State v. Erickson
| Citation | 244 P. 287,75 Mont. 429 |
| Decision Date | 20 February 1926 |
| Docket Number | 5883. |
| Parties | STATE ex rel. v. ERICKSON, Governor, et al. JONES |
| Court | United States State Supreme Court of Montana |
Application by the State of Montana, on the relation of Francis D. Jones against J. E. Erickson, Governor, and others, to restrain them, as members of the State Board of Examiners, from using proceeds of tax levy for certain purposes. On motion to quash. Motion overruled, and defendants enjoined.
Murphy & Whitlock, of Missoula, and George Y. Patten, of Bozeman for appellant.
L. A Foot, Atty. Gen., and S. H. Angstman and C. N. Davidson, Asst. Attys. Gen., for respondents.
Frank Woody, of Helena, amicus curiæ.
Application of the state, on relation of Francis D. Jones, a taxpayer, to have this court, in the exercise of its original jurisdiction, declare that the proceeds of the state tax levy provided for in section 2148, Revised Codes of 1921, to the extent of 1 1/2 mills thereof, shall be used exclusively for the support, maintenance, and improvement of the four teaching units of the University of Montana, and to perpetually enjoin and restrain the defendants, as members of the state board of examiners, from using any part of the same for any other purpose, and from paying certain claims, by the board approved and ordered paid, from the proceeds of such portion of the state levy for the fiscal year beginning July 1, 1925, and ending June 30, 1926.
From this application it appears:
That, prior to the enactment of the above section, the state tax levy was fixed by the provisions of section 9 of article 12 of the state Constitution, as follows:
"The rate of taxation on real and personal property for state purposes, except as hereinafter provided, shall never exceed two and one-half mills on each dollar of valuation; and whenever the taxable property of the state shall amount to six hundred million dollars ($600,000,000.00) the rate shall never exceed two (2) mills on each dollar of valuation, unless the proposition to increase such rate, specifying the rate proposed and the time during which the rate shall be levied shall have been submitted to the people at the general election and shall have received a majority of all votes cast for and against it at such election. * * *"
That in the year 1920 the value of the taxable property of the state had passed the 600,000,000 mark. That certain persons or groups of persons connected with and interested in higher education in the state conceived the idea of increasing the tax levy authorized to 3 1/2 mills, of which 1 1/2 mills should be devoted to the purposes named in a measure to be submitted. All necessary steps were taken for the initiation of such measure under the provisions of section 1 of article 5 of the Constitution, and the measure was duly submitted to the people at the November general election in 1920. The measure received a majority of all votes cast for and against it in said election and became effective December 6, 1920. It now appears as section 2148, Revised Codes of 1921, above referred to, and reads as follows:
"The rate of taxation on real and personal property for state purposes for each year for a period of ten years, beginning with the year 1921, shall be increased one and one-half mills on each dollar of valuation, and the legislative assembly is authorized and empowered to levy a tax for state purposes for each of said years of not exceeding three and one-half mills on each dollar of valuation for state purposes, and all money derived from one and one-half mills of such levy for each of such years shall be appropriated by the Legislative Assembly for the support, maintenance and improvement of the State University at Missoula, the State College of Agriculture and Mechanic Arts at Bozeman, the Montana State School of Mines at Butte, and the Montana State Normal College at Dillon, now comprised in the University of Montana."
The title of the bill resulting in this section reads as follows:
"A bill to enact by the initiative a law to increase the rate of taxation on real and personal property for state purposes one and one-half (1 1/2) mills on each dollar of valuation for a period of ten years, beginning with the year 1921, and to authorize and empower the Legislative Assembly to levy a tax for each year during such period of not exceeding three and one-half (3 1/2) mills on each dollar of valuation, and to appropriate the money derived from one and one-half (1 1/2) mills of such levy for each year during such period for the support, maintenance and improvement of the institutions now comprised in the University of Montana." See Laws 1921, p. 700.
For the fiscal year mentioned above the Nineteenth Legislative Assembly levied a tax of 3 1/2 mills, and, in making its appropriations for said year, appropriated approximately the estimated receipts from 1 1/2 mills thereof to the four institutions named in the section, and in addition thereto appropriated substantial sums from the general fund of the state for the maintenance of the state agricultural experiment station and substations and for the agricultural extension service.
It further appears that in 1925 the state board of examiners declared that, in the judgment of the board, the agricultural experiment station and the agricultural extension service are parts of the agricultural college, and entitled to share in the 1 1/2-mill portion of the state levy, and declared that the expenditures of the combined units of the University of Montana, as the same was, in their judgment, constituted, would be confined to the receipts from such 1 1/2 mills on each dollar of valuation. Pursuant to this resolution, in December, 1925, the board audited and allowed one claim against the experiment station and one against the extension service, and ordered the state auditor to draw warrants therefor, payable out of the said receipts from the 1 1/2-mill levy, which was kept in a separate account by the state treasurer. This application resulted. Further pertinent facts will sufficiently appear from the discussion of the questions raised.
On the filing of the application an order to show cause was issued out of this court. In response to the order the defendants filed herein a motion to quash the same upon the grounds and for the reason stated that the complaint does not state facts sufficient to constitute a cause of action or to entitle the plaintiff to the relief demanded. On January 18, 1926, the matter was fully presented to this court and submitted for its decision.
The Attorney General, appearing for all of the defendants, contends in support of the motion to quash:
(1) That section 2148 constitutes an amendment to section 9, art. 12, above, and is therefore void as a violation of section 9 of article 19 of the Constitution.
(2) That the title to the act contains two subjects and therefore violates section 23 of article 5 of the Constitution.
(3) That the act appropriates money in violation of the constitutional inhibition contained in section 12 of article 12 of the Constitution.
(4) That the agricultural experiment station and the agricultural extension service are parts of the agricultural college, and that all of the institutions named comprise the University of Montana.
(5) That appropriations for the University of Montana are limited to the receipts from the 1 1/2-mill levy, and, as the total appropriations mentioned are in excess of those receipts, the appropriation measures are void as contravening section 12 of article 12 of the Constitution.
(6) That the board of examiners had the power and authority to scale the appropriations and thus limit the expenditures of the University of Montana to the funds available for its support and maintenance.
1. Section 9, article 19 of the Constitution, invoked by defendants, reads in part:
"Amendments to this Constitution may be proposed in either house of the Legislative Assembly, and if the same shall be voted for by two-thirds of the members elected to each house, * * * shall be submitted to the qualified electors of the state for their approval or rejection," etc.
In reserving to themselves power to propose laws, the people expressly excepted "laws for the submission of constitutional amendments" (section 1, art. 5, Constitution), and, had they not done so, the above mandatory direction as to how such amendments shall be proposed and made would be sufficient to prevent the people from amending any section of the Constitution without the same being first proposed in one or the other house of the Legislative Assembly and receiving a two-thirds majority vote in each of said houses before its submission to the people. As this was not done in the instant case and the initiative measure changed the rate of taxation, the Attorney General contends that the act did amend the Constitution, or attempted to do so, and is therefore void.
Had section 9 of article 12 merely provided that the rate of taxation "shall never exceed two and one-half mills; and whenever the taxable property of the state shall amount to * * * $600,000,000.00 * * * the rate shall never exceed two mills," or, in other words, had the Constitution thus fixed a flat rate of taxation, section 9, art. 19, above, would apply, and any attempt on the part of the people to change such rate without invoking the machinery provided for amending the Constitution would have been futile.
No direction as to how an amendment to this provision of the Constitution could be effected was necessary, as section 9 of article 19 above amply provided for all amendments, and had the framers of the Constitution intended to declare that an amendment was necessary in order to change the rate of taxation, they would have merely left the matter silent...
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