Barbour v. State Board of Education

• Decision Date: 09 July 1932
• Docket Number: 6992.
• Citation: 13 P.2d 225,92 Mont. 321
• Parties: BARBOUR v. STATE BOARD OF EDUCATION et al.
• Court: Montana Supreme Court

13 P.2d 225

92 Mont. 321

BARBOUR v. STATE BOARD OF EDUCATION et al.

No. 6992.

Supreme Court of Montana

July 9, 1932

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Action by Philip R. Barbour against State Board of Education and others. From the judgment for defendants, plaintiff appeals.

Affirmed.

E. G Toomey, of Helena, for appellant.

L. A Foot, Atty. Gen., C. N. Davidson, Asst. Atty. Gen., and Murphy & Whitlock and Howard Toole, all of Missoula, for respondents.

LYMAN H. BENNETT, District Judge (sitting in place of Mr. Justice FORD).

This case is before us on an appeal by the plaintiff in the court below, Philip R. Barbour, from a judgment of dismissal entered by the district court in favor of the defendants State Board of Education and its constituent members, that court having sustained a general demurrer to the complaint and plaintiff having elected to stand upon the complaint.

The controversy arose out of the action of the state board of education setting in motion proceedings to erect certain buildings to be used for residence hall purposes upon the campus at each of the institutions, the State University at Missoula, and the Montana School of Mines at Butte. There is a somewhat casual mention made of a "student union building," but the charging portions of the complaint make no mention of any effort to proceed with that project, and we assume that it was abandoned, possibly because of a doubt in view of the terms of the statute as to the authority of the board to consummate the plan for its erection. The plan as disclosed by the complaint included the borrowing of money sufficient to complete the erection of at least the two residence halls, the security for the repayment of which is to consist in the pledging of "net revenue" from the operation of such halls when completed, together with the "net revenue," present and future, derived from residence halls already erected and in use.

The complaint, which prays for an injunction restraining the proceedings, alleges the adoption of a resolution by the board of education "assuming and pretending to act under and by virtue of the provisions of chapter 94, Laws of 1929," which chapter is set out in full in the complaint, and is as follows:

"An Act to Permit the Erection and Operation of Residence Halls at State Educational Institutions.

Be it enacted by the Legislative Assembly of the State of Montana:

Section 1. The State Board of Education is authorized to: (a) Erect from time to time at any of the institutions under its control such residence halls as may be required for the good of the institutions. (b) Rent the rooms in such residence halls and provide board to the students, officers, guests, and employees of said institutions at such rates as will insure a reasonable excess of income over operating expenses. (c) Hold the funds derived from the operation of such residence halls and spend the same for repairs, replacements, and betterments including the erection of additional residence halls. (d) Exercise full control and complete management of such residence halls.

Section 2. The title to all real estate and improvements acquired and erected under the provisions of this Act shall be taken and held in the name of the State of Montana.

Section 3. In carrying out the above powers, said board may: (a) Borrow money. (b) Pledge the rents and income received from the residence halls for the discharge of loans so executed.

Section 4. No obligation created hereunder shall ever be or become a charge against the State of Montana but all such obligations, including principal and interest, shall be payable solely: (a) From the net rents and income pledged. (b) From the net rents and income which has not been pledged for other purposes arising from any other residence halls or like improvement under the control and management of said Board; or (c) From the income derived from gifts and bequests made to the institutions under the control of said Board for residence hall purposes.

Section 5. In discharging obligations under the preceding sections the residence halls at each of said institutions shall be considered as a unit and the rents and income available for residence hall purposes at one institution shall not be used to discharge obligations created for residence halls at another institution.

Section 6. No state funds shall be loaned or used for this purpose. This shall not apply to funds derived from the net rents and income of residence halls now or hereafter owned by the State of Montana."

It is alleged that that act "is null and void and of no force and effect," and "confers no authority and authorized none of the things done or attempted to be done or initiated by such resolution."

The reasons for the claimed invalidity are set out in detail in the complaint. Upon this appeal these objections are grouped into four main classes, and we will deal with them in the same manner.

It is first contended that chapter 94, Laws of 1929, "is a wholesale grant of legislative power."

Bearing in mind that article 11, § 11, of the Constitution of this state, provides: "The general control and supervision of the state university *** shall be vested in a state board of education, whose powers and duties shall be prescribed and regulated by law," we conclude that the act falls well within the rule stated by this court in the case of Chicago, Milwaukee & St. Paul Ry. Co. v. Board of Railroad Commissioners, 76 Mont. 305, 247 P. 162, 164. There will be found this statement of that rule: "We think the correct rule as deduced from the better authorities is that if an act but authorizes the administrative officer or board to carry out the definitely expressed will of the Legislature, although procedural directions and the things to be done are specified only in general terms, it is not vulnerable to the criticism that it carries a delegation of legislative power."

In passing, we would say that we have examined every separate subdivision of the attacks made on the act in question. In any instance where particular reference is omitted to the provision of the Constitution or statute which it is claimed are infringed by the act, we have concluded that there is not sufficient merit in the contention to warrant extending this opinion by a discussion of their applicability.

Considerable emphasis is placed by the plaintiff on the proposition that the title to the act is insufficient, in that it does not disclose the "plurality of its subjects." Obviously section 23 of article 5 of the Constitution is the provision relied upon in support of this contention.

The question of the sufficiency of the title of various acts of the Legislature has been before this court many times. Each case has been decided upon its own particular set of facts. This must of necessity be the case. We advert to the divergent conclusions merely by way of indicating that no single rule can be laid down which will control all cases where this attack is made. We feel that this case does, however, fall within the rules laid down in the case of State v. McKinney, 29 Mont. 375, 74 P. 1095, 1096, 1 Ann. Cas. 579,

where we find this language: "The title is generally sufficient if the body of the act treats only, directly or indirectly, of the subjects mentioned in the title, and of other subjects germane thereto, or of matters in furtherance of or necessary to accomplish the general objects of the bill, as mentioned in the title. *** The title need not contain a complete list of all matters covered by the act."

Certainly buildings cannot be erected without some system of financing being involved in the process, and it would seem to be clear that the procedure and the details of such a system of financing would be germane to the subject of erection and operation of residence halls. It is our conclusion, therefore, that the body of chapter 94, Laws of 1929, "treats only, directly or indirectly, of the subject mentioned in the title," and that the act is not open to the attack that the title is insufficient to warrant the provisions...