Miller Ins. Agency v. Porter

• Decision Date: 13 March 1933
• Docket Number: 7095.
• Citation: 20 P.2d 643,93 Mont. 567
• Parties: MILLER INS. AGENCY v. PORTER, State Auditor, et al.
• Court: Montana Supreme Court

20 P.2d 643

93 Mont. 567

MILLER INS. AGENCY v. PORTER, State Auditor, et al.

No. 7095.

Supreme Court of Montana

March 13, 1933

Rehearing Denied March 29, 1933.

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

Action by the Miller Insurance Agency, a corporation, against George P. Porter, as State Auditor of the State of Montana, and another. From an order dissolving a temporary restraining order and denying an injunction, plaintiff appeals.

Affirmed.

ANGSTMAN J., dissenting in part.

H. L Maury and A. G. Shone, both of Butte, for appellant.

Raymond T. Nagle, Atty. Gen., and W. D. Kyle, J. A. Poore, and R. F. Gaines, all of Butte, for respondents.

ANDERSON Justice.

The plaintiff, a Montana corporation and taxpayer, brought this action to enjoin the issuance and payment of warrants for fire insurance on the state capitol building, the buildings at the various educational and other state institutions. The plaintiff is engaged in the sale of fire insurance policies, and is the agent for a number of "non-board" fire insurance companies.

The various policies for fire insurance on all of the buildings, the property of the state, were about to expire on September 1, 1932. A meeting was held by the state board of examiners to consider the securing of policies of insurance on the above enumerated buildings. No call for bids was advertised by the board. The plaintiff, through its authorized representative, attended the meeting and offered in writing to furnish insurance on a substantial portion of the risks to be carried at a rate somewhat less than theretofore paid or thereafter agreed to be paid for such insurance. The board refused to accept the bid and proceeded to enter into contracts for insurance with other companies at a higher rate.

The legislative assembly in 1931 made two appropriations for the payment of fire insurance premiums on state buildings. One appropriation is found in the general appropriation bill for the expense of the government of the state of Montana. Another is an appropriation from the university millage fund and is a part of the appropriation bill for the operation and maintenance of the various educational institutions, for the support of which this millage fund is levied and collected. It was the plan of the board of examiners at the time of the letting of the insurance to pay for the insurance on the buildings of the various units of the educational institutions from the latter appropriation, and to pay the insurance premiums on the state capitol and the other state institutions from the appropriation in the general appropriation bill.

It was proposed by the state board of examiners to secure policies of fire insurance for a period of three years from September 1, 1932, the payments to be made as indicated, with the exception that the amount appropriated from the millage fund was insufficient by approximately $6,000 with which to pay the costs of the insurance on the buildings to be insured from that fund.

The plaintiff by this action sought to prevent the payment for the various policies of fire insurance upon two general grounds: Namely, (1) that the various appropriation bills containing these appropriations were in contravention of certain constitutional provisions, hereinafter noted, and therefore void; (2) that the state board of examiners was without authority to let contracts for insurance unless they first advertised and received bids in accordance with certain statutory provisions.

On the filing of the complaint in the lower court a restraining order, and order to show cause, was issued in accordance with the prayer of the complaint. Answer was filed, and in due course a hearing had; thereafter the restraining order was dissolved and plaintiff's application for an injunction denied. The appeal is from the order dissolving the temporary restraining order and refusing further injunctive relief.

The plaintiff asserts that the titles to the appropriation bills are in violation of sections 23 and 33 of article 5 of our Constitution. The title to House Bill 190 (Laws 1931, p. 574) is: "An Act to Appropriate Money for the Operation and Maintenance, and Other Purposes, as Designated Herein, for Certain State Departments, Boards, Bureaus and Commissions for the Period Beginning July 1, 1931, and Ending June 30, 1933."

It is apparent from the reading of the foregoing title as well as the bill itself that the bill was a general appropriation bill. Section 33 of article 5 permits more than one subject to be included in a general appropriation bill, provided there is embraced "nothing but appropriations for the ordinary expenses of the legislative, executive and judicial departments of the state. ***" The only question raised by plaintiff with reference to this particular bill is that fire insurance is not ordinary expenses of some one of the three co-ordinate departments of state government.

The insurance provided by this particular bill was on the state capitol and other state institutions, such as the penitentiary, insane asylum, etc. Ordinary expenses include the current expenses of the government. State ex rel. Branch v. Leaphart, 11 S.C. 458; In re Limitation of Taxation, 3 S. D. 456, 54 N.W. 417. The expense of salaries of officers and enlisted men of the national guard have been held to be ordinary expenses of the legislative, executive, or judicial department within the meaning of a like constitutional provision. State ex rel. Davis v. Carter, 31 Wyo. 401, 226 P. 690. Appropriations for the support of a farmers' institute are said to be, although not within a narrow definition of the expenses of the state government, nevertheless fairly included in the title of a general appropriation act, and are proper charges assumed in the definition of the legislative assembly as expenses of state government. Illinois Farmers' Institute v. Brady, 267 Ill. 98, 107 N.E. 784.

The insurance of buildings, the property of the state, is an expense that will occur from time to time if the state is to follow the same care and caution exercised by ordinarily prudent citizens in the conduct of their own affairs. Any expense which recurs from time to time and is to be reasonably anticipated as likely to occur in order for the proper operation and maintenance of the departments of the state government, is an ordinary expense. Fire insurance premiums are clearly of this nature. A general appropriation bill is not violative of the section of the Constitution complained of, containing appropriations to pay premiums on buildings determined by the legislative assembly to be necessary for the proper function of the governmental departments.

The other appropriation was contained in House Bill 222 (Laws 1931, p. 590), the title to which is as follows: "An Act to Appropriate Money for the Operation and Maintenance of the Six (6) Units of the University of Montana, for the Agricultural Experiment Stations and the Substations, for Farmers' Extension Work, for the Bureau of Mines, for the Students Railroad Fare Refund and for Fire Insurance Premiums on the Physical Plant of the University of Montana and Its Various Branches, for the Period Beginning July 1, 1931, and Ending June 30, 1933."

It is urged that this title is in violation of section 23 of article 5 of the Constitution, prohibiting the inclusion of more than one subject which shall be clearly expressed in the title. In view of the fact that the title expressly mentions "Fire Insurance Premiums" the objection is narrowed to the question of whether or not the inclusion thereof renders the act vulnerable by reason of containing two subjects. The purpose of the act as disclosed by the title was to appropriate money for the operation and maintenance of six units of the University of Montana, and for fire insurance premiums on the physical plant of the University.

The purpose of the constitutional provision under consideration has frequently received the careful attention of this court. The rule announced is "that the unity required by this section is served notwithstanding the existence of many provisions in an act where such provisions are germane to the general subject expressed." State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 P. 841, 847; State ex rel. Hay v. Alderson, 49 Mont. 387, 142 P. 210, Ann. Cas. 1916B, 39; see, also, Reid v. Lincoln County, 46 Mont. 31, 125 P. 429.

In the title to this act there is but one subject, namely, the operation and maintenance of the University and the experimental stations. In order to properly operate and maintain these various institutions it was essential that the buildings be insured. The expense was one necessary in the careful and proper operation and maintenance of them. The contention is without merit.

The argument is made by plaintiff that the contracts of insurance being for three years, section 12 of article 12 of the Constitution is violated. It provides that "no appropriation of public moneys shall be made for a longer term than two years."

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