1 Reported in 226 N.W. 633, 842.
Action to enjoin the state auditor from issuing certificates of indebtedness, as directed by L. 1929, p. 298, c. 258, based on the alleged ground that the act violates art. 9, §§ 1, 5, 6 and 10, of the state constitution. From the order sustaining a demurrer to the complaint, plaintiff appeals.
Plaintiff is a taxpayer and resident of Hennepin county and sues in behalf of other taxpayers of the state similarly situated. The act creates a state wild life preserve and hunting ground of a designated area within Beltrami, Lake of the Woods, and Koochiching counties, and provides for the acquisition therefor of the "unredeemed delinquent lands" therein, for the payment and retirement of the county bonds secured in part by assessments on the lands so acquired, and for the payment of the school and township bonds secured in part by tax levies on said lands, thereby protecting the credit of the state, its political subdivisions and municipal corporations by preventing default in the payment of said bonds. The title of the act is more specific and detailed, but the above indicates the most prominent features of the law which bear on the constitutional questions presented. Attention may also be directed to the fact that in the preamble to the act six reasons motivating its adoption are stated, some of which are greatly stressed by appellant as
indicating that the state tax authorized therein to be levied to pay the certificates of indebtedness defendant is directed to issue is for a private purpose and inhibited by the constitutional provisions he invokes.
Appellant does not controvert, what we take to be settled law, that the legislature has power to appropriate public funds and direct taxes to be levied for the acquisition and maintenance of public parks. Such object is for a public purpose. Shoemaker v. U.S. 147 U.S. 282, 13 S.Ct. 361,37 L.ed. 170. To establish a territory for wild life such as game and fish, so that the inhabitants of the state may therein procure the recreation and profit that regulated hunting and fishing affords, is equally for a well recognized public purpose to say nothing of fostering other natural resources, such as the growth of forests. Moreover, the state has an interest in game and fish, holding the same in its sovereign capacity for the benefit of the people of the state, a public purpose. State v. Rodman, 58 Minn. 393, 59 N.W. 1098; Lipinski v. Gould, 173 Minn. 559, 218 N.W. 123, 730. By acquiring and devoting a suitable habitat for the propagation and preservation of wild life the state is furthering the interest of the public in game, fish, and fur-bearing animals which it holds for the use and benefit of all.
It is not disputed that if the main purpose or object of a state outlay or tax is public, it is no objection that private interests are incidentally served. But appellant contends that the object chiefly sought by this law is to relieve the three counties of their debts. And if this be not so, still that is an avowed object. If this be true the law cannot be sustained, for if an act authorizes a state tax for both a public and private purpose and the two cannot be separated the whole is invalid. Coates v. Campbell, 37 Minn. 498, 35 N.W. 366. Appellant contends that for the state to appropriate money or levy taxes to pay the debts of a county or a municipality must be considered as appropriated or levied for a private purpose, but concedes that no authorities have been found directly in point. However we are of the opinion that, even though it be admitted that one of the objects of the law was to relieve the counties mentioned
of a part of the debt incurred in drainage projects, still the certificates the auditor is required to issue and the state tax authorized to meet them are for a state-wide public purpose.
It is to be remembered that nearly 30 years ago, when the constitutionality of the drainage law was attacked, this court upheld the same on the ground that it was enacted for the public purpose of protecting public health and for the promotion of public welfare. Lien v. Commrs. of Norman County,80 Minn. 58, 82 N.W. 1094; State ex rel. Utick v. Commrs. of Polk County, 87 Minn. 325, 92 N.W. 216, 60 L.R.A. 161. Being for a public purpose the state could have financed or aided in financing such projects; but it cast the whole burden upon the counties wherein the drained lands were situated, the counties to be reimbursed from assessments upon the lands benefited. Counties are certainly no more chargeable with public health, convenience and welfare than the state itself; but nevertheless the state could and did lay the duty upon the counties to issue the bonds needed to finance drainage projects established to promote the public purpose named. Van Pelt v. Bertilrud,117 Minn. 50, 134 N.W. 226; State ex rel. Arpin v. George,123 Minn. 59, 142 N.W. 945. So drainage bonds, from the viewpoint of the state, do not represent the ordinary obligations or debts of the county.
The preamble to the act [L. 1929, c. 258] recites, what perhaps is common knowledge, that the drainage in the counties named failed to bestow the anticipated benefits upon the lands assessed, such lands being found incapable of being used for agricultural purposes. The result was that the owners of a large amount of such lands have defaulted in the payment of such assessments and all taxes. The legislature also recognized the injustice which existed in the drainage law when most of the drainage projects in these counties were put through, in that the taxpayers in the county not owners of land in the drainage district could not be heard to object to such drainage, yet for the bonds issued by the county to finance the project, if there be default, their property must respond to a county tax levy to meet such bonds. It also appeals to us that the state
has such interest in having its governmental agencies preserved and functioning properly that the state can come to their rescue when their peril is imminent.
The counties in question, under statutes perhaps not the most prudent, were compelled to issue drainage bonds to the extent of several millions. Much of the lands assessed for benefits has been bid in by the state for delinquent taxes and remains unredeemed. No further taxes may be hoped for therefrom by either the state or the counties. If taxes sufficient to meet the outstanding drainage bonds are to be levied on the remaining lands and property in the counties, such taxes will be so high as to amount to confiscation and result in so great portion of the taxable lands being abandoned that the counties would be unable to meet these bonds or other current expenses.
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1 Reported in 226 N.W. 633, 842.
Action to enjoin the state auditor from issuing certificates of indebtedness, as directed by L. 1929, p. 298, c. 258, based on the alleged ground that the act violates art. 9, §§ 1, 5, 6 and 10, of the state constitution. From the order sustaining a demurrer to the complaint, plaintiff appeals.
Plaintiff is a taxpayer and resident of Hennepin county and sues in behalf of other taxpayers of the state similarly situated. The act creates a state wild life preserve and hunting ground of a designated area within Beltrami, Lake of the Woods, and Koochiching counties, and provides for the acquisition therefor of the "unredeemed delinquent lands" therein, for the payment and retirement of the county bonds secured in part by assessments on the lands so acquired, and for the payment of the school and township bonds secured in part by tax levies on said lands, thereby protecting the credit of the state, its political subdivisions and municipal corporations by preventing default in the payment of said bonds. The title of the act is more specific and detailed, but the above indicates the most prominent features of the law which bear on the constitutional questions presented. Attention may also be directed to the fact that in the preamble to the act six reasons motivating its adoption are stated, some of which are greatly stressed by appellant as
indicating that the state tax authorized therein to be levied to pay the certificates of indebtedness defendant is directed to issue is for a private purpose and inhibited by the constitutional provisions he invokes.
Appellant does not controvert, what we take to be settled law, that the legislature has power to appropriate public funds and direct taxes to be levied for the acquisition and maintenance of public parks. Such object is for a public purpose. Shoemaker v. U.S. 147 U.S. 282, 13 S.Ct. 361,37 L.ed. 170. To establish a territory for wild life such as game and fish, so that the inhabitants of the state may therein procure the recreation and profit that regulated hunting and fishing affords, is equally for a well recognized public purpose to say nothing of fostering other natural resources, such as the growth of forests. Moreover, the state has an interest in game and fish, holding the same in its sovereign capacity for the benefit of the people of the state, a public purpose. State v. Rodman, 58 Minn. 393, 59 N.W. 1098; Lipinski v. Gould, 173 Minn. 559, 218 N.W. 123, 730. By acquiring and devoting a suitable habitat for the propagation and preservation of wild life the state is furthering the interest of the public in game, fish, and fur-bearing animals which it holds for the use and benefit of all.
It is not disputed that if the main purpose or object of a state outlay or tax is public, it is no objection that private interests are incidentally served. But appellant contends that the object chiefly sought by this law is to relieve the three counties of their debts. And if this be not so, still that is an avowed object. If this be true the law cannot be sustained, for if an act authorizes a state tax for both a public and private purpose and the two cannot be separated the whole is invalid. Coates v. Campbell, 37 Minn. 498, 35 N.W. 366. Appellant contends that for the state to appropriate money or levy taxes to pay the debts of a county or a municipality must be considered as appropriated or levied for a private purpose, but concedes that no authorities have been found directly in point. However we are of the opinion that, even though it be admitted that one of the objects of the law was to relieve the counties mentioned
of a part of the debt incurred in drainage projects, still the certificates the auditor is required to issue and the state tax authorized to meet them are for a state-wide public purpose.
It is to be remembered that nearly 30 years ago, when the constitutionality of the drainage law was attacked, this court upheld the same on the ground that it was enacted for the public purpose of protecting public health and for the promotion of public welfare. Lien v. Commrs. of Norman County,80 Minn. 58, 82 N.W. 1094; State ex rel. Utick v. Commrs. of Polk County, 87 Minn. 325, 92 N.W. 216, 60 L.R.A. 161. Being for a public purpose the state could have financed or aided in financing such projects; but it cast the whole burden upon the counties wherein the drained lands were situated, the counties to be reimbursed from assessments upon the lands benefited. Counties are certainly no more chargeable with public health, convenience and welfare than the state itself; but nevertheless the state could and did lay the duty upon the counties to issue the bonds needed to finance drainage projects established to promote the public purpose named. Van Pelt v. Bertilrud,117 Minn. 50, 134 N.W. 226; State ex rel. Arpin v. George,123 Minn. 59, 142 N.W. 945. So drainage bonds, from the viewpoint of the state, do not represent the ordinary obligations or debts of the county.
The preamble to the act [L. 1929, c. 258] recites, what perhaps is common knowledge, that the drainage in the counties named failed to bestow the anticipated benefits upon the lands assessed, such lands being found incapable of being used for agricultural purposes. The result was that the owners of a large amount of such lands have defaulted in the payment of such assessments and all taxes. The legislature also recognized the injustice which existed in the drainage law when most of the drainage projects in these counties were put through, in that the taxpayers in the county not owners of land in the drainage district could not be heard to object to such drainage, yet for the bonds issued by the county to finance the project, if there be default, their property must respond to a county tax levy to meet such bonds. It also appeals to us that the state
has such interest in having its governmental agencies preserved and functioning properly that the state can come to their rescue when their peril is imminent.
The counties in question, under statutes perhaps not the most prudent, were compelled to issue drainage bonds to the extent of several millions. Much of the lands assessed for benefits has been bid in by the state for delinquent taxes and remains unredeemed. No further taxes may be hoped for therefrom by either the state or the counties. If taxes sufficient to meet the outstanding drainage bonds are to be levied on the remaining lands and property in the counties, such taxes will be so high as to amount to confiscation and result in so great portion of the taxable lands being abandoned that the counties would be unable to meet these bonds or other current expenses. Under this situation it would seem that there is at least a moral obligation for the state to come to the rescue of a governmental agency upon which it ill-advisedly imposed a state burden which through no fault of the agency would spell its financial ruin. It may also be noted that the unredeemed lands appropriated by the state for the preserve were subject to these assessments for the payment of the drainage bonds, and when the state now takes the same for a perpetual public use it would seem equitable and proper that it assume such assessments as the act prescribes; and also that in consideration thereof the county protect the bonds of school districts and townships as therein provided.
That relief to these three counties is a public purpose, justifying the law in question, is supported by such cases as Sacramento S. J. Drainage Dist. v. Riley, 199 Cal. 668,251 P. 207; Kinney v. City of Astoria, 108 Or. 514, 217 P. 840. And as cases where a public purpose sustains a state appropriation and taxation, although individuals are benefited, may be cited Gustafson v. Rhinow, 144 Minn. 415, 175 N.W. 903; Hagler v. Small, 307 Ill. 460, 138 N.E. 849.
While under Van Pelt v. Bertilrud, 117 Minn. 50,134 N.W. 226, and State ex rel. Arpin v. George, 123 Minn. 59,142 N.W. 945, drainage bonds as to the holders thereof are the debts of the counties issuing them, the considerations above stated place a different
view of responsibilities as between the state and the county — the state's agent in the premises. We therefore do not think the act is inhibited by art. 9, § 10, of the state constitution, which prohibits the lending of the credit of the state in aid of any individual, association or corporation.
It is also urged that c. 258 must fall because of L. 1929, p. 595, c. 415, enacted and approved eight days later. The proposition is a novel one. The later act does not purport to modify or amend the prior one as to object, scope, purpose or procedure. The only language that affects the established preserve is this inserted in amending G. S. 1923, § 2139:
"Provided, the minimum amounts of ditch liens or assessments to be so included in the sale of lands within the Red Lake Game Preserve shall be the full amounts of such ditch liens and assessments."
It is plain that if a public purpose is the object of the state tax authorized to meet the certificates respondent is directed to issue, the act creating the preserve must stand, no matter what happens to the proviso quoted from the subsequent enactment.
We do not deem a further discussion of the constitutional objections to the act needed. Inequalities in taxation, depending upon whether land in the same drainage district is within or without the preserve created by the act, cannot affect constitutionality, even if there be discrimination between such lands. It is also doubtful whether plaintiff, who does not show that the supposed discrimination affects him, may urge unconstitutionality on that ground. 6 Dunnell, Minn. Dig. (2 ed.) § 8935. Before a court is justified in declaring a statute void because in contravention of constitutional provisions it must be palpably so. In other words, unless a law is unconstitutional beyond a reasonable doubt it must be sustained. 6 Dunnell, Minn. Dig. (2 ed.) § 8931, and authorities cited in note 52 thereof.
In our opinion L. 1929, p. 298, c. 258, does not offend any provision of our constitution under the principles by which courts are guided.
The order is affirmed.
AFTER REARGUMENT.
On September 27, 1929, the following opinion was filed: