State ex rel. Great Falls Housing Authority v. City of Great Falls

• Decision Date: 19 March 1940
• Docket Number: 8077.
• Citation: 100 P.2d 915,110 Mont. 318
• Parties: STATE ex rel. GREAT FALLS HOUSING AUTHORITY v. CITY OF GREAT FALLS et al.
• Court: Montana Supreme Court

100 P.2d 915

110 Mont. 318

STATE ex rel. GREAT FALLS HOUSING AUTHORITY v. CITY OF GREAT FALLS et al.

No. 8077.

Supreme Court of Montana

March 19, 1940

Rehearing Denied April 2, 1940.

Original mandamus proceeding by the State of Montana, on the relation of Great Falls Housing Authority, against the City of Great Falls and others to compel the city council of the City of Great Falls to comply with the terms of an agreement.

Writ granted.

J. L Slattery and H. C. Hall, both of Great Falls, for appellant.

C Davidson, of Great Falls, and Arthur Acher, of Helena, for respondent.

J. Wuerthner, of Great Falls, W. D. Rankin, of Helena, S. M. Swanberg, and P.J. Murphy, both of Great Falls, and E. C. Alexander and Stanley Foot, both of Helena, amicus curiae.

MORRIS Justice.

This is an original proceeding wherein the relator prays for a writ of mandate to compel the city council of the city of Great Falls to comply with the terms of an agreement between the city council and the Great Falls Housing Authority wherein the council agreed to zone or re-zone in such lots and blocks as should be purchased by the Housing Authority in the city of Great Falls and to vacate and close certain streets, avenues and alleys in such lots and blocks in accordance with such agreement.

The relator's petition was filed here February 6, 1940, and after due consideration an alternative writ of mandate was issued requiring the city council and certain members thereof to comply with such agreement or show cause before this court to the contrary on the 19th day of February, 1940. On the day set the parties appeared by counsel, and amici curiae were also heard, and after conference participated in by the several counsel and the court, it was found that vital facts involved in the controversy were in dispute, whereupon the court declined to proceed further in the matter until such facts had been determined. By mutual consent the matter was referred to the Honorable C. B. Elwell, district judge of the Twelfth Judicial District, as referee, with authority to hear the evidence and make findings of fact in the premises, and return the same to this court. March 8th the referee's findings of fact were received and filed, and on March 9th counsel for the various parties appeared and extended oral arguments were heard. Briefs were filed and the court has had the matter under consideration.

At the outset we think it well to repeat what this court has often said before: That the wisdom or sound public policy of an act of the legislature does not concern this court, so long as its provisions are found to be within the limitations of the Constitution. It is merely our province to construe the law as we find it. The constitutionality of the Housing Authority Law has been determined by this court (Rutherford v. City of Great Falls, 107 Mont. 512, 86 P.2d 656), and is not questioned in this proceeding.

The findings of the referee appear to be well supported by the evidence and no serious objection is made by the parties to any of them. From our view of the merits of the controversy, much of the evidence adduced and most of the questions of law argued are immaterial.

Briefly summarized, the referee found that, pursuant to the provisions of section 5309.4 of the Housing Authorities Law (Rev. Codes 1935), a petition was filed with the city clerk on or about March 21, 1938, petitioning the city council to direct the city clerk to give notice by publication of a hearing to determine whether there existed the necessity to establish a Housing Authority in Great Falls; the notice was given and the meeting was held April 4, 1938, at the Council Chambers, that being the date for a regular meeting of the council; the hearing was made a special order of business; those present were invited by the mayor to express their views as to the necessity of creating the Housing Authority; some expressed themselves in favor of such a project and some against it. After the discussion the council directed the matter be referred to the Ways and Means Committee of the council, which committee was instructed to take the matter under advisement and report back, and at a regular meeting of the council April 11, 1938, such committee reported recommending that a committee of five persons be selected from certain associations and business concerns in the city to investigate the needs and conditions relating to the subject; such committee was appointed and gave published notice of a hearing to be held at the Junior High School Auditorium April 21, 1938, at which hearing evidence was received pertinent to the purpose of the meeting; the meeting was attended and participated in by a large number of residents and taxpayers of the city and evidence was received to the effect that there were a large number of unsafe and insanitary inhabited dwellings in the city; the committee by a report in writing subscribed by all five of its members submitted its report to the city council April 23, 1938, at which time the council considered the evidence submitted by the report, in addition to the evidence received at the meeting of April 4th, recounted the former steps taken in the premises and adopted a resolution which in part recited "That unsanitary and unsafe dwellings exist" in the city of Great Falls, and "That there is a need of a Housing Authority as prescribed by Chapter 140 of the Montana Session Laws of 1935, Rev. Codes 1935, § 5309.1 to 5309.36.

"That the mayor of said city is hereby notified to appoint five commissioners to act as said Housing Authority and to designate which of these commissioners are to serve the respective terms of one, two, three, four, and five years as provided by law."

The referee's report then presents this significant fact, "That the said resolution was so adopted by the unanimous vote, on roll-call of all the then members of the city council, and the same was thereupon, and on said 9th day of May, 1938, signed by J. E. Swanson, a member of said city council, who was then and there the acting mayor of said city, acting as such in the absence of the defendant Julius J. Wuerthner, Mayor of said city; and at the same time the said resolution was duly attested by and signed by W. P. Harrison, as City Clerk of said city; and that said resolution has never been rescinded or repealed and has ever since been, and now is, in effect."

On or about May 25, 1938, the mayor appointed the five commissioners, who on June 16, 1938, presented to the Secretary of State of the State of Montana an application for incorporation of the Great Falls Housing Authority pursuant to the provisions of section 5309.4, Revised Codes, and on the same date the Secretary of State issued to such commissioners a certificate of incorporation, a copy of which is set out in the referee's report and is followed by the findings: "That ever since said 16th day of June, 1938, the said Great Falls Housing Authority has been, and now is, a public body and a body corporate and politic, with perpetual succession." Immediately after the incorporation of the Great Falls Authority, the city council appropriated $4,000 of city funds for expenses for the first year of the Authority; in August, 1938, the Great Falls Authority applied to the United States Housing Authority to have federal funds earmarked for the Great Falls project. An inspection was made by representatives of the United States Housing Authority of the local situation, and thereafter, in August, 1938, the United States Authority earmarked and set aside over $600,000 for the Great Falls project. In September, 1938, the city made a survey of the conditions of the city which the project was intended to alleviate. November 14, 1938, representatives of the United States Authority represented to the city council the necessity of a co-operation agreement between the city council and the Great Falls Authority, whereupon a motion was made to refer the proposal to the mayor, the city attorney and the judiciary committee of the city council. The mayor signed the co-operation agreement November 16, 1938. No meeting of the city council was held between the date the matter was referred to the mayor et al. with power to act and the time the co-operation agreement was actually signed by the mayor, but at a council meeting held December 5, 1938, the Judiciary Committee as shown by the minutes reported in these words:

"Judiciary Committee on Contract with Great Falls Housing Authority. The Judiciary Committee and City Attorney reported and recommended that the Mayor be authorized to enter into and sign the Cooperation Contract with the Great Falls Housing Authority.

(Signed) Arip, Jaap, Judiciary Committee.

Murphy, City Attorney.

On motion of Alderman Ario, duly seconded, the report of the committee was declared adopted (by unanimous vote.)"

The "by unanimous vote" clause was added to the minutes by the city clerk subsequent to the time the minutes were originally written up, and no other city officer appears to have had any part in making such addition to the minutes. This will be adverted to later under another heading.

The referee then refers to the case of Rutherford v. City of Great Falls, 107 Mont. 512, 86 P.2d 656, filed in this court November 26, 1938, as an original proceeding, in which the constitutionality of the Housing Act and the proceedings taken up to that time by the Great Falls Housing Authority were passed upon. The Housing Acts were upheld as well as all things theretofore done by the local Authority, our decision being announced January 4, 1939. Following that decision the Great Falls Authority after negotiations with the United States Authority obtained the approval of the latter for a loan of $632,000, and the approval of the United...