Stein v. Morrison

Current Expense op State — Legislative Appropriations — Tax Levy —Means op. Kaising Kevenue — Debt Limitation — Constitutional Provisions — Writ op Prohibition — When Will Issue — . Executive Acts — Ministerial Acts — Technical Questions— Interpretation op Constitutional and Statutory Provisions— Jurisdiction — Judicial and Quasi Judicial Acts. 1. Section 2 of article 7 of the constitution recognizes other methods of raising revenue than that by a tax levy on real and personal property. 2. It must be assumed by the courts, until the contrary appears, that the legislature in making their biennial appropriations and tax levy to meet the same estimated the amount of revenue the state would derive from all other sources than that of a tax levy, and that sufficient levy was made to cover the difference between the total appropriation and the. amount to be received from other sources than that of a tax levy. 3. The court must take judicial notice of the constitutional and statutory methods provided for raising revenues and augmenting the public funds, but cannot take notice of the amount so raised and received, and until it is shown that the total income for the two years for which legislative appropriations are made is not sufficient to meet such appropriations, the courts will assume that the legislature has kept within the constitutional limitations. 4. Article 7 of the constitution contemplates a complete scheme for the collection of taxes and revenue and the payment of the current expenses of the state, looking to the general purpose of ending the two years for which appropriations are made with the expenses of maintaining the state government for that period fully paid. 5. The public revenues may be appropriated by the legislature in anticipation of their receipt as was done by the general appropriation act of March 11, 1903 (Sess. Laws 1903, 308), and it is not necessary to the validity of such an appropriation that funds should be in the treasury at the time to meet the same. 6. Such appropriations do not constitute a debt or liability against the state within the provisions of section 1, article 8, of the constitution, but rather operate upon the incoming revenues for the same period of time in the nature of a cash transaction as contemplated by article 7. 7. So long as the financial system is carried out in accordance with the requirements of article 7, the current expenses of the state government cannot accumulate or ripen into a debt. 8. Petition examined and held that it does not state facts sufficient to entitle plaintiff to the relief demanded. 9. The courts cannot disregard the provisions of the constitution and laws, notwithstanding the fact that defenses interposed thereunder may be designated technical. 10. Under our constitution and form of government which recognizes the independence of the “three distinct departments of government,” the judicial department cannot prohibit the executive department from acting within the recognized scope of that branch of the government. 11. The writ of prohibition as authorized by section 9 of article 5 of the constitution is the writ of prohibition as known and recognized at common law. 12. Such writ does not lie to prohibit or restrain purely ministerial acts, but runs to restrain encroachment of jurisdiction assumed to be exercised of a judicial or quasi judicial function. 13. Williams v. Lems, 6 Idaho, 184, 54 Pac. 619, distinguished; and expressly overruled in so far as it holds that the writ of prohibition will lie to restrain a purely ministerial act. 14. The word “jurisdiction,” as used in section 4994, Revised Statutes, means the right to hear and determine a matter, and carries with it the idea of exercising judicial or quasi judicial functions. 15. When a statutory or constitutional provision is adopted from another state, where the courts of that state have placed a construction upon the language of such statute or constitution, it is to be presumed that it was taken in view of such judicial interpretation, and with the purpose of adopting the language as the same had been interpreted and construed by the courts of the state from which it was taken. (Syllabus by the court.)

ORIGINAL application for writ of prohibition. The act of March 16, 1903, the funding bond act, contravenes the constitution in three respects: It exceeds when added to the other expenditures authorized, the tax levies provided for the years of 1903 and 1904; it increases the debts and liabilities of the state beyond the limit fixed by section 1, article 8 of the constitution; it provides money for building a bridge and a wagon road authorized by local and special laws, contrary to the provisions of section 19, article 3 of the constitution; and it provides for raising money which must be repaid by taxation for a purely private purpose, and gives or lends the faith and credit of the state to a private corporation for private purposes contrary to the provisions of section 2, article 8 of the constitution. The issuance of the bonds provided for in this act amounts to an appropriation to the extent of the sale of the bonds, for purposes prohibited by the constitution, and the sale of them to the school fund, or exchanging them for money in the school funds, as defendants are doing, is unconstitutional, and unauthorized. (Idaho Const., art. 3, sec. 19, art. 7, secs. 11, 14, art. 8, secs. 1, 2, art. 9, sec. 3.) The power to create debts or liabilities and to levy taxes cannot exceed the limits-fixed by the constitution. (Cooley on Taxation, 3d ed., 172, 173, and authorities cited; Cooley’s Constitutional Limitations, 6th ed., 636.) The legislature cannot levy taxes for private purposes unless authorized by constitutional provisions to do so. Bounties to the producers of sugar, manufacturers of bridges, the grower of trees, private educational institutions, etc., are contrary to the genius of free institutions, amount to the confiscation of property for private uses, and such acts are universally held to be void. (Cooley on Taxation, 3d ed., 84; Cooley’s Constitutional Limitations, 6th ed., 207, 587, 598, 599, 636; Loan Assn. v. Topelca, 20 Wall. 655, 22 L. ed. 455; Cole v. La Grange, 113 IJ. S. 1, 28 L. ed. 896, 5 Sup. Ct. Rep. 416; City of Parkersburg v. Brown, 106 IJ. S. 487, 27 L. ed. 238, 1 Sup. Ct. Bep. 442; Michigan Sugar Co. v. Dix, 124 Mich. G74, 83 Am. St. Rep. 354, 83 N. W. 625; Sutherland-Innes Go. v. Tillage of Evart, 86 Fed. 597; Dodge v. Township of Mission, 107 Fed. 827, 46 C. C. A. 661, 54 L. R. A. 242; Bush v. Board of Supervisors, 159 N. Y. 212, 70 Am. St. Rep. 538, 53 N. E. 1121, 45 L. R. A. 556; Duques v. Dresden, 77 Me. 186; Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; Weismer v. Douglass, 64 N. Y.-91, 21 Am. Rep. 586; Opinion of the Judges, 58 Me. 590; Mather v. Ottaiva, 114 111. 659, 3 N. E. 216; Ottawa a). Qarey, 108 U. S. 110, 27 L. ed. 669, 2 Snp. Ct. Rep. 361; Coates v. Campbell, 37 Minn. 498, 35 N. W. 366; Attorney General v. Eau Claire, 37 Wis. 400; Osborne v. Adams, 106 FT. S. 181, 27 L. ed. .129, 1 Sup. Ct. Rep. 41; State v. Adams, 15 Neb. 569, 20 N. W. 96; Sharpless v. Mayor, 21 Pa. St. 168, 59 Am. Dec. 759; Curtis v. Whipple’s Admr., 24 Wis. 350, 1 Am. Rep. 187; Deal v. Mississippi County, 107 Mb. 464, 18 S. W. 24, 14 L. R. A. 622; People v. Salem, 20 Mich. 452, 4 Am. Rep. 400; Chapman v. City of New York, 168 N. Y. 80, 85 Am. St. Rep. €61, 61 N. E. 108, 56 L. R. A. 846; Lowell v. City of Boston, 111 Mass. 454, 15 Am. Rep. 39; Feldam v. City of Charleston, 23 S. C. 57, 55 Am. Rep. 8; State v. Osawkee Township, 14 Kan. 418, 19 Am. Rep. 99; Whiting v. Sheboygan etc. By. Co., 25 Wis. 167, 3 Am. Rep. 30.) These authorities establish be-3rond dispute that the legislature cannot raise money by taxation nor authorize issuance of the bonds of the state for the purpose of paying sugar bounties. The act creating or authorizing the construction of the Weiser bridge, and the Long Talley road, are each local and special, and contrary to the provisions of section 19, article 3 of the constitution. A law which applies or operates upon one portion of the state only, in terms and in effect, is local, while a law which operates upon or applies to one person or thing, or less than all of the persons and things in a given class, is special. This rule of statutory construction is too well recognized to require citation of authority. The plaintiff has an adequate remedy at law. If the laws complained of are void, or authorize an illegal bond issue, the plaintiff cannot be compelled to pay taxes on his property in payment of the same. No provision has yet been made for the payment of any of these bonds by a tax levy. The writ of prohibition will not issue to prohibit or restrain the acts of executive or ministerial officers. Excess of jurisdiction: The petition should show that the plaintiff called the defendants’ attention to the excess of their jurisdiction. This is not done. (16 Ency.. Pleading & Practice, 1128, note 5; 59 Cal. 471; 72 Cal. 572; 26 Ark. 52; 42 Mich. 239, 3 N. W. 913; 137-Mo. 681, 39 S. W. 276; 21 Nev. 47, 37 Am. St. Eep. 478, 24 Pae. 367; 4 Utah, 382; 5 Utah, 531; 47 La. Ann. 1, 16 South. 586.) The writ of prohibition issues to restrain acts of judicial tribunals boards, etc., only, and not ministerial officers or acts. (53 Cal. 291; 52 Cal. Ill; 116 U. S. 574, 21 L. ed. 735, 6 Sup. Ct. Eep. 510, 54 Pac. 619 (should be overruled); 57 Cal. 550; 63 Cal. 245; 62 Cal. 4’07.) The writ of prohibition will not lie against board of election commissioners. (54 Cal. 404; 20 N. Y. 540; 26 Mo. 253.) Nor against a tax collector. (High on Extraordinary Legal Eemedies, 782; 53 Cal. 289.) 'Is not the remedy for illegal taxation. (46 Cal. 455; 47 Cal. 651; 36 Cal. 67; 48 Cal. 65; 92 U. S. 606, 23 L. ed. 663.) The taxpayer suffers no wrong until he pays the tax, and if it be illegal he can recover back. (97 Mass. 152.) An action for the recovery of taxes paid under protest is the remedy for illegal taxation. (49 Cal. 648; 51 Cal. 369; 52 Cal. 80, 170; 53 Cal. 380.) Writ will not issue to restrain auditor from drawing warrants (57 Cal. 550); or from proceeding against defaulting collector (42 Mo. 133); or governor from issuing commission to an officer on the ground of its irregularity (4 McCord (S. C.), 206, 17 Am. Dec. 731); or mayor from investigating misconduct of chief of police (23 Gratt. 51; 14 Bush,.-234) ; or board of supervisors of-a city from passing an ordinance .fixing the price of water. (63 Cal. 245.) Non; against legislative or executive officers. (16 Ency. Pleading & Practice, 1108, cases cited. See title “Prohibition,” Ency. of PI. & Pr., 1094; 127 Mass. 50, 34 Am. Eep.'338; 1 Hill, 195; 7 Wend; 486; 104 N. C. 818, 10 S. E. 696, 1023; 116 U. S. 167, 6.Sup,.-.Ct. Eep. 570; 20 N. Y. 531; 68 Conn. 543, 37 Atl. 388; 30 W. Ya. 534; 33 Wis. 93, 3 L. E. A. 58; 15 Q. B. 446; Shortfc on Mandamus and Prohibitions, 452; 41 Mo..44; 2 Hill, 367, 38 Am. Dec. 593, 66 Ala. 453; High on Extraordinary Legal Eemedies, 782, 783; 6 Colo. 534.) The executive branch of our state is administered by the governor and his official family, and the judiciary has no authority to invade the realm of that department with extraordinary writs' or attempt to control their official acts or discretionary powers. (55 Cal. 483; 17 Colo. 156, 31 Am. St. Eep. 284, 28 Pac. 1125; 127 Ind. 588, 22 Am. St. Eep. 663, 27 N. E. 175, 11 L. E. A. 763; 22 Md. 170, 85 Am. Dec. 643; 78 Md. 152, 27 Atl. 616; High on Extraordinary Legal Eemedies, 782, 783.) Biennial appropriations and expenditures authorized thereby, the payment of which is provided for by tax levy and other sources of revenue, are not included in the debt limitation prescribed by section 1, article 8 of the constitution. Plaintiff’s application must fail, because he has not pointed out and specifically shown the court wherein the liabilities pleaded exceed the constitutional limit of indebtedness. Plaintiff alleges in his petition that the outstanding bond and warrant indebtedness when the legislature convened amounted to $752,619.54. In computing' the debt limit, section 1, article 8 of the constitution excluded therefrom the debt of the territory at the date of its admission as a state. It is absolutely impossible, from the petition, to determine what portion of the above indebtedness comes within this particular exception. Section 1, article' 8 of the constitution provides that “the legislature shall not in. any manner create any debt or debts, liability or liabilities which shall, singly or in the aggregate, ■ exclusive of the debt of the territory at the date of its admission as a state, exceed the sum of one and one-half per centum upon the assessed; value .of .the taxable property in the state,” with certain exceptions. This, we insist, is a limitation upon the outstanding: bonded indebtedness of. the state, or such indebtedness as is not included within the general appropriations authorized, required and limited by section 11, article 7 of the constitution. Our contention that the debt limitation prescribed by section 1, article 8 of the constitution does not include the biennial appropriation provided for in section 11, article 7 of the constitution is fully sustained by a well-settled line of authorities in California, based upon the constitutional provision from which our section 1 article 8 was copied. (State v. McCauley., 15 Cal. 430; McCauley v. Brooks, 16 Cal. 24; Koppilcus v. State Capitol Commission, 16 Cal. 249; People v. Pacheco, 27 Cal. 176; McBean v. City of Fresno, 112 Cal. 159, 53 Am. St. Eep. 191, 44 Pac. 358, 31 L. E..A. 794; Water Go. v. Gity of Salem, 5 Or. 29; Law et al. v. People, 87 111. 385; City, of Springfield v. Edwards, 84 111. 631; Valparaiso et al. v. Gardner, 97 Ind. 2, 49 Am. Eep. 416.) The writ of prohibition will not lie where the proceedings which it is sought to prohibit are absolutely void. (Woodward et al. v. City of San Francisco, 95 Cal. 272, 30 Pac. 535; Barnes v. Gottschalk, 3 Mo. App. 222.) Tbe power to declare a statute unconstitutional is one of the highest intrusted to a judicial tribunal, and is only to be exercised with the greatest care, and only when there is no doubt of the unconstitutionality of the law. If there is any doubt in the mind of the court as to the constitutionality of a law, it must be resolved in favor of its validity. To doubt is to resolve in favor of the constitutionality of the law. (Citizens’ Street By. Co. v. Haugh, 142 Ind. 254, 41 N. E. 533, and cases cited; State v. Boby, 142 Ind. 168, 51 Am. St. Eep. 174, 41 N. E. 145, 33 L. E. A. 213; People v. Draper, 15 N. Y. 545; Carpenter v. People, 8 Colo. 116, 5 Pac. 825; Darrow v. People, 8 Colo. 426, 8 Pac. 924; People v. McFadden, 81 Cal. 489, 15 Am. St. Eep. 66, 22 Pac. 851; Wichita v. Burleigh, 36 Kan. 34, 12 Pae. 332; Ex parte Williams, 87 Cal. 78, 25 Pac. 248; McDonald v. Conniff, 99 Cal. 386, 34 Pac. 71; Smith v. McDermott, 93 Cal. 421, 29 Pac. 34; Sabin v. Curtis, 3 Idaho, 662, 32 Pac. 1130; City of Guthrie v. Territory, 1 Okla. 180, 31 Pac. 190; People v. Mullender, 132 Cal. 217, 64 Pac. 299.) Statement of Facts. The plaintiff filed his petition herein for a writ of prohibition against the governor, Secretary of State, attorney general, state treasurer and state auditor, praying the issuance of a writ from this court prohibiting the defendants issuing and selling the bonds of the state as authorized by certain acts of the seventh legislative session of the state legislature. The first cause of action is set out in the petition as follows: “The petitioner and affiant, Edward Stein, being first duly sworn, on his oath deposes and says: That he is a citizen of the United States, and of the state of Idaho, and that he is a taxpayer and resident of and in the state of Idaho, and beneficially interested in the above-entitled action, in the subject matter thereof, and in the result of the same. That the defendant, John T. Morrison, is the duly elected, qualified and acting governor of the state of Idaho. That the defendant, H. N. Coffin, is the duly elected, qualified and acting state treasurer of the slate of Idaho. That defendant, Will EL Gibson, is the duly elected, qualified and acting Secretary of State of the state of Idaho. That the said defendants, respectively, acting in their respective official capacities, have, wrongfully, unlawfully, and without authority of law, as affiant is informed, advised and verily believes, issued the bonds of this state, registered and caused the same to be registered in the state auditor’s office, and sold and invested the same in the public school funds held in trust by the state for school purposes, under that certain act passed or attempted to be passed by the seventh session of the Idaho legislature, entitled ‘An act providing money to pay certain appropriations made by the legislature, and to pay certain deficiency claims against the state of Idaho by providing for the issuance of bonds and making provision for the payment of interest thereon and creating a sinking fund/ approved March 16, 1903, to the extent of $93,000. That the said defendants, acting in their respective official capacities, will, as this affiant is informed and verily believes, wrongfully, unlawfully and without authority of law, and contrary to the constitution of Idaho, issue, register and cause to be registered in the state auditor’s office of Idaho; and sell and invest in the public school funds now held in trust for school purposes. by the state, the further bonds of the state, under the provisions of said entitled act, unless prohibited and restrained from so doing by the orders and process of this honorable court. “The affiant is advised, informed and verily believes that the said act of the legislature approved March 16, 1903, known as the deficiency bond act, and entitled as above set forth, does: not vest authority in the said defendants, in their said respective official capacities or otherwise, to issue or cause to be is-, sued, or registered in the said state auditor's office, or to sell or invest in the public school fund held in trust by the state; the bonds of the state to any amount or sum whatever, and that the said act is void and contravenes the provisions of the constitution of Idaho in the following particulars, to wit: “1. Said act attempts to increase the expenditures and appropriations which said session of the legislature authorized, for the years of 1903 and 1904, and each of said years, in and to sums exceeding the tax levy provided for the said years and each of them, contrary to the provisions of section 11, article 7 of the said constitution. “2. Said act attempts to authorize expenditures and to create debts and liabilities of the state, which, added to the prior and then existing liabilities and debts of the state, exceed one and one-half per cent of the assessed valuation of property in the state, contrary to the provisions of section 1, article 8 of said constitution. “3. It provides, or attempts to provide, by taxation money for private purposes; money to be paid out of the state treasury in bounties to the producers of sugar in Idaho from beets grown in Idaho, to subsidize' and assist the private enterprise of manufacturing sugar in the state of Idaho, contrary to the express provisions of section 2, article 8 of the said constitution. “4. It provides, or attempts to provide, money raised by general taxation for the construction of a local bridge' and local road, both of which were attempted to be authorized by those certain special and local acts passed by the seventh session, to wit, that certain act entitled fAn act to appropriate fifteen thousand dollars as a portion of the expense of erecting a steel bridge across Snake river at a point near Weiser in the county of Washington/ approved February 27, 1903; and that certain other act entitled ‘An act to provide for the construction of a wagon road in the counties of Boise and Idaho and creating a fund for the completion of the same, and providing therefor the sum of twenty thousand dollars, and requiring a donation from citizens in order to insure the completion of the construction of said road/ approved March 11, 1903, contrary to the provisions of section 19, article 3 of said constitution. “Affiant, the plaintiff and petitioner, says that he is informed from the records in the said state auditor’s office, and verily believes, and therefore states the fact to be, that the total assessed valuation of property in the state of Idaho, after the same had been equalized .by the state board of equalization, was, at the time of the passage and approval of said acts, and each of them, the sum of $61,290,875.36 and no greater sum or valuation. That the subsequent assessment made for the year of 1903, after the same had been equalized by the state board of equalization, amounts to the sum of $65,961,583.09 and no greater sum or valuation. That the indebtedness of the state, including outstanding warrants and bonds purchased and held with the public school and other special funds held in trust for different purposes by the state, amounted at the time of the convening of the said seventh session of the legislature to the sum of $752,619.54. That the following specific appropriations and expenditures were authorized, or attempted to be authorized by the said session of the legislature, to wit: For legislative expenses (Acts 1803, page 3), $50,000; for Academy of Idaho, deficiency (Id., page 8, $6,554.56; for bridge at American Falls (Id., page 55), $10,000; for pure food commission (Id., page 98), $4,900; for Salmon river bridge (Id., page 146), $3,000; for game and fish warden (Id., page 20), $2,000; general appropriation bill (Id., pages 304 to 308), $598,375; making the total specific appropriations in the sum of $674,375.56, for which no ijond issues were authorized, but to meet which a tax levy of $275,000 for each of the years of 1903 and 1904, or $550,000 for the two years, was provided. “That in addition to said specific appropriations for amounts certain, the said seventh session of the legislature assumed the authority, but without right so to do, as plaintiff is advised, informed and verily believes, to pledge the faith and credit of the state for the payment of bounties upon sugar produced within the state during the years of 1903 and 1904 from beets grown in -the state in some uncertain and unascertained amount by attempting to authorize the payment of bounty upon sugar produced as aforesaid, out of the public treasury, moneys raised and to be raised by taxation of the property of the citizens of-the state, by passing that certain act entitled ‘An act to provide for the encouragement of beet sugar within the state of Idaho, and to provide a bounty for the manufacture of the same, and prescribing the manner of the payment of said bounty, and providing appropriation to carry out the provisions of this act/ approved March 11, 1903. Affiant says that he is informed and verily believes that the bounty on sugar that has already been produced in the state of Idaho, and. which will be produced during the years of 1903 and 1904, from beets grown within the state of Idaho, will amount to a sum of not less than $100,000, and will probably reach the sum of $300,000. That the Idaho Sugar Company, a corporation organized under the laws of Utah, hut doing business in Idaho, has created a large sugar manufactory near Idaho Falls, in' the state of Idaho, and is now manufacturing sugar at the rate of mo-re than one hundred thousand pounds daily, and lias on hand large quantities of beets grown in Idaho, and has' prepared to raise large quantities of beets in Idaho during the year of 1904, and has contracted with divers persons to raise other large quantities of beets in Idaho during the year of 1904. That another large sugar factory is now in process of construction in Fremont county, in this state, and others are projected, one of them to be erected at or near the town of Caldwell in this state, by a corporation already organized, of which Frank Stunenberg is president, and that the general appropriation of one cent per pound for bounty on sugar produced in the state during the year of 1903 and one-half of one cent per pound on sugar produced in the state during the-year of 1904, as promised by said act of Márch 11, 1903, will, if said act be held valid, result in raids upon the treasury of the state of Idaho, as affiant is informed and verily believes, in sums exceeding $200,000. That the appropriations and expenditures made and authorized, or attempted to be made and authorized, by said seventh session of the legislature for the years of 1903 and 1904, will, exclusive of the bond issues authorized and attempted to be authorized by said session, amount to more than the sum of $774,000, and will probably reach a sum greater than $874,000. That in addition to the said specific appropriations above named, and the general appropriation for sugar bounties in an unnamed and unascertained amount, and in addition to the $163,000 bond issue attempted to be authorized by said seventh session, said session authorized, or attempted to authorize, the further issue of the bonds of this state in amounts and for purposes as follows, to wit: Idaho Industrial Eeform School bonds (Acts 1903, pages 17 and 192), $50,000; Idaho Academy building fund bonds (Acts 1903, page 51), $30,000; Albion Normal School building fund bonds (Acts 1903, page 209), $12,000; University of Idaho building fund bonds (Acts 1903, page 433), $43,000; penitentiary building fund bonds (Acts 1903, page 440), $20,-000; for supreme court building at Lewiston (Acts 1903, page 44), $15,000; making a total of bond issues, including the issue authorized or attempted to be authorized by -the act of March 16, 1903, total the sum of $333,000. That the total expenditures which the said seventh session of the legislature assumed to authorize, leaving out the unascertained amount of sugar bounties attempted to be authorized by the act of March 11, 1903, popularly known as the sugar bounty act, amount to the sum of $1,007,829.56, and which, added to the outstanding indebtedness and liabilities of the state at the time of the passage and approval of all of said acts, makes the liabilities of the state assumed to be authorized by the legislature reach the sum of $1,760,439.10, to he increased from one to two hundred thousand dollars by said sugar bounties under said sugar bounty act in violation of the constitution of Idaho, sections 1 and 2, article 8. “The affiant says that he has no other plain, speedy or adequate remedy to obtain the relief herein sought. That unless Speedily restrained and prohibited by orders and process of this honorable court, the said defendants, acting in their respective official capacities, will wrongfully and unlawfully issue, register- and cause to be registered in the state auditor’s office, sold and invested in the school funds of the state further bonds of the state, under the above-mentioned bond acts, whereby • the petitioner and other taxpayers of the state of Idaho will suffer great and irreparable injury, and the good name of the state and its credit will thereby be jeopardized and impaired to the injury and damage of the plaintiff and all of the taxpayers of the state.” The allegations of the first cause of action are made parts of the second, third and fourth causes of action respectively, and in addition thereto the second cause of action alleges the invalidity and unconstitutionality of an act approved February 16, 1903, and entitled “An act to establish the Idaho Industrial Eeform School, etc.” (Sess. Laws 1903, p. 12.) ’ The third cause of action alleges the invalidity and unconstitutionality of an act approved March 16, 1903, entitled “An act providing for issuance of state bonds for the erection and ■equipment of an armory and gymnasium, the equipment of the mechanical and electrical engineering, the equipment of the department of domestic science, and for the provision of a water supply; and providing how such bonds shall be issued and how the proceeds of the sales of such bonds shall be expended.” (Sess. Laws 1903, p. 433.) The fourth cause of action alleges the invalidity and unconstitutionality of an act approved March 11, 1903, entitled “An act to provide for the issuance of state bonds to improve the Idaho State Penitentiary and secure and furnish water for the same.” (Sess. Laws 1903, p. 440.) Upon the filing of this petition the plaintiff was required to give notice to the defendants, and upon the day set for hearing the defendants filed their special demurrer, which is as follows: “Come now the defendants above named and demur -to the affidavits and petition of the plaintiff herein, and for grounds of demurrer allege: “1. That the said petition fails to set forth a cause of action entitling the plaintiff to the relief prayed for in said petition, or to any relief against these defendants, or either of them, acting in their official capacities or otherwise. “2. Defendants demur to the first cause of action set forth in said petition on the ground that said cause of action fails to state facts constituting a cause of action or entitling the plaintiff to the relief prayed for in said petition, or to any relief against the said defendants, or either of them, either acting in their official capacity, as set forth in said cause of action, or otherwise. “3. Defendants further demur to the first cause of action set forth in the said petition for the following reasons, to wit: “a. The said first cause of action fails to show that there will be insufficient funds derived from other sources which, added to the general tax levy for the years 1903 and 1904, will equal all appropriations provided by the legislature for said years, as required by article 11, section 7 of the state constitution; and further, the said cause of action fails to show that there will be no other revenues provided for meeting the appropriations for said years in addition to the tax levy therefor. “b.- The said first cause of action fails to show the outstanding bonded indebtedness of the state, ‘exclusive of the debt of the territory at the date of its admission/ and exclusive of warrant indebtedness to meet which cash revenues from tax levies, or from other sources, have been provided, and further, because the said cause of action fails to show that the limit of indebtedness fixed by section 1, article 8 of the constitution now is, or at any time has been, exceeded. “c. The said first cause of action fails to show what portion, if any, of said outstanding indebtedness, to wit, the sum of $752,619.54 was legally chargeable against the debt limitation contained in section 1, article 8 of the state constitution; and the said cause of action further fails to show that no part of said alleged indebtedness has been paid. “d. Defendants further specially demur to that portion of the first cause of action relating to the construction of ‘a steel bridge across Snake river/ and ‘the construction of a wagon road in the counties of Boise and Idaho/ and the respective acts of the legislature relating thereto, for the reason that the-said cause of action shows that the acts of the legislature relating to said subjects, the titles to which are set forth in said cause of action, are not local or special laws within the inhibition contained in the state constitution with reference to the’ enactment of local and special laws, and for the further reason that the said cause of action fails to show that said acts of the legislature are either local or special within said constitutional inhibition. “e. Defendants further specially demur to that portion of the first cause of action relating to the payment of bounties-upon.sugar produced within the state during the years 1903- and 1904 from beets grown in the state under the provisions-of the act of March 11, 1903, relating thereto, because the said cause of action fails to show that the defendants, or either of them, have either threatened to- issue, or that they intend to. issue and register, or cause to be registered, in the state auditor’s office the bonds of the state for the purpose of paying said bounty provided by-said act, or any part thereof; because the state and plaintiff under the allegations of the petition cannot be injured by the issuance of such bonds, and because the said cause of action shows upon its face that the defendants herein have no control over the investment of the school funds of the, state -either in said bonds or otherwise. “f.. Defendants further demur to said cause of action because the -matters of record therein relating to the bonded indebtedness and the warrant indebtedness of the state are alleged and set forth upon information ■ and belief. “g. Defendants further demur to said cause of action because-the. same is ambiguous, uncertain and unintelligible in this, that it.-.fails--to show upon what ground the said plaintiff petitions forra writ of- mandate herein, and because the said cause of action fails to show that the indebtedness of the state at the time of the filing of the petition exceeded one and one-half per -cent .of the assessed value of the taxable property in the state, :ánd further, defendants demur because two or more causes of action 'have been improperly united in said first cause of action. “h. Defendants further demur to said first cause' of action because this court has no jurisdiction to issue the writ.herein against the said defendants, or either of them. “4. Defendants demur to the second cause of action set forth in said petition on the ground that said cause of action fails to state facts constituting a cause of action, or entitling the plaintiff to the relief prayed for in said petition, or to any relief against the said defendants, or either of them, either acting in their official capacity, as set forth in said cause of action, or otherwise. “5. Defendants further demur to the second cause of ac-tion set forth in the said petition for the following reasons, to wit: “a. It is impossible to determine what portion of the allegations and statements made in the first cause of action or count herein are properly applicable to this cause of action, which said allegations and statements are repeated, reiterated and adopted as part of the said second count or cause of action. “b. The said second cause of action fails to show that there will be insufficient funds derived from other sources, which, added to the general tax levy for the’ years 1903 and 1904, will equal all appropriations provided by the legislature for said years, as required by article 11, section 7 of-the state constitution; and further, the said cause of action fails to show that there will be no other revenues provided for meeting the appropriations for said years in addition to the tax levy therefor. "c. The said second cause of action fails to show the outstanding bonded indebtedness of the state, 'exclusive of the debt of the territory at the date of its admission/ and exclusive of warrant indebtedness, to meet which cash revenues from tax levies, or from other sources, have been provided; and further, because the said second cause of action fails to show that the limit of indebtedness fixed by section 1, article 8 of the constitution now is, or at any time has been, exceeded. “d. The said second cause of action fails to show what portion, if any, of said outstanding indebtedness, to wit, the sum of $752,619.54, was legally chargeable against the debt limitation contained in section 1, article 8 of the state constitution; and the said cause of action further fails to show that no part of said alleged indebtedness has been paid. “e. Said' cause of action fails to show that the defendants, or either of them, have either threatened to issue, register or' cause to be registered, or that they intend to issue, and register and cause to be registered in the state auditor’s office the bonds of the state as provided in the act entitled ‘An act to establish the Idaho Industrial Reform School, etc.,’ and the act amendatory thereof, which said acts are specially referred to in said second cause of action; and further, because the state and thé plaintiff under the allegations contained in said Second cause of action, cannot be injured by the issuance of such bonds, and ■ because the said cause of action shows upon its face that- the defendants herein have no control over the investment of the school funds of the state, - either in said bonds or otherwise. “f. Defendants further demur to said second cause of action because the matter of record therein relating to the bonded indebtedness and the warrant indebtedness of the state are alleged and set forth upon information and belief. “g. Defendants further demur to the third cause of action because this court has no jurisdiction to issue the writ herein against the defendants or either of them. “6. Defendants demur to the third cause of action set forth in said petition on the ground that said cause of action fails to state facts constituting a cause of action, or entitling the plaintiff to the relief prayed for in said petition, or to any relief against the said defendants or either of them, either acting in their official capacity, as set forth in said cause of action, or otherwise. “7. Defendants further demur to the third cause of action set forth in the said petition, for the following reasons, to' wit: “a. It is impossible to determine what portion of the allegations and statements made in the first cause of action or count herein are properly applicable to this cause of action, which said allegations and statements are repeated, reiterated and adopted as part of said third count or cause of action. “b. The said third cause of action fails to show that there will be insufficient funds derived from other sources,' which, added to the general tax levy for the years 1903 and 1904, will equal all appropriations, provided for by the legislature for said years, as required by article 11, section 7 of the state constitution; and further, the said cause of action fails to show that there will be no other revenues provided for meeting the appropriations for said years in addition to the tax levy therefor. “c. The said third cause of action fails to show the outstanding bonded indebtedness of the state, ‘exclusive of the debt of the territory at the date of its admission/' and exclusive of warrant indebtedness, to meet which cash revenues from the tax levies, or from other sources, have been provided; and further, because the said third cause of action fails to show that the limit of indebtedness fixed by section 1, article 8 of the. constitution is now, or at any time has been, exceeded. “d. The said third cause of action fails to show what portion, if any, of said outstanding indebtedness, to wit, the sum of $752,619.54, was legally chargeable against the debt limitation contained in section 1, article 8 of the state constitution; and the said cause of action further fails to show that no part of said alleged indebtedness has been paid. “e. Said cause of action fails to show that the defendants, or either of them, have either threatened to issue, register or cause to be registered, or that they intend to issue, and register and cause to be registered in the state auditor’s office the bonds of the state, as provided in the act of March 16, 1903, the title of which is set forth in said third cause of action; and further, because neither the petitioner .nor the state, under the allegations contained in said third cause of action, can be injured by the issuance of such bonds, and because the said 'cause of action shows upon its face that the defendants herein have no control over the investment of the school funds of the state, either in said bonds or otherwise. “f. Defendants further demur to said third cause of action because the matters of record therein relating to the bonded indebtedness and the warrant indebtedness of the state are alleged and set forth upon information and belief. “gj Defendants further demur to said third cause of action because this court has no jurisdiction to issue the writ herein against the said defendants or either of them. “8. Defendants demur to the fourth cause of action set forth in said petition on the ground that said cause of action fails to state facts constituting a- cause of action, or entitling the plaintiff to the relief prayed for in said petition, or to any relief against the said defendants, or either of them, either acting in their official capacity, as set forth in said cause of action, or otherwise. “9. Defendants further demur to the fourth cause of action set forth in the said petition, for the following reasons, to wit: “a. It is impossible to determine what portion of the allegations and statements made in the first cause of action or count herein are properly applicable to this cause of action, which said allegations and statements are repeated, reiterated and adopted as part of said fourth count or cause of action. “b. The said fourth cause of action fails to show that there will be insufficient funds derived from other sources which, added to the general tax levy for the years 1903 and 1904, will equal all appropriations provided for by the legislature for said years, as required by article 11, section 7 of the state constitution; and further, the said cause of action fails to show that there will be no other revenue provided for meeting the apr propriations for said years in addition to the tax levy therefor. “c. The said fourth cause of action fails to show the outstanding bonded indebtedness of the state, ‘exclusive of the debt of the territory at the date of its admission/ and exclusive of warrant indebtedness, to meet which cash revenues from the tax levies, or from other sources, have been provided; and further, because the said fourth cause of action fails to show that the limit of indebtedness fixed by section 1, article 8 of the constitution is now, or at any time has been, exceeded. “d. That said fourth cause of action fails to show what portion, if any, of said outstanding indebtedness, to wit, the sum of $752,619.54, was legally chargeable against the debt limitation contained in section 1, article 8 of the state constitution; and the said cause of action further fails to show that no part of said alleged indebtedness-has been paid. “e. Said cause of action fails to show that the defendants, or either of them, have either threatened to issue, register or cause to be registered, or that they intend to issue and register and cause to be registered in the state auditor’s office the bonds of the state, as provided in the act of March 11, 1903, the title of which is set forth in said fourth cause of action; and further, because neither the petitioner or the state, under the allegations contained in said fourth cause of action, can be injured by the issuance of such bonds, and because the said cause of action shows upon its face that the defendants herein have no control over the investment of the school funds of the state, either in said bonds or otherwise. “f. Defendants further demur to said fourth cause of action because the matters of record therein relating to the bonded indebtedness and the warrant indebtedness of the state are alleged and set forth upon information and belief. “g. Defendants further demur to said fourth cause of action because this court has no jurisdiction to issue thé writ herein against the said defendants or either of them. • “10. Defendants further demur generally to said petition,, and the whole thereof, because the same is unintelligible and uncertain, in this, that it raises the question of the validity of several legislative acts providing for bond issues, and several legislative acts carrying appropriations, and does not properly set forth the outstanding indebtedness of the state, does not show which particular act providing for said bond issues is in excess of the debt limitation fixed by the constitution, neither does said petition show what particular act carrying an appropriation is in excess of the appropriation limit fixed by section 11, article 7 of the state constitution. “11. Defendants generally demur to said petition, because this court has no jurisdiction to issue the writ of prohibition herein. “Wherefore, defendants pray that plaintiff’s writ may be denied, that the petition herein may be dismissed, and for their costs herein.” Upon the issues thus made the arguments were heard on the part of the respective parties.