Crow Creek Irr. Dist. v. Crittenden
| Citation | 227 P. 63,71 Mont. 66 |
| Decision Date | 21 June 1924 |
| Docket Number | 5433. |
| Parties | CROW CREEK IRR. DIST. v. CRITTENDEN, COUNTY CLERK, ETC. |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Broadwater County; Wm. L. Ford, Judge.
Action by the Crow Creek Irrigation District against Alice Crittenden, County Clerk and ex officio Recorder of Broadwater County. From judgment for plaintiff, defendant appeals. Affirmed.
W. D Rankin, Atty. Gen., L. A. Foot, Asst. Atty. Gen., and Frank T. Hooks, of Townsend, for appellant.
William Scallon, of Helena, for respondent.
This proveeding was instituted under the provisions of section 9872, Revised Codes, by filing with the district court an agreed statement of facts as follows: Plaintiff, an irrigation district organized under the laws of this state (chapter 146, Laws of 1909), tendered to the defendant county clerk and recorder of Broadwater county, certain papers for recording, which papers were in due form, and were required to be recorded in that county, but defendant refused to record them unless paid in advance $104, the statutory fees which would be required of a private individual for like service; and in order to secure the papers to be recorded plaintiff paid the fees, but under protest. The trial court held that defendant was not entitled to demand any fees, and rendered and had entered a judgment in favor of the plaintiff, from which the defendant appealed.
Section 4887, Revised Codes, and subsequent sections, require every salaried county officer to collect the fees therein mentioned for the use of the county; but section 4893 provides:
"No fees must be charged the state, or any county, or any subdivision thereof, or any public officer acting therefor * * * for official services rendered, and all such services must be performed without the payment of fees."
In State v. Story, 53 Mont. 573, 165 P. 748, this court held that the term "fees" used in those sections "imports specific charges to be collected from private individuals for particular services."
Chapter 146, Laws of 1909 (sections 7166-7173, Rev. Codes of 1921) under which this plaintiff was organized, provides:
"Every irrigation district so established hereunder is hereby declared to be a public corporation for the promotion of the public welfare." Section 7169, Rev. Codes.
Section 5901 provides:
We need not stop to determine whether by its bare ipse dixit the Legislature may create a public corporation out of a purely private enterprise which does not exercise any functions of government. For the purposes of this appeal it is sufficient to say that the existence of a public corporation does not depend upon the exercise of all of the functions of government within its prescribed limits. Dean v. Davis, 51 Cal. 406.
It may be true that in Oregon and Nevada an irrigation district does not perform any governmental function whatever ( Directors v. Peterson, 64 Or. 46, 128 P. 837, 129 P. 123; In re Walker Irrigation District, 44 Nev. 321, 195 P. 327); but that is not true here, for an irrigation district organized under the laws of this state does exercise some governmental functions; for example, it may levy taxes (section 7232, Rev. Codes), which is the exercise of one of the highest prerogatives of sovereignty (People ex rel. Scott v. Pitt, 169 N.Y. 521, 62 N.E. 662, 58 L. R. A. 372).
We may accept without further comment the declaration of the Legislature that an irrigation district is a public corporation, and the ultimate question for determination still remains: Is it a subdivision of the state within the meaning of section 4893, above, and entitled to have the services herein demanded, rendered by the county clerk without the payment of any fees?
Independently of these or like statutory definitions, it has been held generally that whether a public corporation is a subdivision of the state depends upon the connection in which the phrase "subdivision of the state" is used. A school district is generally regarded as a subdivision of the state (Skelly v. School District, 103 Cal. 659, 37 P. 643), and this rule is recognized by the Supreme Court of Missouri (Wilson v. Drainage and Levee District, 237 Mo. 39, 139 S.W. 136); but it was held that a school district is not a subdivision of the state within the meaning of that phrase as used in the Constitution defining the jurisdiction of the Supreme Court ( School District v. Boyle, 182 Mo. 347, 81 P. 409; State ex rel. School District v. School District, 238 Mo. 407, 141 S.W. 1111). The same court held that a drainage district is a subdivision of the state for certain purposes (Morrison v. Morey, 146 Mo. 543, 48 S.W. 629; Squaw Creek Drainage District v. Turney, 235 Mo. 80, 138 S.W. 12); and likewise a levee district ( State ex rel. Stotts v. Wall, 153 Mo. 216, 54 S.W. 465; Land & Stock Co. v. Miller, 170 Mo. 240, 70 S.W. 721, 60 L. R. A. 190, 94 Am. St. Rep. 727). But it is also held that neither comes within the meaning of the phrase as employed in section 12, art. 6, of the Missouri Constitution. Wilson v. Drainage and Levee District, above. Likewise the Texas court held that a commissioner's precinct is a subdivision of the state within the meaning of that phrase as used in the local option law (Cofield v. Britton, 50 Tex.Civ.App. 208, 109 S.W. 493), but that an election district is not (Efird v. State, 46 Tex. Cr. App. 582, 80 S.W. 529); and neither is a school district (Ex parte Haney, 51 Tex. Cr. App. 634, 103 S.W. 1155). In State, Lydecker, v. Englewood, 41 N. J. Law, 154, it was held that a drainage district is not a subdivision of the state within the meaning of that provision in the Constitution fixing the limit of taxing districts. In New York and Nevada it is held that a political subdivision of the state within the meaning of the election laws is a district of the state within which any public officer is elected. In re Richards, 179 A.D. 823, 167 N.Y.S. 152; In re Walker Irrigation District, above. In Kinne v. Burgess, 24 Ariz. 463, 211 P. 573, it was held that...
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