State v. Mills

• Decision Date: 07 December 1927
• Docket Number: 6184.
• Citation: 261 P. 885,81 Mont. 86
• Parties: STATE ex rel. v. MILLS, County Treasurer. SPECIAL ROAD DIST. NO. 8
• Court: Montana Supreme Court

261 P. 885

81 Mont. 86

STATE ex rel. SPECIAL ROAD DIST. NO. 8 v. MILLS, County Treasurer.

No. 6184.

Supreme Court of Montana

December 7, 1927

Appeal from District Court, Stillwater County; H. J. Miller, Judge.

Suit by the State of Montana, on the relation of Special Road District No. 8, against W. M. Mills, County Treasurer of Stillwater County. From a judgment for defendant, relator appeals. Affirmed.

Wood & Cooke, of Billings, for appellant.

L. A Foot, Atty. Gen., I. W. Choate, Asst. Atty. Gen., and P. R Heily, of Columbus, for respondent.

MYERS J.

This is a mandamus suit. The relator, the real plaintiff in interest is a special road district and body corporate, situate in Stillwater county, organized and existing under and by virtue of the provisions of chapter 128 of the Political Code (sections 1652-1675, inclusive, Revised Codes 1921), and it was such at all of the times involved in this litigation. It will be called plaintiff or plaintiff road district.

Plaintiff road district instituted this suit to compel defendant to transfer, on the books of his office, from the general road fund account, to a separate fund and to the credit of plaintiff, certain tax money collected by him. The complaint alleges that, each year, from 1917 to 1924, inclusive, the board of county commissioners of Stillwater county levied an assessment of two mills on all of the property in plaintiff road district; that the levies were made for general road purposes and were in addition to annual levies made at the direction of the board of directors of plaintiff road district; that the levies were put on the books of defendant, and, as a result, the property owners and taxpayers of plaintiff road district paid to defendant the taxes accruing from such assessments, in the aggregate sum of about $7,500, being exclusive of payments made by reason of levies made at the direction of the board of directors of plaintiff road district; that defendant put and kept all thereof in the general road fund; that there has not been expended, upon the order of the board of county commissioners, more than $3,000 thereof; that defendant has been requested to place the remainder thereof to the credit of plaintiff road district in the fund provided by section 1661, Revised Codes 1921, and has refused to do so; that plaintiff road district has no plain, speedy, or adequate remedy at law. The complaint prays for an alternative writ of mandate, commanding defendant to place the funds in a separate fund to the credit of plaintiff road district or to show cause why he should not do so.

Alternative writ of mandate issued and was served. Defendant appeared and answered. No attack was made upon the sufficiency of the complaint. The answer admits the levy of the assessments and collection of taxes and that the proceeds were placed in the general road fund of the county; admits request upon defendant to place the money to the credit of plaintiff road district and refusal thereof; alleges that the levies were made for county general road fund purposes and were applicable generally to all property in the county alike, and that the taxes accruing therefrom were paid into the general road fund of the county; alleges that all of the money so raised has been expended, by order of the board of county commissioners, for general road purposes; alleges that all of the money derived from such levies, during the years mentioned in the complaint, upon property situate in plaintiff road district, and more, was expended on public roads within that district. The answer makes some other and further defenses, involving questions of fact, and prays for judgment for defendant. A reply was filed.

Trial was had to the court, without a jury. Judgment for defendant was rendered and entered. Plaintiff appealed from the judgment and assigns a number of specifications of error. The first thereof is that the trial court erred in entering judgment for defendant. The others relate to the admission of evidence under the issues of fact. We consider now the specification as to the judgment.

That specification raises the question of whether the tax money derived from the levies pleaded should have been placed in the general road fund of the county and expended by order of the county commissioners or should have been placed, in a separate fund, to the credit of plaintiff road district and expended by order of the directors of that district; a question of law. Counsel for plaintiff contend the latter course should have been followed; counsel for defendant, the former. That is the paramount issue raised under the pleadings in the case. The validity of any legislation involved is not attacked or questioned. The issue raises only the question of proper construction of legislation. Plaintiff road district bases this suit not on any objection to the levy of the taxes involved nor any objection to the raising or the collection of them. No objection is made to the levy, raising, or collection of the taxes; that is all passed over, waived. No issue is based on anything of that kind. The suit is wholly a controversy about what should have been done with the tax money after the collection thereof; the disposition thereof; how and by whom it should have been expended. That is all we shall decide in this case. It is all we are called upon or required to decide. Plaintiff wants the money, if any be left; defendant claims it should have gone, as it did go, to the county. We address ourselves to that dispute.

The proper solution of that dispute depends upon the correct construction of sections 1617, 1652, 1659, 1661, and 1662, Revised Codes 1921. Section 1617 is a part of the general highway law of the state and sections 1652, 1659, 1661, and 1662 form a part of the special road district law of the state. Between section 1617, on the one hand, and the other sections mentioned, on the other hand, there may appear to be some conflict; but, if so, we believe it only seeming and not real.

Section 1617, in part, says:

"For the purpose of raising revenue for the construction, maintenance, and improvement of public highways, the board of county commissioners of each county in this state shall annually levy and cause to be collected a general tax upon the taxable property in the county of not less than two mills, and not more than five mills on the dollar, which shall be payable to the county treasurer, with other general taxes. * * * All moneys collected under the provisions of this act shall belong to the general road fund of the county."

Section 1652 is the section which provides for the organization of special road districts. It was amended in 1923 (Laws 1923, c. 141) to read as it now is, and, as amended, it says, in part:

"The purpose of such road districts is to provide for the proper care, supervision, and maintenance of existing public highways within such road districts, it being the intention of this act that county commissioners and county surveyors, or special deputy county surveyors, as herein provided, shall continue to have and exercise the authority now provided by law for them, in laying out, establishing, and constructing new roads and bridges, and repairing such existing roads and bridges in the county as the county commissioner may at any time by resolution determine. * * * Bridges over twelve feet in length shall be known as 'county bridges' and may be constructed by the county. Bridges twelve feet and under shall be known as 'district bridges,' and be constructed by the special road district wherein the same is located. * * * Except as herein limited, all supervision, repair, and maintenance of roads and highways shall be done by and be a charge upon the special road district; provided, that when the county surveyor, or special county surveyor, as provided in this section, may estimate any repair or construction work on any bridge or road to exceed one thousand dollars per mile in cost in any one year, such repair or construction shall be a charge upon the county."

The only change made by the amendment is that it substituted the words "one thousand" (as to the cost of bridge or road) for the words "three hundred," in the original. With that exception, the section is as it was from 1917 to 1923, of the time involved in this litigation.

Section 1659, in part, says:

"The board of county commissioners of any county where special road districts under the provisions of this act are organized, may levy a tax for general road purposes of not to exceed two mills on each dollar of assessed valuation in said special road district, and in addition to such two-mill levy shall levy a tax of not to exceed five mills on each dollar of assessed valuation, if such levy shall be requested by the directors of the special district in writing, on or before the tenth day of August in each year. The said tax shall be levied and collected, as provided by law, each year."

Section 1661, in part, says:

"The county treasurer shall keep each of said funds so collected in a separate fund for each district, each entitled, 'Road fund of special road district No. * * * of the county * * * and state of Montana,' and whenever sums are so collected and placed in each of said respective funds they shall be used in the creation, maintenance, operation, and repair of the public highways and bridges, within the limits of such district, and not otherwise or in any other road district."

Section 1662, in part, says:

"The county treasurer shall pay out money from said fund upon the written warrant of the president of the board of directors of said road district, countersigned and attested by the secretary thereof, which said warrants shall be drawn after verified bills have been regularly allowed at regular monthly...