Guillot v. State Highway Commission of Montana

• Decision Date: 08 April 1936
• Docket Number: 7531.
• Citation: 56 P.2d 1072,102 Mont. 149
• Parties: GUILLOT v. STATE HIGHWAY COMMISSION OF MONTANA et al.
• Court: Montana Supreme Court

56 P.2d 1072

102 Mont. 149

GUILLOT v. STATE HIGHWAY COMMISSION OF MONTANA et al.

No. 7531.

Supreme Court of Montana

April 8, 1936

Original injunction proceeding by P. R. Guillot against the State Highway Commission of Montana and others.

Defendants' demurrer sustained, and proceeding dismissed.

SANDS C.J., dissenting.

John W Chapman, of Helena, for plaintiff.

Raymond T. Nagle, Atty. Gen., Jeremiah J. Lynch, Asst. Atty. Gen John W. Bonner, of Helena, and Rockwood Brown and Johnston Coleman & Jameson, all of Billings, for defendants.

MATTHEWS Justice.

Original application for an injunction to restrain the State Highway Commission and its members from the expenditure of its funds for the erection of a building on the capitol grounds. To the complaint filed after leave of court granted, the defendants interposed a general demurrer, which admits the truth of all facts alleged.

The plaintiff is a taxpayer and a regular purchaser of gasoline, and prosecutes this proceeding on behalf of himself and all other persons similarly situated. As the interests of the public are involved in the controversy and the plaintiff is acting on behalf of the state, or, what is the same thing, the public interest, and as the wrong to be averted, if wrong there be in the erection of the building, is imminent, and substantial relief can be awarded herein, this court has original jurisdiction to issue the writ. State ex rel. City of Helena v. Helena Waterworks Co., 43 Mont. 169, 115 P. 200.

The building which the commission proposes to build will cost $138,000, a part of which may be secured as a grant from the Federal Emergency Administration of Public Works, but, whether or not this grant will be secured, a substantial amount from the highway fund, built up from receipts from the gasoline tax imposed by the state, will be diverted to the payment of the cost of the erection of the building.

By resolution providing for the erection thereof, the commission declared that an emergency exists and that the building is immediately necessary to the proper functioning of the highway department and the performance of the duties imposed by law upon the commission. The plaintiff concedes that all that is said by the commission is true and sets up facts in corroboration thereof, thus presenting the sole question of the authority of the commission under the law to use a portion of the fund derived from the gasoline tax for the erection of the building.

A State Highway Commission was first created in this state by chapter 170 of the Laws of 1917, which act was repealed by chapter 10 of the Laws of 1921, Ex.Sess., a new enactment on the subject, carried into the Codes of 1921 as sections 1783 to 1802, inclusive. Section 1783 was amended by chapter 129, Laws 1925, and section 1789 was repealed in part by chapter 176, Laws 1931; but these changes are not important here. A gasoline license tax law was enacted in 1921 and appears as sections 2381 to 2396, inclusive, Revised Codes 1921, certain of these sections being amended from time to time. Sections 2382, 2383, and 2392, above, were amended by Initiative Measure 31, in the election of 1926, appearing at page 604 of the Laws of 1927. Initiative Measure 31 was repealed by chapter 163, Laws 1935, on recommendation of the Code Commissioner, but by virtue of chapters 18 and 19, Laws 1927, none of the force and effect of the Measure has been lost. Within these various acts as they remain upon the statute books, appear the powers, duties, and authority of the commission and the purposes for which the funds derived from our present 5 cent per gallon gasoline tax may be expended.

Section 13 of chapter 19, Laws 1927, declares: "All money received by the State Treasurer in payment of license taxes under the provisions of this Act, shall be deposited by him in, and credited to, the State Highway Fund. All money so collected and deposited *** shall be used and expended by the State Highway Commission in the construction, reconstruction, betterment, maintenance, administration and engineering on the Federal Highway system of highways in this state selected and designated under the provisions of the Federal Aid Act, approved July 11, 1916, and the Federal Highway Act approved November 9, 1921, and all amendments thereto, and for the purpose of construction, reconstruction, betterment, maintenance, administration and engineering of highways leading from each county seat in the State to said Federal Highway system of Federal Aid roads where such county seat is not on said system, and for the purpose of construction, reconstruction, betterment, maintenance, administration and engineering of such other roads as have been or may be authorized by the laws of Montana, for the collection and enforcement of this Act, and for the purpose of payment of refunds and drawbacks authorized by law to be made to purchasers of gasoline used in this state for other purposes than the propulsion of motor vehicles over the public highways and streets of this state; provided, that the total cost to the State for administration and engineering on the Federal Aid work contemplated by this Act shall not exceed for any fiscal year eight per cent (8%) of the total of State, Federal Aid and other available funds expended under the supervision of the State Highway Commission."

Whether such action was necessary or not, the Legislature has from time to time passed an appropriation bill appropriating the money in the highway fund, and such other amounts as may come into the fund, for use by the commission, the latest enactment of this nature being House Bill 292, p. 458, Laws 1935, appropriating for the period from July 1, 1935, to June 30, 1937, the sum of $6,500,000, together with all additional money deposited by law to the credit of the fund, for "expenditure by the State Highway Commission as provided by law."

This fund is, therefore, available to the commission for any purpose for which it may expend money, subject only to the provision that not to exceed 8 per cent. of the total funds available may be expended for "administration and engineering" purposes; and it is conceded that, if the building is erected from administration funds, this provision will not be violated. The percentage thus employed in 1928 was 6.77, but has steadily diminished until, in 1935, it was but 3.68, or less than half the amount permitted by law. If no additional amounts come into the fund, the 8 per cent. of the $3,250,000 appropriated for the current year will exceed $400,000, and the cost of the building, in addition to an expenditure equal to that of the fiscal year ending June 30, 1935, will not reach that amount.

Under our political system the entire source of governmental authority is found in the people themselves. Either directly or through their chosen representatives, they create such offices and agencies as they deem desirable for the administration of the public functions, and declare in what manner and by what persons they shall be exercised; prescribe the quantum of power to be attached to each department and the conditions upon which its continuation depends. Their will, in these respects, finds its expression in their Constitutions and laws. Mechem's Public Offices & Officers, 329. But the powers which an officer, commission, or department may exercise are not confined to those expressly granted by the Constitution or statutes of the state. "In addition to powers expressly conferred upon him by law, an officer has by implication such powers as are necessary for the due and efficient exercise of those expressly granted, or such as may be fairly implied therefrom. But no power will be implied other than those which are necessary for the effective exercise and discharge of the powers and duties expressly conferred." 46 C.J. 1032.

With reference to municipal corporations, this court has rather narrowed this rule, by declaring that such agencies have only those implied powers which are "indispensable" in order to carry out those expressly granted, and that, where there is a fair and reasonable doubt as to the existence of a particular power, it must be resolved against the existence of the power. Helena Light & Ry. Co. v. City of Helena, 47 Mont. 18, 130 P. 446; City of Bozeman v. Merrell, 81 Mont. 19, 261 P. 876. However, with respect to these corporations, the Legislature has, apparently, attempted to define in detail all powers to be exercised in the eighty-odd subdivisions of section 5039 of the Revised Codes of 1921 and the amendments thereto (Laws 1925, c. 115; Laws 1927, c. 20), and in subsequent sections, while here no attempt to define the powers of the State Highway Commission was made; indeed, it would be altogether impractical to prescribe by statute the numerous and varying duties of such an agency of the state. State ex rel. Priest v. Regents, 54 Wis. 159, 11 N.W. 472. All of the commission's powers with respect to our highways must be implied from the sweeping authority vested in it to expend the funds placed at its disposal "in the construction, reconstruction, betterment, maintenance, administration and engineering on the Federal Highway system" and other roads mentioned. Within the act there can be found no express power to purchase machinery, equipment, and appliances for the construction and maintenance of highways, nor even the purchase of material which goes into the roads, bridges, and viaducts; yet over the period of its existence the commission has expended, without question, hundreds of thousands of dollars for these purposes.

With reference to boards charged with the construction of roads but with no such broad authority or vast territory under their jurisdiction, it is held that the power and authority to lay out and...