Evers v. Hudson

• Decision Date: 18 November 1907
• Citation: 92 P. 462,36 Mont. 135
• Parties: EVERS v. HUDSON, County Treasurer.
• Court: Montana Supreme Court

92 P. 462

36 Mont. 135

EVERS v. HUDSON, County Treasurer.

Supreme Court of Montana

November 18, 1907

Appeal from District Court, Chouteau County; Jno. W. Tattan, Judge.

Action by C. H. Evers against L. O. Hudson, county treasurer of Chouteau county. From a judgment of dismissal, entered on sustaining a general demurrer to the complaint, plaintiff appeals. Reversed and remanded.

F. E Stranahan and Walsh & Newman, for appellant.

Albert J. Galen, Atty. Gen., W. H. Poorman, Asst. Atty. Gen., and E M. Hall, Asst. Atty. Gen., for respondent.

HOLLOWAY J.

A petition, signed by the requisite number of freeholders of Chouteau county, was presented to the board of county commissioners of that county, requesting that an election be called to determine the question of the establishment of a free county high school in that county. The required notice was given by the county clerk of the filing of such petition and thereafter the city of Havre was duly nominated as a candidate for the location of such school. The board of county commissioners ordered a special election to be held, and directed the county clerk to give the notice of election. The clerk caused to be published a notice of such special election, which failed to make any mention of the name of Havre, or of any other city or town, as a candidate for the location of such school, and failed to mention the fact that the matter of the location of such school would be voted upon. At the election on July 6, 1907, 1,125 votes were cast; 545 were cast against the establishment of a high school; 577 in favor of that proposition, and in favor of Havre as the location of such school; 1 vote was cast in favor of Benton; and 2 in favor of Zortman. The board of commissioners met, canvassed the returns, declared that the proposition for the establishment of the school had carried and that Havre had been chosen as the location of such school. A board of high school trustees was thereupon appointed, which board met, made an estimate of the funds necessary for the maintenance of such school for the ensuing school year, which estimate was duly certified to the county clerk, and the board of county commissioners made a levy of one mill on the dollar of the assessed valuation of taxable property within Chouteau county for the purpose of raising such necessary funds. This tax was extended on the tax rolls, and in due course of time such tax rolls were delivered to the respondent, the county treasurer, for the purpose of collecting the taxes. Thereupon this action was commenced by the plaintiff, a taxpayer of Chouteau county, to enjoin the county treasurer from collecting this one-mill levy for high school purposes. The complaint sets forth fully all the acts and things done in connection with the special election. To this complaint the defendant interposed a general demurrer, which was sustained, and, the plaintiff electing to stand upon his complaint, a judgment was rendered and entered dismissing the action, from which judgment this appeal is prosecuted.

In appellant's brief two contentions are made, and these raise numerous questions for determination: First, it is contended that the statute under which it was attempted to proceed is unconstitutional; second, it is said that, if the statute is constitutional, its provisions were not followed, and the tax levied is void.

1. The statute under consideration is chapter 29 of the Acts of the Tenth Legislative Assembly (Sess. Laws 1907, p. 50).

(a) It is contended that the title of the act is fatally defective. The title, as given in the enrolled bill, is as follows: "An act to establish county free high schools and provide for their maintenance, approved March 3, 1899, and repealing 'An act to amend sections, 2, 3, 4, 6, 8, 11, 12, 13, 14, 16, 17, and 19, and to repeal sections 21 and 22 of substitute for House Bill No. 69, "An act to establish county free high schools and to provide for their maintenance, approved March 3, 1899, and to renumber certain sections of said act,"' approved March 14, 1901; also repealing chapter LXIX of the Laws of 1903, entitled 'An act to amend sections 2 and 3 of Senate Bill No. 37, as enacted by the Seventh Legislative Assembly of the state of Montana, relating to the election of trustees of the county free high schools,' approved March 5, 1903, and to validate everything done under any of said acts of March 3, 1899, March 14, 1901, and March 5, 1903." Section 23, art. 5, of the Constitution, provides that the subject of every bill, except certain designated ones, shall be clearly expressed in its title. In State v. McKinney, 29 Mont. 375, 74 P. 1095, this court, in considering this particular provision of the Constitution, laid down five rules for determining whether any particular act is invalid by reason of a defective title. A reference to that case is sufficient, and those rules need not be reproduced here. In addition we may add: (6) This provision of the Constitution relates to matters of substance, and not merely to matters of form. (7) "If a title fairly indicates the general subject of the act, is comprehensive enough in its scope reasonably to cover all the provisions thereof, and is not calculated to mislead either the Legislature or the public, this is a sufficient compliance with the constitutional requirement." 26 Ency. Law (2d Ed.) 579. (8) "Generality or comprehensiveness in the title is no objection, provided the title is not misleading or deceptive and fairly directs the mind to the subject of the law in a way calculated to attract the attention truly to the matter which is proposed to be legislated upon." 26 Ency. Law (2d Ed.) 581. And (9) "meaningless words and phrases may be discarded by construction, and if, after such elimination, the title clearly expresses the subject of the act, it is sufficient." 26 Ency. Law (2d Ed.) 584.

These principles in general terms had already been announced in this state. State v. Mitchell, 17 Mont. 67, 42 P. 100. In State v. Anaconda C. M. Co., 23 Mont. 498, 59 P. 854, this court, in considering this same constitutional provision, said: "But by this constitutional notice it is only intended that the subject of the bill shall be fairly expressed in the title. It is not necessary, for the Constitution has not so declared, that a title shall embody the exact limitations or qualifications contained in the bill itself which are germane to the purpose of the Legislature, if the general subject of the measure is clearly expressed in the title. Upon the highest authority it is held that, under constitutional provisions substantially like that referred to in Montana, where the degree of particularity necessary to be expressed in the title of a bill is not indicated by the Constitution itself, the courts ought not to 'embarrass legislation by technical interpretations based upon mere form of phraseology. The objections should be grave, and the conflict between the statute and the Constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one subject, or, if but one subject, that it was not sufficiently expressed by the title."' This was approved in Yegen v. Board of Commissioners, 34 Mont. 79, 83 P. 740. The Supreme Court of Indiana has announced the same doctrine in the following language: "The title will sufficiently conform to the command of the Constitution if it be so framed and worded as to fairly apprise the legislators and the public in general of the subject-matter of the legislation, so as to reasonably lead to an inquiry into the body of the bill. The constitutional requirement may be interpreted to mean that the act and its title must correspond, not literally, but substantially, and such correspondence is to be determined in view of the subject-matter to which the legislation relates." Maule Coal Co. v. Partenheimer, 155 Ind. 100, 55 N.E. 751. In considering a like constitutional provision the Supreme Court of Minnesota, in State v. Board of Control, 85 Minn. 165, 88 N.W. 533, said: "Throughout all the decisions it will be found that it is a regard for the law itself, rather than any puerile consideration for the title, which is made the essential object of judicial anxiety. A review of the cases where this court has set aside statutes because in violation of section 27, art. 4, will show that the act was in every respect, to adopt the language of Justice Flandrau in Board of Supervisors of Ramsey County v. Heenan, 2 Minn. 330 (Gil. 281), entirely foreign to the object 'expressed in the title,' thus furnishing the evidence of such a fraud in securing its enactment that the law 'would never have received the sanction of the Legislature, had the members known the contents of the act."' See, also, Commonwealth v. Brown, 91 Va. 762, 21 S.E. 357, 28 L. R. A. 110. Allen v. Hopkins, 62 Kan. 175, 61 P. 750; Sutherland on Statutory Construction, § 86.

Tested by these rules, we think the title of this act is not subject to the objection urged. Stripped of the meaningless portion, it reads: "An act to establish county free high schools and provide for their maintenance, and to validate everything done under any of said acts of March 3, 1899, March 14, 1901, and March 5, 1903." This title is clear and comprehensive. It indicates the object to be accomplished, and it would appear impossible that any one could have been misled by reason of the insertion of the meaningless portion, just eliminated. The enactment of this statute would have the effect of repealing existing statutes in conflict with it, whether such intended repeal was indicated by the title or not.

(b) The same section of the Constitution, referred to above, with the exceptions noted, provides that no bill shall be passed...