Morgan v. Murray, 9918

• Decision Date: 22 July 1958
• Docket Number: No. 9918,9918
• Citation: 134 Mont. 92,328 P.2d 644
• Parties: John D. MORGAN, Plaintiff and Respondent, v. Frank MURRAY, Secretary of State of the State of Montana, Defendant and Appellant.
• Court: Montana Supreme Court

Page 644

328 P.2d 644

134 Mont. 92

John D. MORGAN, Plaintiff and Respondent, v. Frank MURRAY, Secretary of State of the State of Montana Defendant and Appellant.

No. 9918.

Supreme Court of Montana.

July 22, 1958.

Rehearing Denied July 30, 1958.

Forrest H. Anderson, Atty. Gen., James A. Robischon, Asst. Atty. Gen., Robert L. Word, Jr., Sp. Asst. Atty. Gen., for appellant.

James A. Robischon, Asst. Atty. Gen., argued orally for appellant.

A. W. Scribner, Helena, amicus curiae.

Michael G. Chilton, Helena, for respondent.

Michael G. Chilton, Helena, argued orally for respondent.

HARRISON, Chief Justice.

Senate Bill No. 178 was introduced by Senators Cotton, McGowan, Durkee, Hibbs, Lehrkind and Grandey, on February 5, 1957.

It was passed by the Senate on February 22, 1957. On March 4, after having been read in the House of Representatives, it was passed and returned to the Senate to be enrolled. Governor J. Hugo Aronson approved the Bill on March 9, 1957, and it now appears as Chapter 197, Laws of 1957.

The Act is entitled: 'An Act to Submit to the Vote of the People a Measure to Authorize the State of Montana to Become Indebted in the Sum of Ten Million Dollars ($10,000,000.00) in Excess of the Constitutional Limitation of Indebtedness Heretofore Incurred or Created and for Which the State of Montana is now Obligated, for the Construction and Equipping of Necessary Buildings, Other Permanent Improvements, Acquisition of Necessary Grounds Therefor Over a Maximum Period of Twenty Years in and About the University of Montana, Consisting of the Six Units Thereof Now Existing, Namely, the Montana State University at Missoula, Montana State College at Bozeman, Montana School of Mines at Butte, Western Montana College of Education at Dillon, Eastern Montana College of Education at Billings, and the Northern Montana College at Havre as Well as the Experiment Stations for Agriculture, Engineering, Forestry, and Mining, and the Agriculture Extension Service; Providing for the Issuance of Bonds in the Name of the State of Montana as Evidence of Such Indebtedness, and for the Sale Thereof, Prescribing the Form of Such Bonds and for a Levy of an Annual Tax Sufficient to Pay the Principal Thereof, and the Interest Accruing Thereon, Providing for a Referendum of This Act, Describing the Form of Ballots to be Used and the Duties of the Secretary of State of Montana Relative to the Submission of this Act to the Qualified Electors of the State, and Providing When This Act Shall Take Effect.'

Section 1 authorizes the Legislative Assembly of the State of Montana, to direct the state board of examiners to issue bonds in excess of the constitutional debt limitation for the purpose of providing a fund for the construction and equipping of the six units of the Montana State University system, as well as certain experimental stations and extension services.

Section 2 provides for the issuance of bonds by the board of examiners as may appear to the state board of education to be for the best interests of the state and of the University of Montana.

Section 3 provides the interest the bonds shall bear, date the bonds shall be issued, maturity dates and other miscellaneous provisions.

Section 4 provides for the form the bonds shall take.

Section 5 provides for all moneys derived from the issuance and sale of the bonds to be paid into the state treasury to constitute a special fund for the construction and equipping of buildings, plus improvements and additions to the six units of the University of Montana.

Section 6 provides: 'There shall be levied annually upon all property of the State of Montana subject to taxation an ad valorem tax upon each dollar of the taxable valuation of such property sufficient to pay the interest accruing on said bonds as such interest shall fall due, and the payment of the bonds as they serially become due, said levy, however, not to exceed one and one-quarter (1 1/4) mills per annum, until the indebtedness herein provided for shall have been fully paid and discharged. The tax when collected by the county treasurers of the several counties of the state shall be by them accounted to and paid into the state treasury of the State of Montana and by the state treasurer placed in the 'University of Montana second building bond interest and redemption fund' which fund shall be used exclusively for the payment of principal and interest on said bonds as the same become due.'

Section 7 provides for the referral of the Act to the people at the general election to be held in November 1958, and the form the ballot shall take.

John D. Morgan, the plaintiff herein, brought an action against Frank Murray, Secretary of State of the State of Montana, on March 13, 1958, for declaratory judgment, asking the court to declare Chapter 197, Laws of 1957, unconstitutional, illegal, null and void, upon numerous technical and constitutional grounds; and praying for a permanent injunction restraining the defendant from placing the referendum on the November bollot.

The district court of the first judicial district of the State of Montana, in and for the County of Lewis and Clark, the Honorable Victor H. Fall presiding, overruled a motion to quash and demurrer interposed by the defendant, represented by the attorney general of the State of Montana, and after defendant elected to stand on his demurrer, the court entered judgment in favor of the plaintiff and against the defendant, permanently enjoining the secretary of state from preparing or issuing a ballot referring Chapter 197, Laws of 1957, to the people of the State of Montana.

From this judgment the defendant has appealed.

We enter into a consideration of the merits aided by all the well-known rules of constitutional construction. We also are fully aware that our office is not to test the wisdom of legislation or its propriety, or even its necessity. This may be said to have special pertinency in matters of fiscal policy and authority to levy taxes and appropriate the revenue. Nor are we concerned with the question of whether this project is based upon sound or unsound economic theories, or is the best means to achieve the desired results; that is not within the scope of judicial inquiry. So, the wisdom of imposing the debt of ten million dollars and imposing a property tax not exceeding one and one-quarter mills on all property within the State of Montana is of no concern to the court. All this was within the legislative responsibility and its power, provided it was not restricted by the Constitution.

Ours is a power-testing function; did the Legislative Assembly have the power to enact this legislation? It is the sworn duty of this court to enforce provisions of the Constitution irrespective of consequences.

While many facets of Chapter 197 have been ably explored by respective counsel, we feel that a determination of this case may be made solely on one ground, namely: that Chapter 197, Laws of 1957, is unconstitutional as being in violation of section 32, of article V, Montana Constitution, which, in part, provides: 'All bills for raising revenue shall originate in the house of representatives * * *.'

This provision, that all bills for raising revenue shall originate in the House, was borrowed from the British House of Commons 'of which it is the ancient and undisputed right and privilege that all grants of subsidies and parliamentary aids shall begin in their House * * *'. 1 Story on the Constitution, § 874, p. 639, 5th Ed. See also State v. Bernheim, 19 Mont. 512, 515, 49 P. 441; Anderson v. Ritterbusch, 22 Okl. 761, 98 P. 1002, 1005.

The Federal Constitution, art. I, § 7, cl. 1, contained a provision identical to that part of section 32, article V, which reads: 'All bills for raising revenue shall originate in the house of representatives * * *' a century before the same provision was brought into existence by our own organic law.

The leading federal pronouncement upon the interpretation of clause 1, § 7, article I, was made by Justice Story in United States v. Mayo, 1813, 26 Fed.Cas.No. 15,755, 1 Gall. 396, 397 wherein it was said: 'It is argued, that the present is a case arising under the revenue laws of the United States, and that in an enlarged sense, these words embrace all laws, where any fine or forfeiture accrues to the government. I have no difficulty in rejecting this construction, as it would draw within its grasp every crime to which a pecuniary fine or forfeiture attaches by law, of whatsoever character it might be; and I might add, that not a single law inflicting a forfeiture would escape its comprehensive power. The true meaning of 'revenue laws' in this clause is, such laws as are made for the direct and avowed purpose for creating and securing revenue or public funds for the service of the government. No laws, whose collateral and indirect operation might possibly conduce to the public or fiscal wealth, are within the scope of the provision.' Emphasis supplied.

Justice Story in his treatise on the Constitution, supra, § 880, again wrote as follows:

'* * * the history of the origin of the power already suggested abundantly proves that it has been confined to 'bills to levy taxes' in the strict sense of the words, and has not been understood to extend to bills for other purposes, which may incidentally create revenue.' Italics ours.

This construction by Judge Story has been expressly approved by the Supreme Court in United States v. Norton, 91 U.S. 566, 23 L.Ed. 454; Twin City Nat. Bank v. Nebeker, 167 U.S. 196, 17 S.Ct. 766, 42 L.Ed. 134; Millard v. Roberts, 202 U.S. 429, 436, 26 S.Ct. 674, 50 L.Ed. 1090. See also The Nashville, Fed.Cas.Co. 10,023, 4 Biss. 188; Hubbard v. Lowe, D.C., 226 F. 135, appeal dismissed without opinion, 242 U.S. 654, 378 S.Ct. 12, 61 L.Ed. 547. The view taken by Judge Story in United States v. Mayo, supra, has been specifically approved by the Montana court in State v. Bernheim, 19 Mont. 512, 49...