State v. State Board of Examiners
| Decision Date | 22 November 1909 |
| Citation | 104 P. 1055,40 Mont. 59 |
| Parties | STATE ex rel. BENNETT v. STATE BOARD OF EXAMINERS. |
| Court | Montana Supreme Court |
Original proceeding by the State, on the relation of Willard Bennett against the State Board of Examiners for an injunction. Judgment for defendants.
Gunn & Rasch, for plaintiff.
Albert J. Galen and E. M. Hall, for defendants.
Original application for an injunction. The complaint sets forth the following statement of facts as a foundation for the relief sought: That the defendant, the State Board of Examiners consisting of the other persons joined as defendants, is vested under the state Constitution with the power to examine all claims against the state, except salaries or compensations of officers fixed by law, and to authorize the payment of such claims out of appropriations made by the Legislature for this purpose; that the plaintiff is a resident of the state and the owner of real and personal property within the state, subject to the payment of taxes necessary to provide revenue to maintain the government of the state and its various institutions; that the Eleventh legislative assembly, by the provisions of House Bill No. 315 (chapter 88, p. 118, Laws 1909), levied a tax of 2 1/2 mills for state purposes upon all property subject to taxation for the years 1909 and 1910; that the Legislature also at the same session made appropriations of large sums in anticipation of the revenue to be realized from this levy for the years 1909 and 1910 at the rate so fixed; that the total value of property subject to taxation in the state, as ascertained by the assessment for the year 1908 and adopted by the Legislature for the purpose of adjusting the rate of the levy for the years 1909 and 1910, was $248,774,792; that according to the assessment for the year 1909, this amount increased to $280,401,064, and will be further increased upon assessment for the year 1910 to $300,000,000 or more; that section 12, art. 12, Const., provides that no appropriations shall be made nor any expenditures be authorized by the Legislature, whereby the expenses of the state shall exceed the total amount of tax then provided for; that the appropriations for the year 1909 were based upon a levy of 2 1/2 mills for that year, and the appropriations for 1910 were based upon a levy at the same rate; that a levy of 1 1/2 mills upon a valuation of $300,000,000 or more will so materially affect the revenues for that year that they will not be sufficient to meet the appropriations for that year, and all appropriations in excess of the amount that could be realized from a levy at 1 1/2 mills for that year would be void; that the allowance by the State Board of Examiners of expenditures for the year 1909 for all the various purposes for which the various appropriations were made for that year will so deplete the public funds available for the support of the state government that there will not be a sufficient amount, including the revenue realized from a 1 1/2-mill levy for the year 1910, to pay the usual and necessary current expenses of the government during the fiscal year of 1910, and to complete public buildings and other improvements begun under appropriations from the revenue of 1909; that many of the appropriations were made from the revenues for the year 1909 for the construction of public buildings and other improvements, which must be completed from the revenues of 1910; that on November 8, 1909, the Attorney General of the state officially advised the defendant board that the levy of 2 1/2, mills made by the Legislature in 1909 must continue in force until the next regular meeting of the Legislature in 1911, even though the assessed valuation of the property in the state shall have increased to the amount of $300,000,000 or more during the year 1910, and that the defendant board has authority to permit expenditures out of the appropriations made upon the basis of a 2 1/2-mill levy, without regard to the assessed valuation of property for that year; and that the defendant board under the advice so given threaten to disregard and will disregard the fact that the taxable property in the state will during the year 1910 reach a value of $300,000,000 or more, and, unless restrained from so doing, will proceed to allow claims and permit expenditures largely in excess of the revenues that may be realized from the lawful levy of 1 1/2 mills for the year 1910, in violation of sections 9, 12, art. 12, Const., to the serious detriment of the public business of the state, and to the injury of the plaintiff and all other taxpayers of the state. The prayer is for an injunction to restrain the board and its members from so permitting expenditures to be made that they will exceed the sum that may be legally collected for the maintenance of the state government under the provisions of the Constitution referred to. Upon the filing of the complaint the Attorney General, appearing for the defendants interposed a general demurrer. The application has been submitted upon the questions of law thus raised. The question presented for decision is the following: If the increase in the value of the taxable property in the state should show a total valuation of $300,000,000 or more for the year 1910, may the taxes for that year nevertheless be lawfully collected at the rate of 2 1/2 mills, as fixed by the act of the legislative assembly in 1909, and may the Board of Examiners proceed to audit claims and authorize expenditures upon that basis, notwithstanding such increase?
For ordinary purposes, the Legislature may not convene oftener than once in two years. It can be convened by the Governor at other times for extraordinary purposes. Const. § 6, art. 5...
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