(dissenting).
I dissent.
Section 1, c. 27, p. 29, Laws 1909, authorizes and directs the state board of control to complete the construction of the new state prison at Stillwater at a cost not exceeding $2,250,000.
Section 2 reads: “To provide the funds necessary for what is authorized in section one (1) of this act, the state auditor is hereby authorized and directed to levy and collect, in the same manner as other *14state taxes are levied and collected, for tbe year 1909 and for each and every of the next succeeding nine (9) years, two hundred and twenty-five thousand ($225,000) dollars, and the interest thereon, and a tax levy sufficient to produce, for each of said years, that amount of money shall be levied on all of the taxable property of this state, and credited to the board of control of state institutions in a separate fund for said purposes to be known as the 'Prison Building Fund/ and said amounts are hereby appropriated for the purposes aforesaid for each of said years, and pending the said levy and collection of the said taxes, the said board of control is hereby authorized and empowered, if said board of control deems it necessary or desirable so to do, to issue and sell, as funds are needed for construction purposes, certificates of indebtedness to be known arid classed as Minnesota Prison Certificates of Indebtedness, at not less than par value thereof, earning interest after the issuance and sale thereof, payable annually, at a.rate not greater than four (4) per cent, per annum, in such form and upon such terms and conditions as the said board of control may determine, in an aggregate amount not exceeding the amount herein authorized and directed to be raised by taxation; provided, that said certificates shall be issued in denominations of not less than five hundred ($500) dollars, and provided, that the first right of investment therein is reserved to this state, and provided, that such of said certificates as are not purchased by this state, shall, in such way and manner as said board of control may deem best, be offered to the general public for investment.”
Section 3 requires that the completion of the construction of the prison be done as expeditiously as possible, and under contract duly made and entered into with competent and responsible contractors and builders, who are lowest bidders therefor.
In pursuance of this act, during the month of April, 1909, the state board of control advertised for proposals fpr the purchase of Minnesota state prison certificates of indebtedness to the amount of $550,000 in denominations of $500 each, to be dated June 1, 1909, and payable as follows: $225,000 August 1, 1913; $225,000 August 1, 1914; and $110,000 August 1, 1915. At the same time the board made it known that it would receive bids for the purchase of Minne*15sota state prison certificates of indebtedness aggregating $1,575,000, to be issued from time to .time in sucb amounts as might be required for construction purposes,, covering a period of not less than three nor more than four years, payable at the rate of $225,000 per annum, exclusive of interest, beginning 4-Ugust 1, 1913. The Capital National Bank of St. Paul having offered par and accrued interest for the $560,000 Minnesota state, prison certificates above mentioned, this restraining action was commenced against the board in order to secure the sanction of the court to the validity of the act.
I am' decidedly of the opinion that chapter 27, p. 29, Laws 1909, is in conflict with sections 2, 5, 6, 7, and 8 of article 9 of the state constitution. The act authorizes and directs the state auditor to levy and collect annually as other taxes are levied and collected, for nine years commencing with the year 1909, $225,000 and interest thereon. This tax is to be levied upon all the taxable property of the state and credited to the board of control in a separate fund known as the “Prison Building Fund.” The majority of the court base their opinion on the decision in Fleckten v. Lamberton, 69 Minn. 187, 72 N. W. 65, and it becomes important to determine exactly what was decided in that case.
The court there had under consideration the constitutionality of chapter 2, p. 6, Laws 1893, the material part of which,.page 8, reads:
“There shall be transferred in each of the years 1893 and 1894 from the general fund to the credit of the board of state capitel commissioners the sum of five thousand dollars, and in each succeeding year after the year 1894 until the completion .of said capítol building, not exceeding ten years, a sum equal to the proceeds of a levy of two-tenths of a mill upon the assessed valuation of the state, for the purchase of a site, or part thereof, and the erection and completion of a new capítol building, in accordance with the terms and provisions of this act; provided, that the total amount so transferred shall not exceed the sum of two million dollars.”
The court held that the appropriations provided by the act were from the surplus revenue in the state treasury and from such surplus as might exist during each of the future years named; that the constitutional provisions did not prevent the application of the surplus to such a purpose so long as such appropriations did not *16infringe upon the amount available for the ordinary current affairs of the government. The court held that the legislature might appropriate the prospective surplus in the treasury for a given number of years for the purpose of building a state capitol; but it was not held that the legislature might incumber the future taxable property of the state by a compulsory future levy. Observe the reading of the act of 1893. It transferred from the general fund to the credit of the state capitol commissioners a sum equal to the proceeds of a levy of two-tenths of a mill, provided that amount of surplus be in the general fund. The appropriation was predicated upon the presumption that a surplus sufficient would exist when the time arrived, but made no provision to create the surplus. So considered, there was no present debt incurred, and no mortgaging of the future assets of the state.
Chapter 27, p. 29, Laws 1909, was constructed upon an entirely different principle. It does not appropriate from the general fund such surplus as may be found when the time arrives, but imposes on the state auditor the duty to make a levy upon the taxable property of the state for the specific purpose of creating a fund which shall be set aside to the credit of the state board of control for the erection of the prison. In Fleckten v. Lamberton the court was dealing with no such proposition. The gist of that decision is contained in the syllabus, and is as follows: “The constitution does not prohibit the legislature from appropriating the surplus revenues in the state treasury, or a part of the revenues collected each year, for the erection of a state capítol, so long as sufficient public funds applicable thereto are left to defray the current ordinary expenses of the state government. '*• * *»
Referring in the opinion to the constitutional provisions, the court (page 190) says: “The object is to prevent the legislature from mortgaging the future at all for ordinary expenses, and to prevent it from mortgaging the future for extraordinary expenses, except to a limited extent, and in a restricted manner.” The constitutionality of the act of 1893 was attacked by the plaintiff in that- case on the ground that the building of a new state capitol was in all respects an extraordinary expenditure and could only be provided for by the issue *17of bonds. In reply to this proposition the attorney general claimed that the act did not violate any of the provisions of the constitution, because the building of a state capítol must be considered as part of the ordinary current expenses of the government, and the act dealt only with funds in the state treasury belonging to the'general revenues. From the argument of counsel and from the carefully guarded language of the court in that decision, it is clear that the court did not consider and did not hold that under the constitution the legislature had authority to compel the levy of a tax during future years.
I concede that the power of the legislature is not limited by the constitution in the amount of money it-may authorize for the running of the government; but it cannot tie the hands of succeeding legislatures. If the building of a new prison was deemed necessary to the proper administration of the government, the legislature had authority under the constitution to provide the whole or any part of the necessary funds in the annual statement of taxes until the next legislature convened; and, if the members of that body were of opinion that the whole amount required was too great a burden to be immediately borne by the taxable property, they were at liberty to build so far as they deemed wise. The unmistakable meaning of the constitution is that the state must pay as it goes, and when the call for money is so heavy or extraordinary as to make it inadvisable to raise the entire amount by an immediate levy then the taxable property of the future can be burdened in one way only, and that by the issue of. bonds not to exceed $250,000. By placing its seal -of- approval upon chapter 27, p. 29, Laws 1909, the state auditor is directed to collect from the taxable property of the state the sum of $225,000 annually for the period of nine years, and he must perform his duty. The debt has already been incurred and the taxpayers may now look forward with positive assurance that the debt must be paid.
Further, the present case differs from Fleckten v. Lamberton in this: The act of 1893 did not provide for the issuance'and sale of certificates of indebtedness, and the effect of such an issue and the sale thereof were not considered; whereas, in this case, that additional question is directly involved. A majority of the court hold that the certificates do not create obligations of the state independent of *18the fund provided by the act, and that the holder thereof merely has the right to receive his money upon maturity out of the special funds when collected and received by the state treasurer. I am unable to perceive the distinction. To my mind, the certificates constitute obligations of the state, whether general obligations or limited to the special fund. In either event, the debt must be paid by the taxable property of the state.
Again, assuming that the legislature may direct the future levy of .a tax to raise a special fund, to be available at the time the money is collected, the majority hold that the legislature may provide for the present capitalization of such future conditions by issuing certificates of indebtedness to draw interest to be sold to the public upon the assurance that the credit of the state is behind them, and that the money will be forthcoming when the certificates mature. . By this arrangement the entire amount of the tax levy is anticipated, and the amount is available for present purposes. Thus the evidence of a present indebtedness is furnished which may be received with confidence in the commercial world.
The constitution places the limit at $250,000, above which no debt shall be incurred for future taxpayers to meet. The amount may be too small for a great and growing state; but the people so provided,, and there is a proper way to change it. In my opinion, chapter 27, p. 29, Laws 1909, opens wide the door and renders the constitution meaningless.