The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1889-05-01
THAT LOAN BILL STANDS.
THE sUPREME COURT HoLDsIT GOOD
The Eastern Banks win Probably Ac-
cept the Loan and Work the State
Institutions Will BE Rapidly Pushed
FOrward-The Decision.
DAILY Sentinel Of Anil 211

DAILY Sentinel Of April 27.l
There was Joy in the state house yesterday
afternoon, and ii was of kind that will be last
ing. The occasion was the decision by the state
supreme court, sustaining the constitutionality
OF the act by which the loan of Sl070OOO was
authorized. The opinion was rather a surprise
TO some, who had relied upon the earnestness
and logic of the Hon. John NJ. Butler in OPP
posing the bill ION constitutional grounds the
more especially as his action had received the
sanction of his law partner, ex-senator McDon-
aid. However, Atty.-Gen Kitchener and others
insisted that the law would be sustained, and
the now penniless state be placed in position
where she could lay her hands on the hundreds
OF thousands of dollars waiting for her in the
banks OF New York. The opinion was handed
down yesterday by the supreme court all of
the judges uniting in pronouncing the loan act
constitutiOually sound. The opinion, which is
not long one, was written by Judge Mitchell.
The PRINCIPAL portions of it are as follows:
The question presented involves the constitution
ally and validity OF the act OF the general assembly
under which the loan TO be made. Upon the
SUBJECT OF creating debt the constitution saws:
No law shall authorize any debt 10 be contracted on
behalf OF the state except tn casual deficits in
the revenue to pay the interest on the state debt
70 repe invasion, suppress instruction, ii hos
IL IS apparent that the purpose with which this
provision was framed and adopted to impose re-
stretions upon the power Of the legislature n
authorize debts TO be contracted behalf OF the
state, TO an unlimited amount This is clear from
the language employed. II is equally clear too, that
upon the happening of certain contingencies the
power OF the Legislature in respect creating debts
was TO remain uniettered. On the hand the
evils OF an enormous public debt, the ega of the
system oil public Improvements in which the state
had theret OfOre embarked fresh in the minds Of
t1e people when the present constitution was
adopted. This was the mischief that not 10 be
repeated On the other hand IL was fOreseen that
without gathering from the pockets of the people
and carrying large surplus in the treasury Of the
state no human provision could prevent occasional
deficits in the revenues. The tax levy could not pos
ST ~ be adjusted TO the necessary expenses OF
carrying on the state government and OF providing
tons of the state and for uch other appropriations
clearly within legislative discretion without
an occasional surplus or deficit. 1t was, therefore,
contemplated that deficits would occur. public
debt existed at the time and interest
thereon would mature. Upon the happen
ing of either OF these contingencies the discretion
OF the legislature in providing the means to meet it.
was, as necessarily il should have en-, left without
restriction. In all other respects the power Of the
legislature to authorize debt taken up by the
roots. In order to Justify the exercise Of legislative
discretion in the enactment OF a law such e. the one
In question. there must have been deficit in the
revenues required 10 meet the ordinary apprOpria
lions made Tor the purpose Of carrying the gov
eminent and OF providing for the general welfare
the state and its institutions. The deficit must have
been caused. in the that il have been
designedly brought about. by making extraordinary
appropriations for purposes other than those above
named, with view to eyade the constitutional inh
biion ana to authorize the contracting OF a debt
behalf of the state disregard OF its 1t
have resulted from those casual or occasional dis
crepancies between the revenues received and the
amount required 10 provide for the general welfare,
and to carry on the state government in the ordinary
way, which could not b performed and provided
for without the accumulation OF an unneces airy sur
plus in the treasury.
Words. in a constitutional provision, which were
4 III he legfSl afr tn
contract debts in behalf OF the state. in order TO
vide for the safety and general welfare of the people,
while they TO be construed strictly granting
nothing outside OF the contingencies enumerated
upon which the exercise # the power depends are
not 10 receive that limited aud restricted interpre
ton and meaning which they would have in penal
statute, or in an authority conferred by law, by
contracts up0n trustees OF agents for private pur-
poses Legal tender case 10. u :. 42i-444l While
the power TO act does not exist until the contingency
arises the legislature must Of necessity be left with
large discretion in determining whether or not the
contingency has arisen which calls forth the exercise
OF the power When il has in fact arisen, when
in the exercise Of its sound discretion the legislature
without any apparent purpose TO evade the constitu
ton, determines that it has, and authorizes debt 20
be contracted unless il is apparent at first hush
that the conditions did not exist which qualified the
exercise OF the power the action of that body is not
subject to review or liable TO be controlled by the
judicial department. Franklin Us. state board, %
Cal, l13.
ing power somewhere. Wherever il may be lodged
il is liable TO be abused, 10 be imprOvidenty
10 dec de on the constitutonaity OF every law that
may be passed, nevertheless recognize the rule
well settled which declares that when an act is
passed In the exercise of power or duty expressly
committed 10 the legislature. when the validity OF
which must have existed antecedent 10 tho law an
that do is to inspect the act and determine
from its tenor aud the concurrent history Of which
they take judicial notice, whether not it is within
the power conferred, assuming that the requisite
facts were ascertained. The power OF obtaining in
formation for the purpose OF framing laws 70 meet
existing apprehended contingencies is within the
legitimate province OF legislative body and TO that
end il may summon witnesses and hear testimony in
proper cases. People VS.. keeber 90 n. \. 49,
kribbOnd vs.. Thompson, 1O3 Z. ;. los
Courts cannot make issue of fact, review the
fact as such upon which the legislature must be pre-
sumed 10 have passed in order to determine the
validity of the acts of the legislature. People
n. Y. Cent r. r. Co., 81 Barb, l23-iSS. Tucker
Setter. w. Va, II. State vs.. NOyes, a. Ne, 1s9
Cass To. VS.. Dillon Is Ohio, 3S-il.l
All matters of public policy Of political concern,
or which affect the general welfare OF the people,
Subjects relating 70 taxation and the revenues are
peculiarly OF that character. ''What is for public
good. and what are public purposes and what does
constitute public burden, questions which the
legislature must decide upon its judgment and in
spect TO which it is vested with large discretion,
which cannot be controlled bv the courts except
perhaps when its action is clearly evasve, and when
under the pretenSe of lawful authority il has as
sumed TO exercise one that is unlawful" Cooley
Court Simp., 1856 Huek vs. Bri yht, 10 Ind 279 City
of Cincinnati vs.. Walker 1T. Ohio, Il. leopold vs.
Town OF Rensselaer,, l06 Ind g.
II by no means follows that the power OF the leg
isature is without limit control in respect
ating OF contracting debts against the state As be-
fore remarked courts supposed 10 take cognzaBee
OF the public history of affairs and 20
strue enactments OF the general assembly in the light
Of concurrent history. IL under pr, tense that an
invasion was threatened or that an instruction
imminent, the Legislature should authorize a loan
when it was known fact 10 every
intelligent person that the assumption
mere preiense courts would not hesitate 70 declare
the act void So iii known that the legislature
had about to authorize the of state funds
in the construction of railroad. canal other pub
lie work or institution, not within the ordinary OF
legitimate needs of the state and that a loan was
about be authorized to meet appropriations made
to defTay the expens of such work,
under the guise OF meeting deficit 10
carry on the government OF the state, II would he
the duty of the courts when called upon, 10 take
cognizance of the facts and arrest what they would
iudicially know to be mere pretext 70 eyade the