State ex rel. Helena Housing Authority v. City Council of City of Helena

• Decision Date: 10 May 1939
• Docket Number: 7973.
• Parties: STATE ex rel. HELENA HOUSING AUTHORITY v. CITY COUNCIL OF CITY OF HELENA et al.
• Court: Montana Supreme Court

90 P.2d 514

108 Mont. 347

STATE ex rel. HELENA HOUSING AUTHORITY v. CITY COUNCIL OF CITY OF HELENA et al.

No. 7973.

Supreme Court of Montana

May 10, 1939

Original proceeding in mandamus by the State of Montana, on the relation of the Helena Housing Authority, against the City Council of the City of Helena and others.

Writ granted.

Lester Loble and C. N. Davidson, both of Helena, for relator.

John W Mahan, of Helena, for respondents.

ANGSTMAN Justice.

This is an original proceeding for a writ of mandamus. The question involved is whether the Helena Housing Authority can compel the respondents to appropriate money to the Authority to pay the preliminary expenses of the Authority for the first year following its incorporation. The facts out of which the controversy arises are these:

The city of Helena, through the city council, acting in accordance with sections 5309.1 et seq. of the Revised Codes and after a petition signed by the requisite number of signers was presented to it, called a meeting for the purpose of considering the petition, and noticed it for hearing on the 15th day of June, 1938. After hearing evidence for and against the creation of the Authority, the city council adopted a resolution determining that unsafe and insanitary inhabited dwelling accommodations exist in the city of Helena, and that there is a lack of safe and sanitary dwelling accommodations in the city and surrounding area necessitating the creation of the Authority. The mayor then appointed commissioners of the Authority, and on October 1, 1938, the Secretary of State issued to the commissioners a certificate to the effect that the Helena Housing Authority was a duly incorporated public body. The Authority then, acting in cooperation with the city, made application to the federal government for a grant of money for the housing project. Three hundred thousand dollars were set aside and earmarked by the federal government for the project in Helena pending the making and approval of an application for the allotment by relator.

The Authority employed certain persons and firms to facilitate the preliminary work necessary to make formal application for the money to the federal government. The respondents, representing the city of Helena, entered into a written cooperative agreement with the Authority, the contents of which need not here be recited except to say that the city agreed to eliminate unsafe and insanitary dwelling units of a number equal to the number of new low-rent units to be provided by the Authority. On February 13, 1939, the Authority by resolution asked the city to estimate the amount of money necessary for the preliminary expenses, and to pay such amount to the Authority. This the city has refused to do, and the Authority seeks by this proceeding to compel it to do so.

The Authority contends that by virtue of section 5309.31 it is mandatory on the part of the city to comply with its request. This section is as follows: "Immediately after the incorporation of the housing authority, the council or other governing body of the city included within the territorial boundaries of such authority shall make an estimate of the amount of money necessary for the administrative expenses and overhead of the housing authority during the first year following the incorporation of such housing authority, and shall appropriate such amount to the authority out of any moneys in the city treasury not appropriated to some other purposes, and shall cause the moneys so appropriated to be paid the authority as a donation. In addition thereto, the city and any municipality located in whole or in part within the boundaries of a housing authority shall have the power annually and from time to time to make donations or advances to the authority of such sums as the city or municipality in its discretion may determine. The authority, when it has money available therefor, shall reimburse the city or municipality for all advances by way of loan made to it."

The city based its refusal to make the appropriation upon the ground that "the city has no funds appropriated for that purpose, and no funds not otherwise appropriated." The city takes the position that its duty to make an appropriation is limited by the phrase found in section 5309.31, "out of any moneys in the city treasury not appropriated to some other purposes." It contends that, if it has no unappropriated moneys in its treasury, it has no duty under that section.

Relator, on the other hand, takes the view that the quoted phrase is simply descriptive of the appropriation which the city is bound to make, i. e., as is customary with appropriations generally, it too must be made of moneys not otherwise appropriated. Relator's contention in this respect must be upheld. The city normally never has any money in its treasury not appropriated, because funds raised by the city are provided in accordance with a budget, including the estimated expenditures and a levy made sufficient to cover them. Sec. 5083.1 et seq., Rev.Codes. We cannot believe that it was the intention of the legislature to pass the Act--sections 5309.1 to 5309.36--to meet an emergency, and then to make its operation depend upon whether the city had surplus funds not otherwise appropriated, particularly where, as here, the city itself determined the necessity for the creation of the Authority and exercised its discretion with relation thereto.

Section 5083.8, Revised Codes, in part provides: "Upon the happening of any emergency caused by fire, flood, explosion, storm, earthquake, epidemic, riot or insurrection, or for the immediate preservation of order or of public health, or for the restoration of a condition of usefulness of any public property the usefulness of which has been destroyed by accident, or for the relief of a stricken community overtaken by calamity, or in settlement of approved claims for personal injuries or property damages, exclusive of claims arising from the operation of any public utility owned by the municipality, or to meet mandatory expenditures required by law, the council may, upon adoption by unanimous vote of all members present at any meeting, the time and place of which all members shall have had reasonable notice, of a resolution stating the facts constituting the emergency and entering the same upon their minutes, make the expenditures or incur the liabilities necessary to meet such emergency without further notice or hearing."

Moneys required to be expended under section 5309.31 constitute "mandatory expenditures required by law" within the meaning of section 5083.8. The discretion which the council has under section 5083.8 relates to the matter of declaring an emergency and does not give the city discretion in meeting mandatory expenditures required by law. When the city created the Authority it exercised its discretion on the matter of an emergency, and there is no occasion to again declare an emergency under section 5083.8. When the city created the Authority there then arose the obligation to make an appropriation, and there came into being, by operation of law, the duty to make the expenditure contemplated by section 5309.31. It is immaterial whether there was a unanimous vote declaring an emergency necessitating the creation of the Authority, because a unanimous vote on that question is unnecessary under the law. Section 5309.4 being later in point of time than section 5083.8, the former controls as to the...