State v. Poland
| Decision Date | 19 December 1921 |
| Docket Number | 4898. |
| Citation | 203 P. 352,61 Mont. 600 |
| Parties | STATE EX REL. JUDITH BASIN COUNTY v. POLAND ET AL., COM'RS. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; J. B. Leslie, Judge.
Mandamus on the relation of Judith Basin County, against R. G. Poland and others, Commissioners. From an adverse judgment, relator appeals. Affirmed.
John B Muzzy, of Stanford, and Pray & Callaway, of Great Falls, for appellant.
H. G Bennet, of Great Falls, Edgar J. Baker and W. M. Blackford both of Lewistown, and Norris, Hurd & Rhoades, of Great Falls, for respondents.
On September 2, 1920, Judith Basin county was created from a portion of Cascade county and from a portion of Fergus county. Pursuant to statute, the Governor appointed these respondents members of a board to adjust the indebtedness between the counties, and, the board having completed its labors, made its report, and adjourned, this proceeding was instituted on behalf of Judith Basin county to secure a writ of mandate to compel the board to reassemble and correct certain errors which it is alleged had been committed. The trial court sustained a demurrer and motion to quash, and rendered and had entered a judgment dismissing the proceeding. The relator appealed.
Section 3, art. 16, of our Constitution provides that, when a new county is created, it shall be held to pay its ratable proportion of the then net indebtedness of the old county, the net indebtedness to be determined by deducting from the total indebtedness the value of all property of the old county.
Primarily the question presented is this: What is meant by the terms "property of the county" or "county property" as employed in the Constitution above? These general rules are applicable: (1) The presumption will be indulged that the terms were employed in the sense in which they were used generally at the time the Constitution was adopted (State ex rel. Rowe v. Kehoe, 49 Mont. 582, 144 P. 162); and (2) the terms will be understood in the light of existing statutes continued in force by Schedule 1 of the Constitution (State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392). Upon the creation of Montana Territory, the First Legislative Assembly passed an act which provided:
etc. Bannack's Statutes, p. 498.
That statute continued in force from 1864 until 1895 (Cod. Stat. 1871, p. 433; Comp. Stat. 1887, p. 842), and must be held to have been in contemplation at the time the Constitution was adopted in 1889. As understood at that time, county property was such property as a county held and could sell, but no one would contend that a county could have sold all or any part of a public highway lying within its boundaries, and the reason it could not do so is that a public highway is not owned by the county, though it may be compelled to keep it in repair. In other words, the territorial Legislature and the constitutional convention made clear the distinction between property held by a county in its proprietary capacity and property subject to its jurisdiction as a governmental agency--a distinction recognized by all of the authorities. In 1895 a statute was enacted in substantially the same terms as the Bannack statute above (Pol. Code, § 4230, subd. 10), and that statute has been carried forward and is in effect at the present time (section 2894, subd. 10, Rev. Codes). As the Bannack statute indicated the meaning of the terms "county property" at the time the Constitution was adopted, so the act of 1895 indicates the legislative understanding of the meaning of the terms as employed by the framers of the Constitution, and, while a legislative construction is not binding upon the courts, it is entitled to most respectful consideration (Northern P. Ry. Co. v. Mjelde, 48 Mont. 287, 137 P. 386), and in this instance we adopt it, since it meets our views. From the creation of the territory to the present day every county has had express authority to sell any property belonging to it, or, in other words, the power to sell has at all times been a controlling consideration in determining whether particular property is county property.
With the preliminary question settled we proceed to an application of the definition of "county property" to the facts of this case. By a vote of the qualified electors, Cascade county was authorized to issue bonds to the amount of $408,000, the money derived therefrom to be expended in erecting two bridges over the Missouri river at Great Falls--one at First Avenue North, and the other at Tenth Street North. At the time Judith Basin county was created $98,000 in round numbers had been expended upon the First Avenue bridge and $150,000 upon the Tenth Street bridge, but neither bridge was complete or capable of being used by the public. In adjusting the indebtedness between Judith Basin county and Cascade county, the board refused to treat these unfinished bridges as county property. It is conceded, as it must be, that a complete bridge used by the public is a part of the public highway (State ex rel. Donlan v. Board, 49 Mont. 517, 143 P. 984), and, speaking generally, is not county property, and cannot be considered in adjusting the indebtedness between the old county and the new one (State ex rel. Foster v. Ritch, 49 Mont. 155, 140 P. 731). We are not intimating an opinion as to the validity of section 7, c. 226, Laws of 1919, as it is not involved in this proceeding. It is the contention of the appellant that neither of these incomplete structures is a bridge in the sense that it provides a passageway over the Missouri river, and therefore the public right has not attached, and the...
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