Bacus v. Lake County

• Decision Date: 12 August 1960
• Docket Number: No. 10115,10115
• Citation: 138 Mont. 69,354 P.2d 1056
• Parties: J. L. BACUS, Plaintiff and Appellant, v. LAKE COUNTY, a Quasi-Municipal Corporation of the State of Montana, Harold Guinn, Ralph Maxwell, and H. M. Hendrickson, County Commissioners of said Lake County, Defendants and Respondents.
• Court: Montana Supreme Court

Page 1056

354 P.2d 1056

138 Mont. 69

J. L. BACUS, Plaintiff and Appellant, v. LAKE COUNTY, a Quasi-Municipal Corporation of the State of Montana, Harold Guinn, Ralph Maxwell, and H. M Hendrickson, County Commissioners of said Lake County, Defendants and Respondents.

No. 10115.

Supreme Court of Montana.

Submitted May 5, 1960.

Decided Aug. 12, 1960.

Hamman & Gottwig, Polson, John D. French, Ronan, for appellant. F. N. Hamman, Polson, argued orally.

J. A. Turnage, County Atty., Polson, argued orally for respondent.

CASTLES, Justice.

This is an appeal from a judgment in favor of the defendants dismissing the action by plaintiff entered by the district court of the fourth judicial district in an action brought to test the constitutionality of R.C.M.1947, Secs. 69-801 to 69-814, which sections generally provide for the creation and management of health districts.

This case was submitted to the district court on an agreed statement of facts. The plaintiff is a resident and taxpayer of the State of Montana and Lake County. He is a member of the Lake County Taxpayers' Organization and brings this action in his own behalf and also on behalf of the Taxpayers' Organization and all other taxpayers who may be similarly interested. The defendant, Lake County, is a quasimunicipal corporation, and political subdivision of the State of Montana. The other defendants who have been joined in this action are Harold Guinn, Ralph Maxwell, and H. M. Hendrickson who were, at the time of the creation of Public Health District No. II, the duly elected and qualified county commissioners of Lake County. Briefly stated, Lake County in the year 1953, by its county commissioners, duly and regularly, pursuant to the provisions of R.C.M.1947, Secs. 69-801 to 69-814, joined with Sanders County in the creation of Public Health District No. II, and thereafter imposed and levied a tax upon all taxable property within Lake County for the purpose of appropriating funds with which to maintain and operate said Lake County's share of expense incurred in the operation of Public Health District No. II. These tax moneys were levied as a portion of and appropriated from the general fund of Lake County, Montana. The Board of County Commissioners of Lake County has for every fiscal year subsequent to April 23, 1953, so levied and appropriated tax funds for the operation of Public Health District No. II, and has levied and appropriated such tax funds for the fiscal year July 1, 1959, to July 30, 1960.

Plaintiff will hereinafter be referred to as appellant. The appellant's specifications of error resolve themselves into three main questions for our consideration on this appeal. These questions will be considered separately.

The first question is whether sections 69-801 to 69-814 allow the creation of a quasi-political subdivision of the State of Montana, comprising two counties, without control of the county commissioners of one or either of the counties, without the vote or approval of the taxpayers of either or both of the counties, in violation of the Montana Constitution, Art. XVI, Secs. 1 and 8.

R.C.M.1947, Sec. 69-805, provides, in essence, for the creation of health districts which may be composed of two counties or more, including municipalities, and in order to finance the same the counties and municipalities may pool their resources. There is no provision for a vote of the electors to create such health districts.

R.C.M.1947, Sec. 69-806, provides for the creation of a board for the administration of these health districts. Appellant contends that these statutory provisions violate the Montana Constitution , Art. XVI, Secs. 1 and 8.

The Montana Constitution, Art. XVI, Sec. 1, provides:

'The several counties of the territory of Montana, as they shall exist at the time of the admission of the state into the Union, are hereby declared to be the counties of the state until otherwise established or changed by law.'

The Montana Constitution, Art. XVI, Sec. 8, provides:

'Any county or counties in existence on the first day of January, 1935, under the laws of the state of Montana or which may thereafter be created or established thereunder shall not be abandoned, abolished and/or consolidated either in whole or in part or at all with any other county or counties except by a majority vote of the duly qualified electors in each county proposed to be abandoned, abolished and/or consolidated with any other county or counties expressed at a general or special election held under the laws of said state.'

Appellant contends that these constitutional provisions are violated by combining the governmental functions of one county with another county in the creation of a health district comprising both of the counties, without a vote of the electors of both of the counties. Appellant further contends that this is the creation of a quasi-political subdivision of the state which is not authorized by the Montana Constitution.

This argument is without merit. A county or district board of health cannot be classified or termed a political subdivision of the state. At most it could only be defined as a department of the state or as an agency of the executive branch of the state government. This provision for health districts embracing more than one county does allow the creation of new political subdivisions of the State of Montana, but is only a provision providing for an effective method of cooperation among the counties of Montana with respect to health problems. However, the counties themselves are still the political subdivisions of the State of Montana which have entered into this cooperative measure.

The second question is whether sections 69-801 to 69-814, supra, violate the Montana Constitution, Art. III, Sec. 24, or the United States Constitution, amend. XIV, Sec. 1, in that there is a taking of property without due process of law. It should here be noted, as stipulated by counsel for both the plaintiff and the defendant, that nowhere in section 69-801 to 69-814 is there a requirement or authorization for notice of the creation or intention to create the health districts or for notice of the assessment of tax for the operation of said districts.

The Montana Constitution, Art. III, Sec. 27, provides:

'No person shall be deprived of life, liberty, or property without due process of law.'

The United States Constitution, amend. XIV, Sec. 1, provides, in part:

'* * * nor shall any state deprive any person of life, liberty, or property, without due process of law'.

Appellant contends that the statute in question violates these provisions of the State and Federal Constitutions citing as authority Creat Northern Ry. Co. v. Roosevelt County, 134 Mont. 355, 332 P.2d 501.

The Great Northern case, supra, had under consideration R.C.M.1947, Sec. 11-2008, relating to the creation of fire districts wherein it was provided that 'At the time of the annual levy of taxes the board of county commissioners may levy a special tax upon all property within such districts for the purpose of buying and maintaining fire protection facilities and apparatus for such districts, or for the purpose of paying to a city or town the consideration provided for in any contract with the council of such city or town for the extension of fire protection service to property within such district, and such tax must be collected as are other taxes.' Emphasis supplied.

The case held that this provision was unconstitutional since it granted the county commissioners the power to levy a special tax without notice to the taxpayers and thus deprived the taxpayers of their property without due process of law in violation of both the State and Federal Constitutions.

The statute which has been subjected to a similar constitutional attack in the case at bar is section 69-812, which provides:

'The county or district boards of health shall submit to the tax levying authorties an annual budget, at least two weeks prior to the dates specified by law for setting up official budgets. Funds for operation of full-time health departments shall be derived from the general fund of participating agencies, provided, however, if the general fund is insufficient to meet the approved budget, a levy, not to exceed one (1) mill, may be made on the assessed valuation in addition to all other taxes allowed by law to be levied on such property.'

We conclude that this statute is dissimilar to the statute which was in question in the Great Northern case, supra, and is not unconstitutional as being a deprivation of property without due process of law.

This court has recognized the difference between general taxes and special taxes in the Great Northern case, supra. The two types of taxes have been differentiated as follows: "General' taxes are those imposed throughout the state or some civil division thereof for the purpose of raising revenue for the support of the government and for general purposes, and which are levied on the ground of general public benefits, while 'special' taxes are those which are levied for a special or local purpose for the benefit of a part only of the body politic, and which rest on the supposition that a portion of the public is specially benefited in the increase of value to the property of the persons against whom the tax is levied.' 84 C.J.S. Taxation Sec. 3, p. 39.

In the Great Northern case, supra, this court, speaking through Mr. Justice Bottomly, stated at page 360 of 134 Mont. at page 504 of 332 P.2d: 'In the case at bar the statute provides for a special tax requiring a special assessment upon the property to be beneficially affected to the end that those benefited shall pay the whole cost through the special tax, the proceeds used in buying the apparatus and maintaining the fire department of the district or paying a city or town for extension of such fire protection to the district.' In distinguishing Hutchins v. Board of Supervisors of Alcorn County, 227 Miss....