State ex rel. Davis v. Banks

DUNN, J. This is an original application by the Governor, Attorney General and Commissioner of Public Works of the state, individually as taxpayers and in their several official capacities, for a writ of - mandate directed to the defendant, D. F. Banks, as State Treasurer, to compel him to employ a fiscal agent or broker to procure or assist in procuring a bidder for the Idaho state highway bonds, fourth issue, and to take such steps as may be necessary for the sale of said bonds. — 768 — The petition sets forth that pursuant to the provisions of chapter 193 of the laws of the state of Idaho for the year 1919, which directed the defendant as State Treasurer to issue and sell a series of state bonds of the par value of $2,000,000, to be known as Idaho state highway bonds, fourth issue, upon approval by the people at the next general election and pursuant to the constitution and laws of the state of Idaho, the question whether or not such bond issue should be authorized for the laying out, surveying and constructing of state highways was submitted to the electors of the state of Idaho on the second day of November, 1920, and that a majority of all the votes cast on said proposition at such election were in favor of the issuance of such bonds, and that the result of said election has' been determined and certified as required by law. That thereafter the said State Treasurer gave due notice of the intention of the state to sell said bonds and invited bids therefor to be submitted on or before the thirty-first day of January, 1921, and that five bids were received, the highest of which was $87,420 below the par value of said bonds; that by the provisions of said chapter it is required that said bonds shall be sold at not less than par and upon the best terms offered and at the lowest rate of interest named by any bidder, not exceeding the rate of five per cent per, annum; that all of said bids were rejected for the reason that they were below par of said bonds; that it Is now, and at all times since the said chapter 193 became effective has been, and will be for an indefinite period in the future, impossible to sell said bonds at par to bear said rate of interest without the employment of a fiscal agent as hereinafter set forth, by reason of the fact that the rate of interest of money on loans is now, and for some time past has' been, and for an indefinite time in the future will be in excess of five per cent per annum and the market for bonds of the character and of the interest rate provided in said chapter 193 below par. That by an act of the sixteenth session of the legislature of the state of Idaho, known as Senate Bill No. 319, 1921 — 769 — Sess. Laws, p. 112, approved March. 8, 1921, which said act became effective immediately upon its passage and approval, thp said State Treasurer was and is directed to employ a fiscal agent or broker to assist in procuring a bidder at not less than par and accrued interest for said bonds, for whose compensation and expenses the said treasurer is authorized and directed to expend the sum of not to exceed $97,500, for the entire bond issue, and proportionately for any part thereof, to be paid on payment for the bonds by the purchaser furnished, for which purposes the sum of $97,500 is appropriated by said act. That relators have demanded of said defendant that he proceed to employ such fiscal agent or broker and again call for bids for said bonds and proceed to sell and issue the same pursuant to the provisions of said chapter 193, but that said defendant has failed and refused to employ such broker or fiscal agent or to take any other steps or proceedings whatever for the sale or issuance of said bonds, and still continues to so fail and refuse, and alleges as his reason and ground therefor that the said bonds cannot be sold for par bearing interest at the rate of five per cent per annum without employment of a fiscal agent or broker as provided by the said act of the sixteenth session of the legislature, and that said act is invalid and unconstitutional. The petition further alleges the lack of funds in the hands of the state to proceed with the construction of the system of highways heretofore laid out and partially constructed, or to enable it to provide funds to carry on the large amount of work that is necessary to be done by it in co-operation with the federal government and with the several counties and highway districts of the state in order to obtain the financial assistance in the construction of the state highways that will be available if the said bonds can be sold and the money derived therefrom used in the construction of the highways throughout the state, and that without the funds to be derived from such sale much of the unfinished work done on this system of highways whose con — 770 — struction has been undertaken by the state of Idaho will be lost. The petition further alleges that in addition to the matters hereinbefore stated some question has been raised as to the validity of the said act known as Senate Bill No. 319, and that said bonds cannot be sold, or readily sold, or, if sold, cannot be sold at so high a price until after their validity and the validity of said Senate Bill No. 319 have been determined by judgment and decree of this court; and that the plaintiff and relators have no plain, speedy or adequate remedy in the ordinary course of law. The defendant filed a general demurrer to the petition. He also filed an answer in which he urges that said chapter 193 is unconstitutional and void, for the reason that “the purposes specified in said chapter 193 as the purpose of the issuance of said bonds and the creation of the indebtedness therein referred to are not distinctly specified in said chapter 193, in that neither the extent, mileage, location, general chafacter nor termini of the highways to be completed or constructed are set forth, nor do the same constitute some single object or work.” We will first dispose of the question raised by the answer as to the constitutionality of chapter 193. The constitutional provision referred to above, article 8, sec. 1, prohibits the creation of the indebtedness provided for in chapter 193, Session Laws 1919, “unless the same shall be authorized by law, for some single object or work, to be distinctly specified therein.” The word “object” is defined as “the end aimed at; the thing sought to be accomplished” (Paxton v. Baum, 59 Miss. 531, 536); “the aim or purpose” (State v. De Hart, 109 La. 570, 574, 33 So. 605); “the thing sought to be attained” (Scarborough v. Smith, 18 Kan. 399). These definitions given by the courts are in accord with the common understanding and use of the word “object.” The end sought to be accomplished by said chapter 193 was the creation of a fund to be used in connection with — 771 — the federal funds authorized by Congress in the construction of highways upon certain conditions to be complied with by the state, and also to be used in co-operation with the various counties and highway districts of the state in accordance with existing laws and, under certain contingencies, for the construction or completion of such state highways as should be deemed for the best interests of the state. This object or purpose is distinctly set out in said act as required by the constitution. We therefore hold that chapter 193, Session Laws 1919, is constitutional and became valid when it was adopted by a majority vote of the people of the state at the last election. In support of his demurrer the defendant contends that the act of the sixteenth session of the legislature in effect attempts to amend, after its approval by the people, said chapter 193, by indirectly authorizing an increase in the rate of interest to a rate exceeding five per cent per annum or by authorizing a sale of said bonds at less than par. Article 8, section 1 of the constitution of Idaho, so far as it is applicable to this ease, reads as follows: “The legislature shall not in any manner create any debt or debts, liability or liabilities, which shall singly or in the aggregate, .... exceed in the aggregate the sum of two million dollars, .... unless the same be authorized by law, for some single object or work to be distinctly specified therein, which law shall provide ways and means, exclusive of loans, for the payment of the interest on such debt or liability as it falls due, and also for the payment and discharge of the principal of such debt or liability within twenty years of the time of the contracting thereof, and shall be irrepealable until the principal and interest thereon shall be paid and .discharged. But no such law shall take effect until at a general election it shall have been submitted to the people, and shall have received a majority of all the rotes cast for or' against it at such election, and all moneys raised by the authority of such laws shall be applied only to specified objects therein stated or to the payment of the — 772 — debt thereby created, and such law shall be published in at least one newspaper in each county, or city and county, if one be published therein, throughout the state for three months next preceding the election at which it is submitted to the people,. The legislature may at any time after the approval of such law, by the people, if no debts shall have been contracted in pursuance thereof, repeal the same.” The constitutional limit of indebtedness having been reached, the state legislature enacted chapter 193, Session Laws 1919, which reads in part as follows: “Sec. 1. For the purpose of providing moneys to be used in paying for a portion of the cost of laying out, surveying and constructing a system of state highways in the state of Idaho a loan of $2,000,000 is hereby authorized to be negotiated upon the faith and credit of the state of Idaho. “Sec. 2. The State Treasurer is hereby authorized, empowered and directed to issue bonds of the state .... aggregating the amount of the loan authorized in section 1, which shall be known as Idaho state highway bonds, fourth issue.....Such bonds shall bear interest at a rate which shall not exceed the rate of five per centum per annum..... “Sec. 12. The State Treasurer shall give two weeks’ notice by publication in two newspapers of general circulation, one of which is published in the state of Idaho, of the intention of the state to sell the bonds authorized by the provisions of this act, and shall invite bids therefor. Said bonds must be sold at not less than the par value thereof, upon the best terms offered and at the lowest rate of interest named by any bidder. The state treasurer shall have the right to reject any and all of the bids offered and may readvértise for bids, as herein provided.” This proposition was submitted to the people at the election held in November, 1920, and was adopted. An effort was made to sell the bonds so authorized, but no bidder was found who was willing to take them at par. Thereupon — 773 — the sixteenth session of the state legislature enacted Senate Bill No. 319, Session Laws 1921, which reads in part as follows: “Section 1. The State Treasurer of the State of Idaho is hereby authorized, directed and empowered to employ for and in behalf of the State of Idaho, a fiscal agent or broker to procure or assist in procuring a bidder, at not less than par and accrued interest, for the Idaho State Highway Bonds, Fourth Issue, being the bonds referred to in Chapter 193 of the Laws of the State of Idaho for the year 1919, when the same are offered for sale, pursuant to the provisions of said Chapter 193. “Sec. 2. As payment and full compensation for such services and expenses of such broker or fiscal agent in connection therewith, the state treasurer of the State of Idaho is authorized and directed to expend such sum as he may determine to be necessary, but not to exceed the sum of $97,500 for the entire issue, and proportionately for any part thereof; but no compensation, expenses or other sum shall be paid to said broker or fiscal agent unless the bidder procured by him shall actually purchase the whole or a part of said bonds at a price of not less than par and accrued interest,- and then only coincident with delivery of said bonds to such purchaser and payment therefor by him. Payments made to said broker or fiscal agent shall be made on claims approved by the State Treasurer as head of the department or institution, as required by general law, and passed upon and approved by the state board of examiners.” Said act further provides that the State Treasurer is also authorized to pay, for expenses incurred by him in the issuance and sale of said bonds, as distinguished from any expenses incurred by or paid for said fiscal agent or broker, the sum of $500, or so much thereof as may be necessary. The sole question in this case is whether or not the legislature of this state has authority to make an appropriation such as is attempted in Senate Bill No. 319 in the sale of bonds after their issuance has been authorized by a vote — 774 — of the people, when the act of the legislature authorizing such a vote provides that the bonds shall be sold at not less than par and shall bear interest at not more than five per cent per annum. The contention of the defendant is that the payment of this sum to a fiscal agent or broker for assistance in selling said. bonds amounts upon the one hand to increasing the rate of interest, or upon the other to selling the said bonds below par. We are not inclined to agree with this view. To do so would be to hold in effect that it was the intention of the legislature in prescribing the maximum rate of interest to be paid and the minimum price at which the bonds should be sold that such bonds should be sold either without any expense whatever to the state or that the price received for them should not only equal the par value of the bonds, but such additional sum as would cover the expense necessarily incurred in their issuance and sale. This view is not consistent with the act of legislation submitting this proposition to a vote of the people, nor with the subsequent act authorizing the employment of a fiscal agent. In the former act provision was made for the treasurer to advertise said bond issue in two newspapers of general 'circulation, one within and the other without the state, if the proposition to issue said bonds should be adopted, and it was also required, in obedience to the provision of the state constitution, that the entire act submitting said proposition, covering four and one-half pages of the Session Laws of 1919, should be published in at least one newspaper in every county of the state for a period of three months next preceding the election at which said proposition was submitted to the people. These expenditures alone involved an outlay of several thousand dollars. Under the latter act provision is made for the payment of the fiscal agent’s commission and some expenses of the State Treasurer. In addition to these provisions for expenses in connection with the sale of said bonds, the act submitting the bond proposition to a vote of the people provided that: ! ‘ The expenses of printing — 775 — or lithographing and procuring suitable bonds with interest coupons attached, for the purpose of carrying out the provisions of this act, shall be paid out of the moneys arising from the sale thereof as an expense incident to the laying out, surveying and constructing of said system of state highways.” (1919 Session Laws, 581.) No mention is made of any of these expenditures in connection with the par value of the bonds or the rate of interest they were to bear’, so it is clear that it was not the intention of the legislature to require that these bonds should bring their face value over and above all expenses that might be incurred in connection with their issuance and sale. The fact is that, whether such expenses are great or small, they have nothing to do with determining the par value of the bonds or the rate of interest on them. It is conceded that a bona fide attempt has been made by the state treasurer to dispose of these bonds according to the terms of chapter 193 of the 1919 Session Laws, and that such attempt has failed to bring a purchaser of said bonds at par and five per cent interest. This condition being known to the late legislature, suppose that body had determined that another effort should be made to sell said bonds, and that, instead of providing for the employment of a fiscal agent, in the hope of obtaining a large popular subscription to said bonds among the citizens of this state it had provided that the State Treasurer should advertise said bond issue for a certain period of time in every newspaper published in the state of Idaho, and that in addition to this effort to arouse a local interest in the purchase of these bonds he had been authorized' to advertise said bonds in every daily newspaper and every financial publication published in the United States in a city of a population of one hundred thousand or more, and a large appropriation had been made for this additional adyertising, it would hardly be said that such a measure was beyond the legislative power, and that by submitting said bond issue to a vote of the people, the -legislature had so limited itself — 776 — that it was powerless to authorize the use of any additional means to effect a sale of these bonds. What difference in principle is there between such means and the means adopted by the late legislature in authorizing the employment of a fiscal agent? There is none. Then there is no objection from a legal standpoint to the method adopted by the legislature as to the employment of a fiscal agent. But the objection that is urged, it seems to us, grows out of a suspicion that under the guise of employing a fiscal agent and paying him a commission for services there may be an attempt on the part of the purchaser to obtain the commission and thus in effect make sale of the bonds at less than par, or, if at par, make them bear a higher rate of interest than that prescribed by the law. Clearly, to our minds, if the employment of a fiscal agent should develop into a subterfuge for the accomplishment of such a purpose as this, it would be a violation of the law, but we may not declare this provision invalid because of the fact that officers, if they were acting in bad faith, might permit something'that is forbidden by the law. We must assume that the officers charged with the handling of this transaction will be honest and will act in good faith for the purpose of accomplishing the sale of these bonds according to the spirit as well as the letter of the law. The act providing for the appointment of a fiscal agent or broker gives ample power to the officers of this state to protect the state against such a transaction as seems to be feared. This act provides that, “No compensation, expenses or other sum shall be paid to said broker or fiscal agent unless the bidder procured by him shall actually purchase the whole or a part of said bonds at a price of not less than par and accrued interest, and then only coincident with delivery of said bonds to such purchaser and payment therefor by him. Payment made to said broker or fiscal agent shall be made on claims approved by the State Treasurer as head of the department or institution, as required by general law, and passed upon and approved by the state board of examiners.” — 777 — It will thus be seen that until the bonds are actually sold and paid for, such broker or fiscal agent would not be entitled to payment of such allowance as might be agreed upon between him and the state treasurer, and if it should appear that the transaction was one by which the purchaser of the bonds was directly or indirectly to receive the benefit of the commission allowed to the fiscal agent, it would not only be within the power, but it would be the duty, of the officers of this state having to do with the allowance of said claim to reject it, and we must assume that said officers will act in the interest of the state of Idaho, and will use all diligence to prevent the accomplishment of any such unlawful purpose, if it should be attempted. It would seem, also, that the defendant bases his objection in part upon the assumption that in no event could a sale of said bonds be made above par, or at a premium. While it may be admitted that probably a sale might not be made above par just at this time, this court cannot assume as a matter of law that a sale cannot be so made, either now or at any time in the future. While these reasons seem to us sufficient to warrant the holding of this act valid as to the appointment and payment of a fiscal agent or broker, it may be well to cite a few decisions of other courts in which similar questions have been passed upon. The defendant has cited a number of eases in which courts have held that under a provision for the sale of bonds at not less than par a commission to a broker or fiscal agent which was found to be claimed in the interest of the purchaser of the bonds could not legally be paid, for the reason that such a transaction amounted to a sale of such bonds at less than par. We think there can be no question that this holding is correct, and, as we said above, if it should be found in this case that the purchaser was to receive any commission allowed to a" broker or fiscal agent, no legal payment of such commission could be made to such broker or fiscal agent, or to any person for him. — 778 — In Armstrong v. Ft. Edwards, 159 N. Y. 315, 53 N. E. 1116, Manitou v. First Nat. Bank, 37 Colo. 344, 86 Pac. 75, Davis v. City of San Antonio (Tex. Civ.), 160 S. W. 1161, Miller v. Park City, 126 Tenn. 427, Ann. Cas. 1913E, 83, 150 S. W. 90, the implied authority of cities to pay a commission for the sale of bonds under a provision of law requiring that such sale should be made at not less than par has been upheld, and sales under such conditions have been held not to have been made below par. In Miller v. Park City, supra, in upholding a sale as not below par when the commission was paid out of the proceeds of the bond sale, the court said: “It is needless to say that if charges of this kind are sought to be made the cover for an actual sale at less than par, or if they are grossly unreasonable and attended by marks of bad faith, the court would not hesitate to declare such transaction fraudulent and void.” And this appears to be the universal holding of the courts upon this point. In the case of Mayor etc. of New York v. Sands, 105 N. Y. 210, 11 N. E. 820, in discussing the implied power of the controller to employ an agent and pay him a commission of one-half of one per cent in making sale of $15,000,000 of bonds which resulted in the payment of a premium of four and one-half per cent on said bond sale, the court said: “It is a matter of common knowledge that such loans, in all countries of the world, are usually negotiated through agencies outside of the regular financial authorities of the government making the loans.” And the court calls attention to the fact that during the Civil War the federal government used such agencies in raising the large sums that were required by the government during that period, and that without such assistance it would have been difficult, if not impossible, to effect the desired loans. And in the same case the court further says: “The necessity of incurring feome expenses in the negotiátion of loans and placing the bonds authorized to be issued" is, in view of the universal practice in such cases, too plain to admit of — 779 — dispute, and it is obvious that, unless the controller was vested with power to pay them, the -whole purpose of the act might be defeated at its outset.” The supreme court of Minnesota in the case of State v. West Duluth Land Co., 75 Minn. 456, at page 467, 78 N. W. 115, 117, said: “Under the provisions of sec. 4, chapter 289, supra, a sale of the bonds issued thereunder at less than par value was forbidden. The bonds now under consideration, $140,000 in amount, were turned over to a broker for sale under a written contract with the board of county commissioners. In this contract, it was stipulated that the broker should pay'for lithographing and printing the blank bonds, for legal advice and services, and all other expenses incident to a sale, for which, and as compensation in full, he was to receive the sum of $14,000, 10 per cent of the face value of the bonds sold. On these facts we are asked to hold that there was a plain violation of sec. 4, and that the bonds are void. There might be cases where the facts very conclusively show that an agreed compensation of ten per cent for the sale of the bonds was a palpable evasion of such section, but we have no such case before us. We cannot say, as a matter of law, that, under the conditions of this contract, there was a violation of sec. 4, which forbids a sale of the bonds at less than par.” The case most nearly in point to which our attention has been directed is one decided by the supreme court of Missouri, in which it was held that the board of fund commissioners of that state, which was authorized to issue and sell three and a half million dollars of state bonds at not less than par, had implied power to employ a broker and pay him a commission out of the proceeds of said bonds for his services in making sale thereof at not less than par. In that case the court said: “The question therefore is: Can a contract to pay a commission for procuring purchasers for these bonds be made by the board? We think so. First, it is a conceded fact that the defendants have tried to find pip-chasers and have — 780 — failed. This might have been expected owing to the exceedingly low rate of interest (3% per cent) which the bonds bear, and owing to the further fact that the members of such board are not in position to find purchasers, as would be some established brokerage company, with a clientele all over the country. Such boards are not usually in touch with the great mass of persons who invest in such securities. A large issue of bonds of this character might be sold to the clientele of any large brokerage firm, in small quantities to each client. Such companies usually have and can find persons among their customers who could be easily induced to take one or more of such bonds even at a low rate of interest, but 'this would require work. What a brokerage firm could do in this way, the usual board charged with the sale of low rate bonds could not do. “We are therefore of opinion .... (5) that under such facts there is, from the legislative acts, supra, a clearly implied power which authorizes such board to enter into a contract with some financial agent to procure for such board a purchaser or purchasers who will take such bonds at their par value, and in such contract to agree to pay and pay such agent, out of the proceeds of the sale, a reasonable commission for the services rendered.” (Church v. Hadley, 240 Mo. 680, 145 S. W. 8, 30 L. R. A., N. S., 248.) “Except as limited by constitutional provisions, the legislature has absolute control over the finances of the state; and its power as to the creation of indebtedness or the expenditure of state funds, or making appropriations, is plenary, and the exercise of this power cannot be controlled or reviewed by the courts. The legislature is, however, bound by all constitutional limitations, although in determining whether the conditions or contingencies specified in the constitution as justifying the contraction of a debt or the making of an appropriation exist, the legislature has large discretion, and its action is not subject to judicial control unless such discretion has been plainly abused.” (36 Cyc. 882.), — 781 — “Power of a municipality to issue and sell bonds carries with it the implied power to secure such reasonable and necessary assistance as may be requisite to bring about an advantageous sale and to this end the municipality acting in good faith may employ a broker regularly engaged in the business. And its power is not confined to the employment of a broker only. It may employ any person, although not a regular broker, that the municipality may in good faith consider able to assist it in selling and disposing of the bonds.” (2 Dillon, Municipal Corporations, sec. 895.) In -the ease at bar it is not a question of implied power of the State Treasurer to employ a broker or fiscal agent; that power is expressly conferred upon him by the act of the late legislature known as Senate Bill No. 319. We think there can be no question as to the power of the legislature to adopt this plan in aid of the sale of said bond issue and to make the necessary appropriation therefor, and therefore hold said act not in conflict with the constitution of this state. We also hold that the payment of such commission would not reduce the selling price of said bonds below par nor raise the interest rate on said bonds above five per cent. While we hold Senate Bill No. 319 to be a valid act of the state legislature requiring the State Treasurer to employ a fiscal agent or broker to assist in making sale of said bond issue, if he shall find that it cannot be sold without incurring such expense, we think some degree of discretion is given to said Treasurer as to the exact time when it shall be necessary, if at all, to employ the services of such fiscal agent or broker, for manifestly it would be unreasonable to hold that, if it appeared to the Treasurer possible to make such sale without incurring this expense, he would still be required to proceed at once to the employment of a fiscal agent and thus incur an expense that could reasonably be avoided. Since it does not appear from the petition that said Treasurer will not proceed as directed by said Senate Bill No. 319, after he shall be satisfied that a sale — 782 — cannot be made otherwise, and after he has been satisfied that he can proceed legally under said Senate Bill No. 319, and since it does not appear from said petition that a sale can be made even with the aid of a fiscal agent or broker, the demurrer should be and is hereby sustained. The alternative writ should be quashed and the peremptory writ denied. It is so ordered.' > Bice, C. J., and Budge and McCarthy, JJ,, concur.