I am unable to agree with the views expressed by my associates. In my opinion, Chapter 126, Laws of 1929, is not unconstitutional.
That the Act specifies but a single purpose is settled by prior decisions of this court. In the case of State ex rel.Bonner *Page 276 v. Dixon, 59 Mont. 58, 195 P. 841, 847, the court had before it for consideration Initiative Measure No. 19, passed by the people in November, 1920, which provided for the construction and equipment of buildings at the four state institutions of higher education, together with the State Orphans' Home, School of Deaf and Blind, Industrial School, and Vocation School for Girls, all located in different parts of the state, and the same objection was raised to that measure as here. After a careful consideration of the question, the court determined that the law specified but a single purpose. While it is true that reference was made to the fact that all of the institutions enumerated in that Act were under the supervision of the state board of education, as I read the decision, that was not the controlling factor, for it is said: "In the title of the Act in question there is but one subject namely, the issuance and sale of bonds by the state for buildings and betterments of certain state institutions. The objection is without merit."
In State ex rel. Campbell v. Stewart, 54 Mont. 504, Ann. Cas. 1918D, 1101, 171 P. 755, 756, it was held that an Act authorizing the state to borrow money "for the purpose of encouraging, aiding and assisting those engaged in agricultural pursuits, in procuring seed, in planting, sowing, raising and harvesting crops, and in procuring labor and assistance necessary for such purposes, for the purpose of encouraging, aiding and assisting farmers and stock growers in procuring live stock and for feed for the same, and in raising live stock, and in procuring labor and assistance necessary for such purposes, and for the purpose of transporting and aiding and assisting in the transportation and marketing of crops and live stock, * * * and for all other purposes public exigencies may require for the support, aid and assistance of the United States in carrying on and prosecution of such war," and for repelling invasion and suppressing insurrection, did not transgress the constitutional provision relating to a single purpose. *Page 277
In Arps and Cottle v. State Highway Com., ante, p. 152, we held that Chapter 95, Laws of 1931 (State Highway Debenture Law), which authorized the issuance and sale of state highway debentures "for the purpose of assuring the ability of the state to secure any funds or moneys allocated and made available to it by the Acts of Congress in reference to the construction, betterment, and maintenance of highways, and to provide additional working funds for the state highway commission" of the state of Montana in reference to the roads and highways of the state, specified but a single purpose.
"The rule of interpretation now quite generally adopted is that, if all parts of the statute have a natural connection and can reasonably be said to relate, directly or indirectly, to one general and legitimate subject of legislation, the Act is not open to the charge that it violates this constitutional provision; and this is true, no matter how extensively or minutely it deals with the details looking to the accomplishment of the main legislative purpose." (Evers v. Hudson, 36 Mont. 135,92 P. 462, 465.)
Here all parts of the Act under consideration have a natural connection, and reasonably relate "to one general and legitimate subject of legislation," namely, "the construction, repair, and equipment of necessary buildings, other permanent improvements, and the acquisition of necessary grounds therefor" at the state institutions enumerated.
The provision of section 7 of Chapter 126, supra, that "there shall be levied annually upon all property in the State of Montana subject to taxation an ad valorem tax upon each dollar of the assessed valuation of such property sufficient to pay the interest accruing on said bonds, * * * to provide an adequate sinking fund for their redemption," fills the full purpose of section 2, Article XIII of our Constitution. "The phrase, `There shall be levied annually,' etc., is the phrase commonly employed in Acts which do `provide for the levy of a tax.'" (State exrel. Lyman v. Stewart, 58 Mont. 1, 190 P. 129, 132.) "When the legislature declares that a tax `shall be levied,' the direct sense of the terms imports a command *Page 278 rather than a promise, if it is possible for these words to operate effectually as a command. * * * These words are capable of full efficacy as a command, inasmuch as the standing tax laws afford all the means requisite to enable the tax to be completed as an administrative act. They must, therefore, be construed as commanding such acts, as, under the standing tax laws, are requisite for the imposition and enforcement of the tax in question. * * * The declaration of the fact that a tax was levied sufficient to pay interest estops and precludes the denial of such fact as effectually as if the statute was cast in the form of a command, so that an executive officer who should refuse to perform a duty dependent on the fact thus declared would be compelled to contradict the express declaration of the statute in order to excuse his want of due compliance. This cannot be. * * * If the language in question may be read as intending nothing beyond a mere declaration of an intent on the part of the legislature to provide at some future time or times, by suitable enactments, for the levying of an annual tax to pay interest, and as communicating no authority that would warrant the executive officers in proceeding to make the imposition of the tax effectual, then it might with propriety be said that that which the Constitution intended had not been accomplished by the legislature. Comparing this language with the Constitution, it becomes clear that the legislature could have no motive to depart from the requirements of the Constitution such as a court of justice would be at liberty to impute to that body. To say that they intended non-conformity to the Constitution would be to charge dishonesty of motive, when the necessary bearing of such action on the rights of the bondholder is considered. We cannot admit such an assumption in the construction of this language. The primary and ordinary sense of the words used imports a command of something to be done, which is fully understood when we look into the standing tax laws." (Morton-Bliss Co. v.Comptroller, 4 S.C. 430. See, also, Link v. Karb, 89 Ohio St. 326,104 N.E. 632.) *Page 279
The fact that the rate of levy is not specified is not fatal to the Act. It does provide a maximum, i.e., a rate sufficient to pay interest and to provide an adequate sinking fund, and this is the express mandate of the Constitution.
A careful reading of the case of State ex rel. Lyman v.Stewart, supra, demonstrates beyond doubt that this question has been determined adversely to the views expressed by the court here. In that case the constitutionality of Chapter 150, Laws of 1917, was questioned upon the identical grounds with those here considered. That Act authorized the establishment of a terminal elevator, and the issuance and sale of state bonds to pay the cost thereof. Section 4 provided that the net proceeds received from the storage of grain in the elevator should be turned into the state treasury, to the credit of a fund designated "Terminal Elevator Fund," and should be used exclusively for the payment of principal and interest on the bonds issued, and, if the money so paid into such fund "is not sufficient to pay the semi-annual interest on the bonds and the redemption thereof, then and in that event there shall be levied annually not exceeding one-half (1/2) of a mill on the dollar * * * which said tax when collected by the county treasurer shall be accounted for and paid over to the state treasurer to be by the state treasurer held in the `Terminal Elevator Fund,' which fund shall be used exclusively for the payment of the interest on such bonds and for the redemption thereof."
Upon comparison of Chapter 150, supra, and Chapter 126, supra, it is apparent that the exact rate of levy in either case is uncertain, if we speak as of the date of the enactment of the laws. Under section 4, quoted above, and approved by this court, it is not known what millage up to one-half of a mill would actually be required or fixed from year to year; under Chapter 126, supra, it was not possible to determine the dates when the institutional bonds would be actually issued, and the rate could not be fixed with any degree of certainty, and therefore it was not known when the two Acts were passed what rate would be required to produce a sum sufficient to *Page 280 pay the interest and discharge the bonds within the time fixed by the Acts. Any rate which would not produce that amount would fall short of the constitutional requirement.
Under the plan provided for by Chapter 126, which finds approval in the Bonner Case, the bonds are to be issued and sold as the needs of the state institutions demand. How could the legislature determine, not knowing when the bonds would be issued, the taxable value of the property in the state at the time of issuance, or the rate of interest at which the money could be borrowed, and fix a definite rate of levy?
Clearly, the provisions of section 7, supra, are more certain than those of section 4, supra, and the rate of levy may be more readily determined under section 7 than under the provisions of section 4, supra. The case of State ex rel. Bennett v. StateBoard of Examiners, 40 Mont. 59, 104 P. 1055, cited in the court's opinion, is not in point here. In that case the law in effect authorized the state board to determine the amount of revenue to be raised, and the court correctly held that the power to levy a tax could not be delegated to that board, while here the Act levies the tax and the determination of the rate is a clerical act to be performed by an administrative board. When read in the light of the questions under consideration, theBennett Case does not in any manner conflict with the views I have expressed.
Nor does the fact that the legislature of 1931 levied a tax to pay the interest on the bonds authorized to be issued under Chapter 186, Laws of 1931, indicate that the legislature interpreted Chapter 126 as not levying a tax. My investigation discloses that in each and every instance where an Act authorizing the issuance of state bonds fixes a definite tax levy, each subsequent legislature has by separate Act levied the tax authorized by such Act. For example, Initiative Measure 19, supra, expressly levied an annual tax of ten-twelfths of a mill; yet each legislature since the passage of the Act has annually levied the tax. So, with reference to the levy by the legislature of 1931, that body only adopted the practice followed by prior legislatures. *Page 281
Chapter 126 does not transgress any constitutional provision; it provides for the levy of a tax sufficient to pay the interest upon and retire the bonds; the determination of the rate of levy is a clerical function to be performed by the state board of equalization (sec. 2149, Rev. Codes 1921), and that board could be compelled to perform its duty by mandamus. This section does not attempt to confer power of levying a tax upon the board of equalization, and is constitutional. (Houghton v. Austin,47 Cal. 646; San Francisco N.P.R.R. Co. v. State Board,60 Cal. 12.)