State v. Brannon
| Decision Date | 14 December 1929 |
| Docket Number | 6587. |
| Citation | 283 P. 202,86 Mont. 200 |
| Parties | STATE ex rel. v. BRANNON et al. PUBLIC SERVICE COMMISSION OF MONTANA et al. |
| Court | Montana Supreme Court |
Rehearing Denied Dec. 31, 1929.
Original proceeding by the State, on the relation of the Public Service Commission of Montana and others, members of the Public Service Commission, for writ of mandamus to be directed to R. E. Kirk, as State Chemist and head of the State College of Agriculture, opposed by Melvin A. Brannon as Chancellor of the University of Montana, and others. Writ granted.
L. A Foot, Atty. Gen., L. V. Ketter, Asst Atty. Gen., and Francis A. Silver, of Helena, for relators.
Howard Toole and Murphy & Whitlock, all of Missoula, and W. M Johnston, of Billings, for respondents.
This is a proceeding in mandamus, brought by the Public Service Commission to compel R. E. Kirk, as state chemist, to comply with the provisions of chapter 109 of the Laws of 1927, which it is alleged he has refused to do following orders given him by his superiors, the state board of education, the chancellor of the University of Montana, and the executive board of the State College of Agriculture and Mechanic Arts all of whom are made parties respondent.
Chapter 109 relates to the licensing of those who sell gasoline and other petroleum products for use in motor vehicles or in internal combustion engines (section 1), and provides that each dealer shall pay a license fee of $1 for each separate place of business where he transacts business, and one additional dollar for each gasoline pump or vending machine in excess of one used at his place of business (section 2). These fees are paid into the state gasoline inspection fund, of which the state treasurer has the custody, and which he is obliged to keep separate from other funds under his control; and "all of the expenses incurred in the administration of this Act, or in enforcing the terms hereof shall be paid out of said fund in the same manner as other claims against the State of Montana." Section 3.
The Public Service Commission is required to secure the proper enforcement of the act, to procure for inspection and cause to be inspected suitable samples of the commodities enumerated in the statute, and to make all necessary rules and regulations not inconsistent with the terms of the act for procuring and transmitting the samples and reporting the results of the analyses, and to inform the county attorney of the proper county of all cases of violation of the law. Section 4. The act provides that certain standards of quality and strength of gasoline and kerosene kept or offered for sale shall be maintained. Section 5, 6.
Section 9 provides:
Section 10: "All analyses herein directed to be made by the state chemist may, in the discretion of such state chemist, be made by any competent assistant acting under his supervision; provided, however, that such assistant shall be appointed under the rules and regulations of the State Board of Education."
Section 11: "It shall be the duty of the state chemist or his assistants to attend and give evidence in all prosecutions instituted for the enforcement of this Act, and such chemist or assistant shall receive the same fees and mileage for attendance in such cases as are prescribed by the laws of the State of Montana to be paid to witnesses in courts of record."
Seventy-five hundred dollars was appropriated for carrying out the provisions of the act. Section 21. The Legislature of 1929 did not make any appropriation for that purpose.
During the month of August, 1929, the commission procured samples of gasoline from different dealers, which it caused to be transmitted to the state chemist with request for analyses, but the chemist refused to make any analysis. Upon the theory that the law imposes a legal duty upon the chemist which he refuses to discharge, the commission brought this proceeding. The respondents answered saying that the chemist "is now and at all times since the 28th day of August, 1929, has been ready and willing to analyze and test the said samples of gasoline and make reports thereon" to the commission, provided that funds for the payment of the actual cost of such analyses, exclusive of compensation and fees to the chemist, be furnished by the commission from a lawful source. Respondents pleaded that, following the passage and approval of the act, the commission submitted to the head of the department of chemistry of the college samples of gasoline and other petroleum products for analysis, and that he willingly and promptly, and with the consent of all of the respondents, made the analyses and reports as requested; that after the passage of the act and until August 28, 1929, the commission paid the actual cost of the analyses, exclusive of the compensation and fees to the head of the department of chemistry, from the state gasoline inspection fund, but on or about the 28th of August, 1929, the commission refused and still refuses to cause or permit the payment of the actual cost of the analyses, or any portion thereof to be made from the state gasoline inspection fund, or any other fund available for such purpose; that neither the state chemist nor any of the respondents have any funds from any lawful source for the payment of the actual cost of the analyses demanded by the commission, and allege at considerable length that to compel the department of chemistry to pay the expenses of the analyses would be violative of the Constitution, provisions of which are pleaded. They allege that whenever the commission shall lawfully provide funds for the actual cost of the analyses, exclusive of compensation and fees to the head of the department of chemistry of the college, he will willingly cause the analyses to be made; that the entire time of the state chemist, who is head of the department of chemistry of the college, is taken up with duties pertaining strictly to the college, and that it is necessary for him to employ an assistant to make the analyses.
It is not necessary to digest the pleadings further. We gather from the stipulation filed, the exhibits, and the statements of counsel seemingly agreed to, that it has been necessary for the head of the department of chemistry to employ an assistant, regardless of the duties imposed by chapter 109. In other words, the assistant was a member of the staff in the department of chemistry.
The forerunner of chapter 109 was chapter 203 of the Laws of 1919, wherein the state sealer of weights and measures was designated ex officio state oil inspector, subject to the supervision and control of the state board of examiners (section 2, Laws of 1919, p. 481), and provision was made for testing the quality of gasoline and kerosene, standards and specifications of which were prescribed (sections 6 and 7, pp. 483, 484). Section 8 of the act, making the head of the department of chemistry in the State College state chemist, and prescribing his duties, was re-enacted (section 9) in the 1927 act without change, except that the words "Public Service Commission of Montana" were substituted for "State Oil Inspector." Sections 12 and 13 of the 1919 act were re-enacted without change as sections 10 and 11 of the 1927 act. The 1919 act created the state gasoline inspection fund and provided: Section 16. The sum of $10,000 was appropriated for the state gasoline inspection fund for the fiscal year ending February 28, 1920, and a like sum for the fiscal year following.
Pursuant to the law the college authorities proceeded to equip a state oil laboratory which was operated continuously from early in 1919 until April 1, 1925, when, because the state gasoline inspection fund was depleted, the work ceased upon the order of the secretary of state. Throughout this period a portion of the salary of an assistant of the state chemist was reckoned and paid as a part of the expense of the state chemist in making the analyses. After the enactment of chapter 109 the Public Service Commission forwarded samples to the state chemist who caused the analyses to be performed without question until June 19, 1929. During this later period a portion of the salary of an...
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