The pending bill (HB 456), regarding a public debt, would be constitutional if enacted.

BILLS-CONSTITUTIONALITY OF VINCENNES BILL March 9, 1907. To the Senate of the General Assembly of the State of Indiana: Gentlemen-In answer to your written request for my opinion "as to whether House Bill No. 456, if enacted into a law, would be in violation of any provision of the constitution of Indiana," I beg to advise that I have not considered any extraneous facts with ref- erence to such bill, since I have no authority to decide or express an opinion'with reference thereto. See §7691 Burns' Annotated Indiana Statutes, Revision 1901 (relating to the duties of the attorney-general of In- diana) ; §§354 and 356 U. S. Compiled Statutes 1901 (relating to the duties of the attorney-general of the United States); Vol 1, Opinions of the Attorney-General of the United States, page 346; Vol. 5, Opinions of the Attorney-General of the United States, page 636; Vol. 12, Opinions of the Attorney-General of the United States, page 206; Vol. 13, Am. and Eng. Ency. of Law, page 478. In the preparation of this opinion I have considered only the bill in question and the facts enumerated therein, and the constitu- tion and law of this state as interpreted by me, and express no opinion as to the merit or demerit of this bill, since these are ques- tions for the general assembly and the governor to decide, and, under certain conditions, for the courts. Section 5, article X, of the constitution of the state of Indiana reads as follows: "No law shall authorize any debt to be contracted on be- half of the state, except in the following cases: To meet casual deficits in the revenue, to pay the interest on the state debt, to repel invasion, suppress insurrection, or, if hostili- ties be threatened, provide for the public defense." It is said by the supreme court of this state in the case of Hovey, Governor, et a]. v. Foster, 118 Ind. 502, at page 505, in considering this section of the constitution, that "It is apparent that the purpose with which this pro- vision was framed and adopted was to impose restrictions upon the power of the legislature to authorize debts to be contracted on behalf of the state to an unlimited amount. This is clear from the language employed. It is equally clear, too, that upon the happening of certain contingencies the power of the legislature in respect to certain debts was to remain unfettered." And, again: "It was foreseen that, without gathering from the pock- ets'of the people and carrying a large surplus in the treasury of the state, no human provision could prevent occasional deficits in the revenue. The tax levied could not possibly be adjusted to the necessary expenses of carrying on the state government and providing and maintaining the public buildings and institutions of the state, and for such other appropriations as are clearly within legislative discretion, without an occasional surplus or deficit. "It was therefore contemplated that the deficits would occur, that an enemy might invade, insurrection arise, or hostilities threaten, making provision for the public defense necessary." And, again: "Upon the happening of either of these contingencies the discretion f the legislature in providing the means to meet it was, as necessarily it should have been, left without restriction. In all other respects the power of the legisla- ture to authorize a debt to be contracted on behalf of the state was taken up by the roots." If the courts, in considering the present bill, should come to the conclusion that it is an attempt to create a debt upon the part of the state, and does not merely recognize an existing indebtedness, they would undoubtedly hold the enactment unconstitutional, inas- much as it is apparent that in that event it would not fall within any one of the classes of powers mentioned in article X, section 5, of the constitution. If, on the other hand, the courts of the state should arrive, at the conclusion that this bill simply changes the form of an indebt- edness for which the state is now liable, the above section of the constitution would have no application whatever, as it only refers to the creation and not to the recognition of debts contracted on behalf of the state. In arriving at their conclusion upon the question above sug- gested the courts would not be bound by the recitals or statements contained in the bill itself. While the legislature undoubtedly has broad discretionary powers to determine when a contingency ex- ists, upon the occurrence of which the constitution gives it the power to authorize a debt to be contracted, this discretion is not without limitations and subject to review by the courts. As stated in Hovey, Governor, et al. v. Foster, supra, page 507: "While the power to act does not exist until the contin- gency arises, the legislature must of necessity be left with large discretion in determining whether or not the contin- gency has arisen which calls forth the exercise of the power. When it has in fact arisen, or when, in the exercise of its sound discretion, the legislature without any apparent pur- pose to evade the constitution, determines that it has, and authorizes a debt to be contracted, unless it is apparent at first blush that the conditions did not exist which justified the exercise of the power, the action of that body is not sub- ject to review, or liable to be controlled by the judicial de- partient. " And, again on page 509: "It by no means follows that the power of the legislature is without limit or control in respect to creating or contract- ing debts against the state. As before remarked courts are supposed to take cognizance of the current public history of affairs, and to consider enactments of the general assembly in the light of current history. If, under pretense that an invasion was threatened, or that an insurrection was immi- nent, the legislature should authorize a loan, when it was a known fact to every intelligent person that the assumption was a mere pretense, courts would not hesitate to declare the act void. . So, if it were known that the legislature had authorized or was about to authorize the use of state funds in the construction of a railroad, canal or other public work, or institution, not within the ordinary and legitimate needs of the state, and that a loan was about to be auhorized to meet appropriations made to defray the expense of such a work, under the guise of meeting a deficit to carry on the government of the state, it would be the duty of the courts, when called upon, to take cognizance of the facts, and arrest what they would judicially know to be a mere pretext to evade the constitution." Similarly, the courts may inquire whether a liability actually existed on the part of the state at the time of this enactment, which was capable of recognition by the bill in question. The decision of the legislature upon that question would be no more controlling upon the courts than its decision that a contingency had arisen when a new debt should be contracted, in cases where, at first blush, it was apparent to any reasonable person that such a contingency had not occurred. In ascertaining whether a debt really existed at the time the statute was passed, the courts might resort not only to their judi- cial knowledge, but to extrinsic evidence. The recitals and state- ments of fact and inferences therefrom contained in the title and preamble of the statute, while they might be evidence of the facts therein referred to, would not be conclusive. As held in the case of State v. Beard, . Ind. 460, the recitals contained in the preamble of an act passed for the relief of certain public contractors were admissible evidence respecting the validity of their claim, but were not conclusive upon the tribunal before whom the claim was presented. In that opinion the court state, on page 466: "The recitations in the preamble in this case were admis- sible in evidence, and, uncontradicted or unqualified, may be prima facie evideyce of the truth of the matters recited." At what conclusion the courts would arrive, after considering all the facts relating to the subject-matter of the present bill and the statutes which have already been enacted in this state with reference to this claim, authorizing suits to be brought therefor, and providing for the payment and release in full, it is impossible to anticipate; but, if the court, after an investigation of the facts, should reach the conclusion that no indebtedness existed for which the bond issue provided in this act is authorized, then this act would be unconstitutional and in violation of another section of the constitution. The bill in question, on its face, assumes that there is an exist- ing debt of $120,548, due the board of trustees of the Vincennes University from the state of Indiana, and to issue bonds in payment thereof would only be changing the form of an existing indebted- ness, and assuming, without deciding, that such indebtedness does exist, and considering only the terms of the bill in question, it is my opinion that the same is constitutional.