State ex rel. Morgan v. State Bd. of Examiners

• Citation: 131 Mont. 188,309 P.2d 336
• Decision Date: 03 April 1957
• Docket Number: No. 9786,9786
• Court: United States State Supreme Court of Montana
• Parties: STATE of Montana, ex rel. John D. MORGAN, Relator, v. The STATE BOARD OF EXAMINERS, et al., and A & B Construction Co., and Morrison-Maierle, Inc., Respondents.

Page 336

309 P.2d 336

131 Mont. 188

STATE of Montana, ex rel. John D. MORGAN, Relator, v. The STATE BOARD OF EXAMINERS, et al., and A & B Construction Co., and Morrison-Maierle, Inc., Respondents.

No. 9786.

Supreme Court of Montana.

Submitted Feb. 14, 1957.

Decided Feb. 25, 1957.

As Amended April 3, 1957.

Floyd O. Small, Helena, argued orally for relator.

Forrest H. Anderson, Atty. Gen. (William F. Crowley, Asst. Atty. Gen., and Lloyd J. Skedd, Helena, argued orally), for respondents.

Skedd, Harris & Mufich, Helena, for A & B Construction Co.

Toomey & Hughes, Helena, for Morrison-Maierle, Inc.

ANGSTMAN, Justice.

Plaintiff, a resident and taxpayer of Lewis and Clark County, brought this action originally in this court. He alleges, in the first cause of action in substance, that even though this court in Bryant v. Board of Examiners, Mont., 305 P.2d 340, declared chapter 278, Laws of 1955, 'invalid', yet defendant Board did on February 2, 1957, pass a resolution to issue bonds under the authority of chapter 278 in the sum of $25,000 to pay for the construction of the state capitol driveway and landscaping; that unless restrained the defendant Board will issue the bonds and expend the proceeds for the purpose stated in the resolution.

As a second cause of action, plaintiff alleges that acting under chapter 7, Laws of 1953, defendant Board issued and sold bonds in the sum of $300,000 for the purpose of repairing the state capitol building; that acting under chapter 2, Laws of 1955, it issued and sold bonds in the sum of $100,000 for the purpose of repairing the state capitol building; that acting under chapter 278, Laws of 1955, defendant Board issued and sold bonds in the sum of $100,000 for reconstructing and renovating the state capitol building including roll call voting machines in the house of representative chambers; that from the above-mentioned bond issues defendant Board expended $495,599.04 and has incurred further indebtedness in the sum of $194,012.04 for the purpose of repairing, reconstructing and renovating the state capitol; that all of the bond issues aforesaid are under the above-mentioned statutes made payable from the capital building land grant fund.

The complaint alleges that all of the above expenditures have been made in violation of the Enabling Act, Secs. 12, 17 as interpreted in Bryant v. Board of Examiners and that, in future years, taxes must be increased and funds raised to reimburse the capital land grant fund. It is alleged upon information and belief that the Legislature will appropriate money from the general fund to reimburse the capital land grant fund if this court determines that reimbursement is required by law.

Original jurisdiction is grounded upon the proposition that speedy determination of the questions is necessary to the end that legislative action by the assembly, now in session, may be sought before adjournment, if necessary, and particularly as regards the item of $194,012.04.

Plaintiff seeks a declaratory judgment that not only chapter 278, Laws of 1955, be declared null and void in its entirety, but that chapter 7, Laws of 1953, and chapter 2, Laws of 1955, meet with the same fate; that all sums expended under any of these acts be determined to have been illegally expended from the capital land grant fund and that the amounts are now due and owing to that fund and should be repaid from the general fund.

Defendants have each filed a motion to quash the order to show cause and the defendant Board and defendant Morrison-Maierle Inc. filed a demurrer. Defendants on the hearing elected to stand on the motions and demurrers.

The motions and demurrers challenge the sufficiency of the complaint.

The first question urged at the oral argument on behalf of defendant Board was that the majority opinion in Bryant v. Board of Examiners, Mont., 305 P.2d 340, was and is unsound and should be overruled. If that contention be upheld the other questions disappear.

We are asked to overrule the Bryant decision so far as it holds that the capital land grant fund may not be used for repairing buildings already constructed and for the installation of roll call voting machines because pertinent case law was not brought to the attention of the court which if applied will result in an opposite conclusion.

This court has held that income from the university land grant which the Enabling Act provides shall be used for the support and maintenance of the public schools and institutions, could be used for the erection of buildings. State ex rel. Blume v. State Board of Education, 97 Mont. 371, 34 P.2d 515; State ex rel. Wilson v. State Board of Education, 102 Mont. 165, 56 P.2d 1079. Wyoming has held to the same effect. See Arnold v. Bond, 47 Wyo. 236, 34 P.2d 28.

If the money pledged for the support and maintenance of the institutions may be used to erect buildings, then it is at least persuasive that the converse should be true, viz., money pledged for the erection of buildings may be used for repairing the buildings or for supporting and maintaining the institutions.

But, however this may be, the Enabling Act is sufficiently broad to permit use of the capital land grant fund for the purpose of repairing buildings already constructed.

The Enabling Act must be liberally construed with the view of accomplishing the object sought to be attained. R.C.M.1947, Sec. 12-202; State ex rel. Bookstore v. Potts, 141 Wash. 110, 113, 250 P. 1090, 1091.

In the Potts case the court said:

'To arrive at the intent of Congress as it is expressed in the Enabling Act, the conditions then present should be called to mind. At that time the federal government owned vast quantities of land in the territory which was thinly settled. The resources thereof had not been developed, industries had not been established, transportation was limited, and property values were low. It was, undoubtedly, the purpose of Congress, by making the grant to give to the new state that should come in under the Enabling Act land for public buildings at the state capital sufficient to enable such buildings to be constructed and equipped as an institution without resort to general taxation for any part of that expense. If resort should be made to general taxation for the purpose of raising the $600,000 necessary for the furniture and furnishings of the administrative and legislative building, a thing would be done which Congress sought to avoid. There is no provision in the act relative to acquiring land upon which the buildings could be erected, but, manifestly, this would be a necessary incident. The buildings and the land alone, without furniture and furnishings, would be useless for the purpose intended. The furniture and furnishings of the administrative and legislative building have an immediate and direct bearing upon the purpose for which the lands were granted.'

It should be noted too, that the court in the Potts case, 141 Wash. at page 113, 250 P. at page 1094 had this to say regarding the words 'erecting public buildings' as used in section 12 of the Enabling Act, and "for public buildings" as used in section 17:

'* * * There has been much discussion as to the meaning and limitations of the word 'erect' as used in section 12, but it seems to us that the Congress did not intend a different meaning when it used the words 'erect public buildings' from that when it said in section 17 'for public buildings.' Using the words 'public buildings' and omitting the word 'erect' in section 17, Congress provided that the 100,000 acres therein granted should be in addition to that before granted. 'For that purpose' indicates that Congress had construed the words of section 12 to mean the same as those of section 17, to wit, 'public buildings.' 'That purpose,' found in section 17, apparently referred to the words 'public buildings' as used in that section and not to 'erect public buildings' as used in section 12. Again, in section 17 it is provided that the lands therein granted shall be used exclusively for the purposes therein mentioned, that is, public buildings, and shall be disposed of in such manner as the Legislature of the state may provide.'

These are cases which place a strict interpretation upon the word 'erect' and which hold that it does not contemplate the repair of a building already erected. They are listed in the majority opinion in the Bryant case.

Those cases had to do with authority on the part of public officers to issue bonds payable from tax levies and in such cases it is proper to strictly construe the statutes and to hold that they do not confer implied authority.

The Potts case, in distinguishing that case from the case of Harrington v. Hopkins, 288 Mo. 1, 231 S.W. 263, which latter case is also relied on in the majority opinion in the Bryant case, pointed out this difference in the two cases.

It does not seem reasonable that Congress ever intended that the income from the capital land grant had to be used only for the erection of new buildings when an old one could be repaired at less expense, and which when repaired will serve the intended purpose as effectually as a new building and that is the result of the holding of many courts. See Brown v. Graham, 58 Tex. 254; Cotter v. Joint School Dist., 164 Wis. 13, 158 N.W. 80; Port Huron & N. W. Ry. Co. v. Richards, 90 Mich. 577, 51 N.W. 680; Harrell v. Board of Commissioners of Wilson County, 206 N.C. 225, 173 S.E. 614.

In other words the authority to erect a building for a designated purpose confers implied authority to keep it erected by repairing it.

The words 'erect' and 'construct' are synonymous. State ex rel. Davis v. Barber, 139 Fla. 706, 190 So. 809; State ex rel. City of Chillicothe v. Gordon, 233 Mo. 383, 135 S.W. 929; Butz v. Murch Bros. Const. Co., 199 Mo. 279, 97 S.W. 895.

The authority to erect or construct a building for executive, legislative, and judicial purposes confers implied authority to keep the building...