adequate compensation for said lands and the losses thereby sustained, and there is equitably and justly due to said board of trustees by reason thereof said sum so found due by said state officers, amounting to $120,548, which sum, in bonds of the State, with interest coupons, said board of trustees will accept in full settlement and payment of said claim and all demands against the State; therefore, be it enacted,” etc.

1. *350 2. *349 Appellant first insists that the statute before us is invalid, because it purports to authorize a debt to be contracted on behalf of the State for an unauthorized purpose. Prior to 1851 the State had engaged in financing the construction of canals, railroads and other internal *350 improvements, which eventually resulted in much extravagance and many vexatious contentions. The section of the present Constitution, restricting the contracting of debts on behalf of the State, and others of like nature, were designed to prevent the State from incurring debts on such account to be paid in the future, and to withdraw and withhold the State’s credit from the promotion and construction of public works remotely related to the primary functions of government. The manifest purpose of the General Assembly, in enacting the statute assailed by appellant, was not to contract a debt, but to pay and discharge a preexistent, outstanding obligation. The consideration for the act and contemplated payment was not to be received in the present or in the future, but had been received long before, even prior to the adoption of the constitutional provision upon which appellant relies. This clause of the Constitution does not purport to forbid the payment of an existing debt out of the current revenues. City of Aurora v. West (1857), 9 Ind. 74, 77. If the General Assembly had elected so to do, it might have paid the acknowledged liability to the university, and thereby caused a casual deficit in the revenues, and then would have authority under this provision of the Constitution to go into the money market and contract a debt, by borrowing money to replenish the treasury. If such a thing might be legally accomplished by indirection, it certainly may be done directly. The bonds authorized by the statute in question were designed merely to transform the State’s existing liability or indebtedness from an unliquidated claim into a definite amount payable at a particular time. The essence of the debt or liability, and hence the debt itself, was long before existent, and the statute in controversy merely authorized the execution of such evidences of the indebtedness as in the absence of money would be acceptable as payment. This court, in construing article 13 of the state Constitution, which prohibits municipal corporations from creating a debt *351 in excess of two per cent of their taxable property, said: “The issuing of new bonds to provide, at their par value, for the payment of an old debt, or the substitution of new evidences of a preexisting debt, is not, in any legal or proper sense, the creation of a new indebtedness.” Powell v. City of Madison (1886), 107 Ind. 106, 114. See, also, City of Logansport v. Dykeman (1888), 116 Ind. 15, 21; Aetna Life Ins. Co. v. Lyon County (1890), 34 Fed. 329; Aetna Life Ins. Co. v. Lyon County (1897), 82 Fed. 929. It is certainly clear that the issuance of bonds in settlement and payment of an obligation acknowledged to be justly owing for past considerations was not the contracting of a debt within the meaning of that term as employed in the Constitution.

3. Appellant denies that the claim- of the university was such a “debt” as might be recognized, and would limit the application of the principle just stated to the satisfaction of a debt or obligation which is contractual, legal and enforceable. This interpretation of the term “ debt ” is too narrow, and is untenable. The Constitution of the United States authorizes congress to lay and collect taxes to pay the “debts” of the United States. In the case of the United States v. Realty Co. (1896), 163 U. S. 427, 440, 16 Sup. Ct. 1120, 41 L. Ed. 215, in construing this provision the court said: “It cannot be questioned that the debts are not limited to those which are evidenced by some written obligation or to those which are otherwise of a strictly legal character. The term ‘debts’ includes those debts or claims which rest upon á merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. The Nation, speaking broadly, owes a * debt ’ to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral- or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law. The power *352 of Congress extends at least as far as the recognition and payment of claims against the government which are thus founded. To no other branch of the government than congress could any application be successfully made on the part of the owners of such claims or debts for the payment thereof. Their recognition depends solely upon Congress, and whether it will recognize claims thus founded must be left to the discretion of that body.” See, also, Mount v. State, ex rel. (1883), 80 Ind. 29, 30, 46 Am. Rep. 192; Julian v. State (1890), 122 Ind. 68, 77; Guthrie Nat. Bank v. Guthrie (1898), 173 U. S. 528, 19 Sup. Ct. 513, 43 L. Ed. 796.

4. We conclude, therefore, that the General Assembly in the exercise of its powers may transform a debt such as appears to have existed in favor of the Vincennes University into a liquidated or admitted form, evidenced by negotiable paper, without transgressing the constitutional inhibition against contracting debts in the name of the State.

5. The next constitutional provision invoked against the statute is article 4, §24, which reads as follows: “Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.”

This provision, if applicable in any sense, has reference only to liabilities originating after the adoption of the Constitution. The legislature of 1855, soon after the adoption of the Constitution, passed an act similar to that now before us, authorizing the issuance of bonds to pay the judgment, with interest and costs, rendered against the State, on May 21, 1849, on account of this controversy. The act of January 17, 1846, authorizing the State to be sued in that behalf, does not provide for the recovery of damages for the use of said lands, or for any interest accruing prior to the institu *353 tion of such suit, which was begun May 4, 1846. It is suggested that interest to the amount of $23,000 had accrued prior to that date. This sum compounded or at simple interest would approximate the sum admitted to be equitably due and owing in 1907. This court is not concerned with the accuracy of the amount, but judicially knows that the substantial basis, if not the entire amount, of the university’s claim antedates the present Constitution, and this clause of the Constitution cannot affect the validity of the act authorizing its payment.

6. It is alleged that the statute under consideration violates section twenty-one of the Bill of Rights contained in the state Constitution, which provides that “no man’s property shall be taken by law without just compensation.” It is not proposed to appropriate any specific part of appellant’s property, but only to subject it, in connection with other taxable property, to such burden of taxation as may be necessary to discharge the obligations of the State. This provision of the Constitution was not intended as a restriction upon the State’s taxing power, but relates only to the exercise of the power of eminent domain. This court at an early day made the distinction clear and unmistakable by the use of the following words: “Property may be taken, through the taxing power, for public use, without any other compensation than the common benefit which the appropriation and expenditure of the proceeds of the tax produce. It is only the taking of specific pieces of the property of an individual, by virtue of the right of eminent domain, that is prohibited by the Constitution, without special compensation.” City of Aurora v. West (1857), 9 Ind. 74, 83. See, also, People, ex rel., v. Mayor, etc. (1851), 4 N. Y. 419, 55 Am. Dec. 266; State v. Riehcreek (1906), 167 Ind. 217, 5 L. R. A. (N. S.) 874, 119 Am. St. 491; Stone v. Fritts (1907), 169 Ind. 361, 15 L. R. A. (N. S.) 1147.

*354 7. *353 It is finally argued that the issuance of the bonds described is a mere gift or gratuity, which the General Assembly is *354 not authorized to make. We are not called upon to determine under what circumstances the legislature may make charitable donations or voluntary gifts, since under the facts disclosed this contention is not entitled to serious consideration. In the case in hand, the General Assembly manifestly did not assume to make a gift, but upon prior investigation, and preceding the passage of the act now challenged, declared that “there is equitably and justly due” to the board of trustees of the Vincennes University, the sum of $120,548. It was within the province of the legislature to determine this question for itself, and when so determined, that conclusion is binding-on the other coordinate departments of the state government. In the case of Hovey v. Foster (1889), 118 Ind. 502, 508, this court, by Mitchell, J., said: “The power of obtaining information for the purpose of framing laws to meet existing or apprehended contingencies, is within the legitimate province of a legislative body, and to that end it may summon witnesses and hear testimony in proper cases. People, ex rel., v. Keeler [1885], 99 N. Y. 463, 2 N. E. 615, 52 Am. Rep. 49; Kilbourn v. Thompson [1880], 103 U. S. 168, 26 L. Ed. 377. Courts cannot make an issue of fact, or review the facts as such, upon which the legislature must be presumed to have passed, in order to determine the validity of an act of the legislature.”

In the case of Mount v. State, ex rel. (1883), 90 Ind. 29, 30, 46 Am. Rep. 192, this court said: “It would be a violation of the principles underlying our governmental structure for courts to sit in judgment on the action of the legislature allowing relief to individual claimants against the State or its funds, and review their decision solely upon the ground that there was no legal foundation for the claims. A conflict would result which would produce endless confusion and serious disaster.”

In the case of Julian v. State (1890), 122 Ind. 68, 77, the court pertinently said: “By the legislature’s passing an act *355 adjusting the claim it took the whole jurisdiction of the matter, and withdrew from the courts any jurisdiction to adjudicate upon the right to recover, or the amount to be recovered. The law authorizing the State to be sued only authorizes suits to be brought in cases where there is a liability on the part of the State to the claimant, which has not been adjusted by the legislature; but does not authorize suits where there only exists a moral obligation to pay, as may exist in case of the appellants. In such cases payment is discretionary with the legislature, and its action is final.” See, also, United States v. Price (1885), 116 U. S. 43, 6 Sup. Ct. 235, 29 L. Ed. 541.

The principle embodied in the quotations just given has long been settled on elemental reasons, and from it we have no inclination to depart. The Governor, in the rightful exercise of his authority, elected to withhold his approval from this act, and interposed a veto message embodying all the objections urged by appellant in this appeal. The General Assembly passed the act over the Governor’s veto, and thereupon its conclusions of fact became as binding upon the executive as upon the judicial department of government. We are in effect now asked to weigh the findings of fact made by the legislature against the opposing contentions of the disregarded veto message. This we decline to do, and cannot do with propriety or a decent regard for the rights of a coordinate branch of the state government. It is not becoming a sovereign state to weigh its obligations to an injured and helpless subject in an “apothecary’s scales.” While the State is not required to be generous, nevertheless, it at least ought to be just in its dealings, and it may well set an example of complete justice in making voluntary reparation, long deferred, in a matter involving its honor and fair dealing. No statute of limitations, or other barrier, should restrain the State from yielding a complete account of the bounty granted by the federal government in trust for a creature of its laws, for a noble work. The General *356 Assembly — virtually the State’s great directory — acting for it, has made such an accounting, and there is no longer any basis for the1 contention that the sum awarded is a mere gift or gratuity.

4. In conclusion, we may say that after a careful and full consideration of the questions presented by appellant, we are unable to perceive that the act in question violates any constitutional or fundamental law. As this court said in the case of State, ex rel., v. Menaugh (1898), 151 Ind. 260, 43 L. R. A. 408: “Under article 4, §1, of the state Constitution, all legislative authority is lodged in the General Assembly, and as regards this authority, that body is considered supreme and sovereign, subject to no restrictions except those which the state Constitution expressly or impliedly imposes, and the restraints of the federal Constitution and the laws and treaties passed and made pursuant thereto. Aside from these inhibitions or restrictions, the legislature may be said to be unfettered in the exercise of the power with which it has been invested.”

The demurrer to each paragraph of complaint was correctly sustained. Therefore, the judgment is affirmed.

Monks, J., dissents.