State Highway Commission v. West Great Falls Flood Control and Drainage Dist., 11745

• Decision Date: 30 April 1970
• Docket Number: No. 11745,11745
• Citation: 468 P.2d 753,27 St.Rep. 320,155 Mont. 157
• Parties: The State of Montana, Acting by and through the STATE HIGHWAY COMMISSION of the State of Montana, Plaintiff and Appellant, v. The WEST GREAT FALLS FLOOD CONTROL AND DRAINAGE DISTRICT et al., Defendant and Respondent.
• Court: Montana Supreme Court

Page 753

468 P.2d 753

155 Mont. 157

The State of Montana, Acting by and through the STATE

HIGHWAY COMMISSION of the State of Montana, Plaintiff and Appellant, v. The WEST GREAT FALLS FLOOD CONTROL AND DRAINAGE DISTRICT et

al., Defendant and Respondent.

No. 11745.

Supreme Court of Montana.

Submitted March 9, 1970.

Decided April 10, 1970.

Rehearing Denied April 30, 1970.

Robert L. Woodahl, Atty. Gen., Nicholas A. Rotering and Donald D. MacPherson, Helena, James, Crotty & Fopp, Gene I. Fopp, argued, Great Falls, for appellant.

Swanberg, Koby & Swanberg, Randall Swanberg, argued, Great Falls, for respondent.

HASWELL, Justice.

The State Highway Commission filed a declaratory judgment action in the district court against the West Great Falls Flood Control and Drainage District seeking a determination of whether it could be assessed on its highways within the District for flood control improvements contemplated by the District and if so, whether State highway trust funds could be used for this purpose in view of the anti-diversion amendment to the State constitution. The district court of Cascade county, Honorable B. W. Thomas, district judge presiding without a jury, entered judgment that the State Highway Commission was subject to assessment by virtue of its ownership of property within the District; that payment of such assessment would not violate the State Constitution; and ordered the State Highway Commission to pay such assessment when the amount thereof was determined in subsequent proceedings. From this final judgment, the Commission appeals.

Defendants and respondents are the West Great Falls Flood Control and Drainage District, hereafter called the District, and the three commissioners thereof, James E. Howard, Chairman, Leo J. Lesh, and Leonard Bobbett. The District is a corporate body politic formed under the provisions of sections 89-2201 to 89-2825, inclusive, R.C.M.1947 as amended, for the purpose of constructing and maintaining levees, dikes, and other facilities for flood control in and around parts of the west side of Great Falls, Montana and outlying areas. It was created by order of the district court of Cascade county on March 22, 1967. The boundaries thereof were established by order of the district court on August 28, 1967.

The District encompasses real property with improvements thereon owned or under lease by the Commission, said property consisting of land approximating 300 acres of State highway right-of-way and 8 miles of improvements described as follows:

Interstate 15: 218.82 acres of right-of-way and 3.2 miles of improvement.

Vaughn Highway (Primary Highway): 55.94 acres of right-of-way and 3.18 miles of improvement.

Sixth Street Southwest (Primary Highway): 8.59 acres of right-of-way and .76 miles of improvement.

Tenth Avenue South (Primary Highway): 14.56 acres of right-of-way and .825 miles of improvement.

The West Great Falls Flood Control project was designed by the United States Army Corps of Engineers to protect the properties within the boundaries of the District from the effects of a recurrence of floods of the severity of the 1953 flood, the 1964 flood, and a 'design flood' having a peak flow of 65,000 cubic feet per second. The possibility of recurrence of a flood equal to the flow discharge of the 1964 flood is once every 160 years and the possibility of the design flood occurring is once during the next 250 years. It is contended by the District that the levee system will provide protection of lands and properties within the boundaries of the District from floods of the magnitude of the 1953 flood, the 1964 flood and a design flood which would create a flood level of approximately one to two feet higher than those of prior floods.

The lands to receive benefits within the District were categorized into three classifications, namely, class A-those lands inundated by either the 1953 or 1954 floods, Class B-those lands that would be subject to inundation by the design flood, and Class C-those lands which would be above the elevation of the design flood but which would receive benefits such as access, protection of utilities and benefits to the general health and welfare.

On December 23, 1968, the District through its acting Commissioners gave notice to the Highway Commission assessing benefits and costs therefor to those portions of state highways located within the exterior boundaries of the District; the costs amounting to $205,047.68.

On December 30, 1968, the District Commissioners filed their third and final report with the court which report, among other things, requested the Court to approve and confirm said assessment. Thereafter, the District gave notice of hearings on remonstrances and other matters pertinent to the third and final report.

By remonstrance dated January 29, 1969, the State Highway Commission objected to confirmation of said assessment, contending, among other things, that the proposed assessment is in violation of Article XII, Section 1b, of the Constitution of the State of Montana, commonly referred to as the anti-diversion amendment.

Hearing on the third and final report began February 13, 1969, before Judge Thomas, and on February 21, 1969, the district court, upon determination that questions pertaining to constitutional issues were of paramount importance, indicated that the constitutional question developed by the proposed assessment against the State highway real property and improvements thereon should be a matter of separate hearing.

On April 17, 1969, for the purpose of segregating the issue of constitutionality from the main proceedings, the Highway Commission filed the instant declaratory judgment action pursuant to sections 93-8901 through 93-8916, R.C.M. 1947, asking the district court to declare that payment by the Highway Commission of the proposed assessment would be illegal and unconstitutional for the reason that the expenditure of funds in payment of the assessment would be for purposes other than those enumerated in Article XII, Section 1b of the State Constitution; that is for purposes other than 'cost of construction, reconstruction, maintenance and repair of public highways, roads, streets and bridges * * *'.

Pursuant to stipulations entered into between the parties hereto and with the authority and concurrence of the district court, the declaratory judgment action was consolidated with the pending West Great Falls Flood Control and Drainage District proceedings and a separate trial under Rule 42(b) of the Montana Rules of Civil Procedure was ordered on all factual and legal questions bearing on the constitutional issue.

The segregated cause thereafter came to trial in the district court before Judge Thomas, sitting without a jury, on May 26, 1969; evidence was introduced by all parties, and the matter was taken under advisement on May 28, 1969. The trial court's findings of fact and conclusions of law were filed June 10, 1969, the court holding that State highway facilities within the District would be subject to damage and cleanup operations in one degree or another in the event of occurrence of the design flood; that the construction of levees contemplated by the District would prevent this damage and cleanup expenses thereby avoiding costs of construction, reconstruction, maintenance and repair; and that this constitutes 'preventive maintenance' and falls within the purposes for which highway funds may be expended under Article XII, Section 1b of the Montana Constitution (the anti-diversion amendment).

The court specifically concluded that the prevention of future costs of reconstruction, repair and maintenance is preventive maintenance and within the definitions contained in Article XII, Section 1b; that the Highway Commission is not prevented by the Constitution of Montana from paying an assessment of the nature contemplated by the flood control district, and that the Highway Commission is specifically authorized by statute to make such a payment.

Judgment was entered June 13, 1969, in accordance with the foregoing findings and conclusions. The Highway Commission filed notice of appeal from this judgment on August 5, 1969.

The parties list six issues for review upon appeal. All are encompassed within two basic issues: (1) Can the State Highway Commission be assessed for flood control benefits by the District?, and (2) Can State highway trust funds be used to pay such assessment?

Plaintiff's position on the first issue is simply that there is no statutory authority for assessing the State or its agent, the State Highway Commission, for flood control and drainage benefits. Plaintiff points out that the assessing statute, section 89-2330, R.C.M. 1947, specifically makes counties, cities and towns subject to assessment and by application of the rule of statutory construction embodied in the Latin phrase 'expressio unius est exclusio alterius' (the express mention of one thing implies exclusion of similar things not mentioned), authority to assess the State or its agency is withheld. Additionaly, plaintiff points out, the express language of the assessing statute obligates the county through which the public highway runs for payment of these assessments.

On the other hand, defendants contend that the State and its agency are subject to assessment under the same assessing statute as the owner of land benefited by the contemplated flood control and drainage project. Defendants further argue that since the State as owner of the land has not been exempted from assessment, since the State is specifically authorized to pay the assessment out of the common school fund under section 89-2349, R.C.M. 1947, and since 'all political subdivisions of the state of Montana, all agencies and departments of the state government' are authorized to 'expend funds for, and enter into agreements with drainage districts and any agencies of the United States government' for flood prevention under federal law...