Hersey v. Nelson

• Decision Date: 19 March 1913
• Citation: 131 P. 30,47 Mont. 132
• Parties: HERSEY v. NELSON ET AL., COUNTY COM'RS.
• Court: Montana Supreme Court

131 P. 30

47 Mont. 132

HERSEY v. NELSON ET AL., COUNTY COM'RS.

Supreme Court of Montana

March 19, 1913

Appeal from District Court, Hill County; J. E. Erickson, Judge.

Action by P. H. Hersey against Ever Nelson and others, county commissioners, and J. A. Rose, county treasurer of Hill county, Mont. Judgment for plaintiff, and defendants appeal. Affirmed.

H. S Kline and Victor R. Griggs, both of Havre, Gunn, Rasch & Hall, and W. W. Patterson, all of Helena, for appellants.

C. A Spaulding, of Helena, for respondent.

HOLLOWAY J.

On March 8, 1912, the board of county commissioners of Hill county, Mont., let a contract to B. B. Weldy, proprietor and publisher of the Chester Signal, a newspaper which had been published in Hill county for more than six months prior thereto, to do the county printing, including the furnishing of blanks, blank books, etc. Thereafter Weldy sublet to the Shaw-Borden Company, of Spokane, Wash., the contract to furnish all blank record books, warrant books, certificate books, registers, and bound books of every description to be used by the county. This action was commenced by a resident taxpayer to secure an injunction restraining the board of county commissioners from allowing the account of Weldy for supplies furnished through the Shaw-Borden Company, or from directing a county warrant to be issued to pay for such supplies, and to restrain the county treasurer from paying for such supplies. Upon the complaint a temporary injunction was issued. The defendants demurred to the complaint and moved to dissolve the injunction. The demurrer was overruled and the motion to dismiss denied. Defendants thereupon stood upon their demurrer, suffered judgment to be entered against them, and have appealed.

It is insisted that section 2897 of the Revised Codes is unconstitutional, and this presents the only question for our determination. After providing for letting public printing contracts, that section of the Codes proceeds: "All newspapers which may receive any contract for printing under this act which may not be able to execute any part of such contract shall be required to sublet such contract or portion of contract to some newspaper or printing establishment within the state, which may be competent to execute such work. * * *"

1. In their brief counsel for appellants attack the statute, and say: "It is our contention that a county is a municipal corporation, having governmental and proprietary functions; that as to the former the state's control is supreme, but as to the latter the state's control is no more extensive than it is over private corporations; that county printing is a matter solely of local concern, and comes within the proprietary functions of a county, and that the above provision of section 2897 is an unconstitutional restriction upon the power of a county to contract as to its local affairs." If the statement, "a county is a municipal corporation, having governmental and proprietary functions," is true, the conclusion announced above might follow. But we are not able to agree with counsel that the premise states correctly any rule of law. The word "municipal" means "pertaining to a city or a community within a state, possessing rights of self-government." Anderson's Law Dictionary. It is derived form the Latin "municipalis," which in its origin referred to a town possessing the rights of Roman citizenship and governed by its own laws; in other words, to a free town. Webster's International Dictionary. A municipal corporation is "a public corporation created by government for political purposes and having subordinate and local powers of legislation." Bouvier's Law Dictionary. Every authority on municipal law makes clear the distinction between a municipality and a county, as the word "county" is used in the Constitution and statutes of this state. In 1 Dillon on Municipal Corporations (5th Ed.) § 32, the author says: "We may therefore define a municipal corporation in its historical and strict sense to be the incorporation by the authority of the government of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate, specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distinguishing feature of a municipal corporation proper." And again, in section 34: "All corporations intended as agencies in the administration of civil government are public, as distinguished from private corporations. Thus an incorporated school district, or county, as well as a city, is a public corporation; but the school district or county, properly speaking, is not, while the city is, a municipal corporation." That the framers of our Constitution did not intend municipal corporations to include counties is clear, for the two terms are used to distinguish different organizations (section 6, art. 16; section 4, art. 13; People v. McFadden, 81 Cal. 489, 22 P. 851, 15 Am. St. Rep. 66). A county is a body corporate (section 2870, Rev. Codes), so, likewise, is a school district (section 848); but neither possesses the powers of local legislation and control which are the distinguishing characteristics of a municipal corporation (State v. Leffingwell, 54 Mo. 458; State v. Barker, 116 Iowa, 96, 89 N.W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222; Memphis T. Co. v. Board of St. Francis Levee Dist., 69 Ark. 284, 62 S.W. 902).

Because of its autonomous character--its enjoyment of a large measure of organic independence--the municipal corporation is relieved to a considerable extent from officious, meddlesome legislation which seeks to interfere with its private or proprietary functions. The theory of local self-government for municipal corporations is firmly established in this state. Helena Con. Water Co. v. Steele, 20 Mont. 1, 49 P. 382, 37 L. R. A. 412; State ex rel. Gerry v. Edwards, 42 Mont. 135, 111 P. 734, 32 L. R. A. (N. S.) 1078, Ann. Cas. 1912A, 1063. But because of the difference in the character of a county and a municipality, the authorities which restrain the Legislature from intermeddling with the private affairs of the municipal corporation are not in point when the question for determination is the right of the Legislature to control county affairs.

"It is well-established law that a county is an involuntary corporation for governmental purposes, and is in no sense a business corporation; that the powers and obligations of the county are such only as the law prescribes or as arise by necessary implication therefrom. Eikenberry v. Township [22 Kan. 556, 31 Am. Rep. 198]; Marion County v. Riggs ; 11 Cyc. 497; 7 Am. & Eng. Enc. Law, 947. Cities, however, in this state are municipal corporations, and neither their powers nor obligations are so restricted, and decisions as to their liability for negligence have no application here." Silver v. Board of Com'rs, 76 Kan. 228, 91 P. 55.

In 1 Dillon on Municipal Corporations, § 35, the author says: "With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy." In section 37 of the same work the distinction between municipal corporations on the one hand and political or civil divisions of the state created for administrative purposes, such as counties and school districts, on the other, is made clear. See, also, Shipley v. Hacheny, 34 Or. 303, 55 P. 971.

"A county is one of the civil divisions of the state for political and judicial purposes, created by the sovereign power of the state of its own will, without the consent of the people who inhabit it. 7 Am. & Eng. Ency. Law (2d Ed.) 900. It is quasi corporate in character, but has only such powers as are expressly provided by law or are necessarily implied by those expressed." Independent Pub. Co. v. Lewis & Clark County, 30 Mont. 83, 75 P. 860.

In Board of Commissioners v. Watson, 7 Okl. 174, 54 P. 441, it is said: "A county is but a subordinate, political subdivision of sovereignty created for governmental purposes and for greater convenience in carrying on the public affairs."

"A county is a governmental agency or political subdivision of the state, organized for purposes of exercising some functions of the state government, whereas a municipal corporation is an incorporation of the inhabitants of a specified region for purposes of local government." San Mateo County v. Coburn, 130 Cal. 631, 63 P. 78.

In speaking of a county, the Supreme Court of Oregon, in Yamhill County v. Foster, 53 Or. 124, 99 P. 286, said: "It is merely a political agent of the state created by law for governmental purposes, and is charged with the performance of certain duties for and on behalf of the state."

"Counties are not in any respect business corporations for private purposes; nor are they organized exclusively for the common benefit of citizens and property holders within their respective limits. They are of a purely political character constituting the machinery and essential agency by which free governments are upheld, and through which for the most part their powers are exercised. Their functions are wholly of a public nature. Counties are subordinate agencies for the orderly government of the state within the scope of their authority; hence they are subject to the control and direction of the Legislature in which chiefly the sovereignty of the state is represented and exercised." 11 Cyc. 341. In State v. Board of Commissioners, 170 Ind. 595, 85 N.E. 513; Id., 82 N.E. 482, it is said: "A county is an involuntary corporation, organized as a political subdivision of ...