In re Canal Certificates

Chief Justice Hayt delivered the opinion of the court. The questions submitted for our consideration are so general in character as to leave the court in doubt as to the particular provision or provisions of the constitution in the light of which Acting-Governor Nichols wishes an investigation to be conducted. While this department will be found ready and willing at all times to co-operate with and furnish to the executive such assistance as it may be able, to facilitate the discharge of the public business, yet the court again takes — 67 — the liberty of calling attention to the necessity of directing consideration to the specific provisions of the constitution upon which a construction is desired, when the inquiry concerns the constitutionality of a bill, or an act of the legislature. In re Irrigation, 9 Colo. 620; In re House Bill No. 165, 15 Colo. 593; In re Loan of School Fund, 18 Colo. 195. We have been aided in the present instance by brief arguments from the attorney general and H. Riddell, Esq., of the Denver bar. We shall limit our reply to the constitutional provisions called to our attention in such arguments. The expenses of construction of the canal in question are to be met in part by certificates of indebtedness. Both principal and interest of these certificates are only to be paid out of funds received for the carriage of water, or in payment for lands. The act expressly provides against any indebtedness being incurred on the part of the state, and therefore is not in conflict with the constitutional provisions heretofore considered by this court fixing a limitation upon state indebtedness. See, In re Appropriations, 13 Colo. 316. By the terms of the act the certificates authorized may, when issued, be “ accepted by the state in payment for the carriage of water or in payment for lands.” As the state has not undertaken the construction or management of any ditch other than the one mentioned in the act, the carriage of water for which the certificates are to be receivable must necessarily be confined to water carried by this ditch, at least for the present. The same limitation does not, however, apply to the payment for lands. No restriction as to the location of such lands is to be found in the act. Only a small portion of the large bodies of land owned by the state are situate in proximity to the route of the proposed ditch. This fact was well known to the legislature, and in the absence of any express limitation we conclude that it was the intention to make the certificates receivable in payment for lands purchased from the state, without regard to the location of such lands. Is the legislature empowered to authorize the acceptance of such certificates in payment for lands of the state ? Out — 68 — side of a few small tracts of land used for specific purposes, the only lands owned by the state were received as donations from the general government for specific purposes, such as schools, public buildings, etc. See, secs. 7, 8, 9 and 10, Enabling Act. The framers of our constitution with conscientious regard for the terms of the gift, inserted the following provision in that instrument: “ The general assembly shall, at the earliest practicable period, provide by law that the several grants of land made by congress to the state shall be judiciously located and carefully preserved and held in trust subject to disposal, for the use and benefit of the respective objects for which said grants of land were made.” Sec. 10, Art. IX, Constitution. No question with reference to the disposal of the internal improvement fund is involved in any of the interrogatories propounded, or by the terms of this act. Such fund, while properly applicable to the construction of a system of canals and reservoirs within the state, at the discretion of the legislature, can only be made available by an express appropriation. Int. Imp. Fund, 12 Colo. 285; In re Int. Imp., 18 Colo. 317. No argument is required to show that the payment for lands purchased from the state by certificates issued for the construction of this ditch, as provided by the act before us, would necessarily result in diverting these lands and the proceeds thereof from the use and benefit of the respective objects for which the grants were made. We therefore agree with the attorney general and with Mr. Eiddell, that the act under consideration is unconstitutional and void, in so far as it authorizes the state to accept the certificates issued in payment for state lands. A further provision of the act under consideration reads as follows: “ * * * The state board of land commissioners, in order to facilitate the construction of said canal and reservoirs, may in conjunction with the board of control, advertise and offer for sale -at not less than minimum price, every alternate — 69 — quarter section of the state and school lands lying under the said canal.” Inasmuch as the foregoing directly embraces the school lands in its provisions, attention is called to the following section of the state constitution in addition to the one previously cited. “ The public school fund of the state shall forever remain-inviolate and intact; the interest thereon only shall be expended in the maintenance of the schools of the state, and shall be distributed amongst the several counties and school districts of the state, in such manner as may be prescribed by law. No part of this fund, principal or interest, shall ever be transferred to any other fund, or used or appropriated except as herein provided. The state treasurer shall be the custodian of this fund, and the same shall be securely and profitably invested as may be by law directed. The state shall supply all losses thereof that may in any manner, occur.” Sec. 3, art. IX, State Constitution. This section was recently considered by the court in answering a question submitted by the state senate. As the views of the court were quite fully expressed at that time, we refer to the opinion then rendered without further comment. In re Loan of School Fund, supra. But this is not the only constitutional objection to this portion of the act. By its terms the board of control is authorized to act in conjunction with the state board of land commissioners in the sale of certain of the public lands of the state, while the constitution in express term's lodges in the state board of land commissioners the “ control and disposition of the public lands of the state under such regulations as may be prescribed by law.” Sec. 9, art. IX. By the act under consideration the legislature is attempting to give to a body of its own creation authority to exercise, conjointly with the state board of land commissioners, powers vested absolutely in the latter by the fundamental law of the state. This provision of the constitution was under consideration by this court quite recently in answering — 70 — questions propounded by the executive relating to the leasing of state lands. It was then decided that, “ the provision ‘ under such regulations as may be prescribed by law,’ means such reasonable rules as may be prescribed from time to time by the legislative department of the government.” In re Leasing of State Lands, 18 Colo. 359. And, although the court was unanimously of the opinion that the limitation of the term of leases of state land, as provided by the act of 1887, should be upheld as a reasonable regulation, it was said: “ It is not to be inferred from this that all legislation upon the subject would be binding upon the state board. Should the legislature, under guise of regulations, attempt to take away all power of disposition of the state lands from the state board, or should laws be enacted for the manifest purpose of favoring other than the highest bidder, such acts would be manifestly in violation of the constitution and void.” If the legislature may require the state board of land commissioners to act in conjunction with the board of control of State Canal No. 1, in disposing of the lands under that canal, it may likewise create other boards to act in like manner in other instances, and thereby entirely destroy the independence of the board created by the constitution. The provision is in no sense such a regulation as that contemplated by the constitution, and cannot be upheld. Although parts of the act are unquestionably in conflict with the constitution, the entire statute does not necessarily fail for this reason. The act is to expedite the completion of a canal, the construction of which had theretofore received the sanction of three successive legislatures, including the one passing the measure under review. A legislative intent to complete the work inaugurated could not well be more manifest. This intent in no measure rests upon the objectionable provisions. The act provides for the issuance of certificates in lieu of cash, and although the certificates cannot be accepted in payment for the public lands sold by the state, they may be accepted in lieu of money for charges for the carriage of water in said canal, or for perpetual water — 71 — rights thereunder, as provided by see. 14 of the act. Tripp et al. v. Overocker et al., 7 Colo. 72. As at present advised we are aware of no constitutional objection to the issuance of certificates limited as aforesaid.