State ex rel. Normile v. Cooney

• Decision Date: 10 July 1935
• Docket Number: 7464.
• Citation: 47 P.2d 637,100 Mont. 391
• Parties: STATE ex rel. NORMILE et al. v. COONEY, Governor, et al.
• Court: Montana Supreme Court

47 P.2d 637

100 Mont. 391

STATE ex rel. NORMILE et al. v. COONEY, Governor, et al.

No. 7464.

Supreme Court of Montana

July 10, 1935

Original proceeding by the State of Montana, on the relation of John Normile, on his own behalf and on behalf of all others similarly situated, and another against F. H. Cooney, as Governor of the State of Montana, and as Chairman of the State Water Conservation Board, and others to enjoin the State Water Conservation Board from proceeding with the construction of the Rock Creek Project. On respondents' motion to quash.

Motion sustained, and proceeding dismissed.

John G Skinner, of Red Lodge, and Clyde McLemore, of Helena, for relators.

Raymond T. Nagle, Atty. Gen., C.J. Dousman, Asst. Atty. Gen., and Edwin S. Booth, of Glasgow, for respondents.

PER CURIAM.

This is an original proceeding seeking to enjoin the state water conservation board from proceeding with the construction, in Carbon county, of the "Rock Creek Project," consisting of an irrigation and flood control project pursuant to an application of the state water conservation board, and under the terms of a "loan-grant agreement" with the United States of America, as authorized by the provisions of chapter 35 of the Extraordinary Session of 1933-34, and Chapters 95 and 169 of the Laws of 1935.

Chapter 95, supra, amends certain sections of chapter 35 and adds certain additional sections. Chapter 169 is an act supplemental to the other chapters.

Section 1 of chapter 35 declares that water conservation is a state purpose. Section 2 defines the terms used in the act; the only one of which necessary here to notice is found in subdivision (e) thereof, providing as follows: "The word 'project' shall mean any one of the works hereinabove defined or any combination of such works which are physically connected or jointly managed and operated as a single unit." Section 3 provides for the creation of the "State Water Conservation Board," its organization and compensation. The purpose of the act is declared in section 5, as amended by Laws 1935, c. 95, § 2, as follows: "The purpose of this Act is to meet, so far as possible, a state-wide need for the conservation and use of water, through the construction and operation of projects designed for such purposes. The board is therefore empowered to make such investigations as may be necessary to plan and carry out a comprehensive state-wide program of water conservation. The projects to be finally constructed shall qualify as parts of such state-wide program and shall be approved by the board upon the showing of their prospective ability to meet through the sale of water or other services, the cost of operation, maintenance and repair and the amortization of the cost of the construction; provided, however, that the failure of the board to determine such prospective ability of a project shall in no way affect the validity or enforceability of any of such bonds or of the trust indenture, resolution or other security therefor."

It is provided by chapter 95 that the board is a public corporation deemed to be an agency of the state.

The plan, briefly summarized, is as follows: The board will investigate the feasibility of the development of various water conservation projects. If the estimated revenues from any project are sufficient to repay the cost of the project, then the board may proceed to construct the necessary works with the proceeds of the bonds of each project and any grants obtained from the United States of America or elsewhere. All money obtained by loan is to be repaid from the revenues derived from the sale of water and other services in the operation of the project. It is expressly provided that these bonds are not to be the obligation of the state of Montana, and must so specify on their face. The board is authorized to pledge the revenues to secure the repayment of loans, and to mortgage the property acquired on the project to secure their repayment, in its discretion. Under the terms of the law, any money expended by this board in the investigation and construction of a project is to be repaid from the proceeds of the loan. All bonds are to be issued on each project in a separate series. Numerous provisions are found in the acts providing for the creation of various funds in the administration of the act. The board is given special authority to contract with and borrow from the United States and its governmental agencies.

Relators' petition discloses that an application for a loan of $826,000, and a grant of 30 per cent. thereof, has been made. Also a loan and grant agreement has been executed between the water conservation board and a governmental agency, the bonds to be payable from the revenues of the project as sole security for the loan. The rates and charges to be collected from the sale of water and services are determined by a contract between the conservation board and the Rock Creek Water Users' Association. The water conservation board, under the terms of the loan and grant agreement, is to retain ownership and control of the project so long as the bonds are outstanding. Copies of these various contracts are appended to the petition.

It is asserted in the petition that the above legislative acts in certain particulars are in conflict with numerous provisions of our Constitution; that the provisions of chapter 169 impliedly repeal certain provisions of chapters 35 and 95, and that certain of the contracts were irregularly executed. We will notice these various contentions separately in our discussion throughout this opinion. The cause is submitted for decision upon a motion to quash challenging the sufficiency of the petition as to substance.

The first question raised is one of statutory construction; it being charged that: "Chapter 169, Laws of Montana 1935, repeals by implication the provisions of said chapter 95 of the same session, and of chapter 35, passed at the previous session, in so far as the latter Acts purport to authorize the State Water Conservation Board to pledge as security for its bonds the gross revenues of a project financed with the proceeds thereof, to deposit with a trustee for such bondholders all monies collected under a water marketing agreement and water purchase contracts in connection therewith, to create a special fund for monies reserved for bond principal, interest and redemption and for future operating costs." Had it been the intention of the Legislature to do away with the provisions mentioned and with which it had dealt during the very session in which it enacted chapter 169, it would seem that that body would have expressly so declared and not left the matter to implication. While it is true that, if one statute conflicts with a portion of another so as to exhibit an inconsistency, the inconsistent portion of the previous statute cannot stand and it is said to be repealed by implication, such repeals are not favored by the courts, and, where the two are passed at the same session of the Legislature, the presumption against repeal is strong. In considering such a charge as this, the true intention of the Legislature is to be ascertained, if possible, and followed, and, before the doctrine of implied repeal is applied, the court should make every effort to reconcile the statutes and render every provision of each effective. State ex rel. Nagle v. Leader Co., 97 Mont. 586, 37 P.2d 561.

To determine the intention of the Legislature, the history of the legislation may be resorted to. Melzner v. Northern Pacific Ry. Co., 46 Mont. 162, 127 P. 146. The state water conservation board was created by chapter 35, above, and therein it was provided for the construction, operation, and maintenance of a system of works for the conservation, development, storage, distribution, and utilization of water. The act contemplates the inclusion of all projects undertaken and carried out by the board in the one all-comprehensive "system." These projects, undertaken as public works, are, under this act, to be financed "wholly by means of or with the proceeds of revenue bonds *** and other funds provided under the authority of this Act." Section 5. While the act provides for revenues to be derived from the projects, the only "other funds" which might go to augment the construction fund of a project are grants from the United States (section 10) or appropriations or donations (section 16). No provision was made in the act for securing federal aid for the projects contemplated, and the act provided but the single method of financing, i. e., by the sale of revenue bonds.

Later, some agreement was reached under which the board might secure federal aid in the construction of such works, but it was found that further legislation would be necessary if the state wished to avail itself of government beneficence. Governor Cooney therefore addressed a message to the Twenty-Fourth Legislative Assembly in which he called attention to this fact, and presented therewith three bills which the authorities in Washington deemed sufficient to accomplish this purpose. These bills were enacted and now appear as chapters 95, 96, and 169 of the Laws of 1935.

Section 5 of chapter 35 was amended by section 2 of chapter 95, by dividing the provisions as to financing at the point where stars appear in the quotation above and there inserting the alternative provision, "or of a grant to aid in financing such construction from the United States of America or any instrumentality or agency thereof." The use of the disjunctive conjunction "or" expresses an alternative choice or election to be exercised by the board and renders that appearing in the clause following inapplicable to the subject-matter of the clause preceding the conjunction. See 2 Words and Phrases, Fourth...