State v. Stewart

• Decision Date: 27 March 1918
• Docket Number: 4202.
• Citation: 171 P. 755,54 Mont. 504
• Parties: STATE ex rel. CAMPBELL et al. v. STEWART, Governor, et al.
• Court: Montana Supreme Court

171 P. 755

54 Mont. 504

STATE ex rel. CAMPBELL et al. v. STEWART, Governor, et al.

No. 4202.

Supreme Court of Montana

March 27, 1918

Proceedings by the State, on relation of Will A. Campbell and others against Samuel V. Stewart, Governor, and others, as members of the State Board of Examiners and others. Demurrer to complaint sustained, and decree of dismissal entered.

Frank Woody, of Missoula, and S. C. Ford, of Helena, for respondents.

SANNER J.

Suit to enjoin the issuance and sale of bonds under the authority of chapter 21, Extra Session Laws of 1918, known as the War Defense Act. The title of the act is as follows:

"An act appropriating the sum of five hundred thousand dollars to be expended by the Montana council of defense in aiding and assisting the United States in the carrying on and prosecuting of the war now existing between the United States and the German and Austrian Empires; designating the purposes for which such appropriation may be expended by the Montana council of defense; authorizing the state board of examiners to issue bonds or warrants in excess of the constitutional limit of indebtedness and to levy a tax upon all property in the state subject to taxation for the purpose of paying the indebtedness so incurred, and the payment of the interest thereon; authorizing the Montana council of defense to make and adopt rules and regulations governing the expenditure of such money and to enter into any and all contracts which the Montana council of defense may deem necessary and proper in connection with the expenditure thereof; and authorizing the state board of examiners to make temporary loans for such sum or sums as may be necessary to meet such appropriation when there is insufficient unappropriated money in the state treasury in the war defense fund for such purpose."

The pertinent provisions of the act are:

"Section 1. The board of examiners of the state of Montana is hereby authorized and empowered to borrow any sum of money in an amount not exceeding five hundred thousand dollars upon the credit of the state of Montana, and there is hereby appropriated five hundred thousand dollars or so much thereof as may be necessary out of the receipts of any such loan or loans so made, under the provisions of this act for the purpose of aiding and assisting the United States in carrying on and prosecuting the war and for repelling invasion and suppressing insurrection.

Sec. 2. The money hereby appropriated may be expended by the Montana council of defense, with the approval of the state board of examiners, by loan, for the purpose of encouraging, aiding and assisting those engaged in agricultural pursuits, in procuring seed, in planting, sowing, raising and harvesting crops, and in procuring labor and assistance necessary for such purposes, for the purpose of encouraging, aiding and assisting farmers and stock growers in procuring live stock and feed for the same, and in raising live stock, and in procuring labor and assistance necessary for such purposes, and for the purpose of transporting and aiding and assisting in the transportation and marketing of crops and live stock, to the end that the food supplies of the nation may be sufficient and adequate for the support of its armies, and for all other purposes public exigencies may require for the support, aid and assistance of the United States in carrying on and prosecution of such war."

"Sec. 7. The board of examiners of the state of Montana is hereby empowered and authorized to issue bonds or warrants in a sum not exceeding five hundred thousand dollars at an interest-bearing rate not to exceed six per cent. per annum and upon such other terms and conditions as such board may deem wise, proper and necessary to obtain funds sufficient to meet any loans or expenditures made under the provisions of this act: Provided, however, that the life of any such bonds issued shall not be greater than five years and may be redeemed at any interest-paying period or within thirty days thereafter."

"Sec. 14. This act and all of its provisions is for the purpose of aiding and assisting the United States in carrying on and prosecuting the war now existing between the United States and the German and Austrian Empires and all other enemies and to repel invasion and suppress insurrection, and for no other purpose."

The complaint avers that pursuant to said act the defendants, proceeding as the state board of examiners, have resolved to issue, have advertised that they will offer for sale, and do threaten to issue and sell bonds of the state in the sum of $500,000, to be dated March 20, 1918, bearing interest at six per cent., interest payable semiannually, said bonds to be due in five years, but redeemable at the option of said board or within 30 days after any interest-bearing period; that the act above mentioned and pursuant to which the defendants are proceeding is void as in contravention of the provisions of sections 23 and 33 of article 5, section 35 of article 5, section 12 of article 12, section 1 of article 13, and section 2 of article 13 of the state Constitution; and that the relators, as taxpayers, will be greatly and irreparably injured and damaged, should said bonds be sold and delivered to the purchasers thereof.

Responsive to an order to show cause, the defendants have appeared, and by general demurrer they join issue upon the question of law now before us, to wit, whether the act is contrary to the Constitution in the respects alleged.

We desire at the outset to express to counsel of record our appreciation of their efforts to aid us in the solution of this problem. We likewise wish to disclaim any view that the Constitution of this state is in abeyance because the nation is at war, or that the Constitution is inadequate to serve the state at such a time, or that the exigency justifies or has called forth any canon of construction not applicable in a season of "profoundest peace." Whatever is legally done by any public agency at any time must be done either with the sanction or without the inhibition of the Constitution; for, like the national charter, it "is a law for rulers and people, equally in war and peace, and *** no doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended" without its authority for any reason. In re McDonald et al., 49 Mont. 454, 143 P. 947, L. R. A. 1915B, 988, Ann. Cas. 1916A, 1166; Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281. So premising, we come to the matter in hand.

1. The respects in which it is alleged that sections 23 and 33 of article 5 have been contravened are:

"That said act contains more than one subject, and each of the subjects is not clearly expressed in the title," and "said act appropriates money, but such appropriation is not made by a separate bill embracing one subject."

Upon argument these objections were abandoned, and we think properly so, because they are groundless. Assuming that the act is one of appropriation, such appropriation is for only one subject, clearly indicated in both the title and the body of the act, namely, "to assist the United States in carrying on and prosecuting the war now existing between the United States and the German and Austrian Empires." This is a particular purpose, defined as well as it can be. The other causes of the title and the other provisions of the act have to do with ways and means for carrying out such purpose; they are not separate purposes, and thus do not render the act obnoxious to the sections referred to. State ex rel. Hay v. Alderson, 49 Mont. 387, 142 P. 210, Ann. Cas. 1916B, 39; Hill v. Rae, 52 Mont. 378, 158 P. 826, L. R. A. 1917A, 495, Ann. Cas. 1917E, 210.

2. Nor, with equal propriety, do the relators place any reliance upon the alleged departure from section 35 of article 5. That section forbids appropriations for "charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state." This is manifestly not such an appropriation, and the mere fact that the moneys may be effective through individuals, associations or corporations in certain ways does not make it so. State ex rel. Cryderman v. Wienrich, 54 Mont. 390, 170 P. 942.

3. The same considerations avail to clear the act of any repugnance to section 1 of article 13. This is primarily not an act "to authorize the state to loan, give or extend its credit to or in aid of individuals, associations or corporations," nor "to make donations or gifts to individuals, associations or corporations," nor "to loan state funds to or in aid of individuals, associations or corporations," nor to authorize the "use of public funds or moneys of the state for private...