State v. Stewart
| Decision Date | 08 May 1920 |
| Docket Number | 4577. |
| Citation | 190 P. 129,58 Mont. 1 |
| Parties | STATE EX REL. LYMAN v. STEWART, GOVERNOR, ET AL. |
| Court | Montana Supreme Court |
Original application for injunction by the State, on relation of E. F Lyman, against Samuel V. Stewart, Governor, and others. Dismissed on demurrer.
Pray & Callaway, of Great Falls, for relator.
S. C Ford, Atty. Gen., and Frank Woody, Asst. Atty. Gen., for respondents.
This is an original application for an injunction to restrain the respondent board of examiners from issuing and selling on behalf of the state bonds to the amount of $250,000 in excess of the constitutional limit and over and above any bonded indebtedness heretofore incurred by the state, authorized by chapter 150 of the Laws of the Fifteenth Legislative Assembly, supplemented by chapter 204 of the Laws of the Sixteenth Legislative Assembly, to procure funds for purchasing or building a terminal grain elevator, with the necessary equipment, at Great Falls, Mont., to be controlled and operated by the state and used for the storage and marketing of grain purchased in Montana. Chapter 150 in terms provides for the submission to the qualified electors of the state, at the following general election, of the question of the issuance of such bonds. So far as pertinent here, the following is an epitome of its provisions:
Section 1 authorizes the state board of examiners to issue bonds in the name of the state of Montana to the amount of $250,000 for the purpose above specified.
Section 2 provides that the bonds shall be issued in denominations of $1,000 each, that they shall become due in ten years from the date of their issuance, redeemable and payable, however, at the option of the state at any time after five years from the date thereof at any interest paying period, and that they shall bear interest at a rate of not to exceed 5 per cent per annum, payable semiannually on June and December 15 of each year, at the office of the state treasurer.
Section 4 provides:
Section 5 directs the county assessors of the several counties of Montana, commencing with the year in which the bonds are issued and continuing so long as such bonds, or any part of them, or any interest thereon, shall remain unpaid, shall designate upon the assessment roll the lands subject to the tax.
Chapter 204 above (Laws of 1919, p. 486), provides for the appointment of a board of managers for the elevator, prescribing their powers and duties, and providing for the location, construction, maintenance, and operation of the elevator, and for the issuance of bonds by the state board of examiners under the authority conferred by the people by their vote under chapter 150 at the general election in November, 1918. Section 5 is as follows:
Section 10 directs that the money received from the storing and handling of grain, after the payment of the expense of maintaining and operating the elevator, including the salary of the superintendent and expense of the board of managers and premiums on the bonds, shall be paid into the state treasury to the credit of the "terminal elevator fund," and that this fund shall be used exclusively for the payment of the interest and principal of the elevator bonds.
On January 29 of this year the board, assuming to act under the provisions of chapters 150 and 204, advertised the bonds for sale. On February 28 this action was brought to enjoin the issuance and sale of the bonds on the ground that the legislation referred to is unconstitutional. The Attorney General interposed a general demurrer to the complaint. The controversy was thereupon submitted for final decision upon the questions of law thus raised.
1. It is not questioned by counsel for relator that the state may lawfully engage in the business of operating a grain elevator or in other similar business for the benefit of the public, as distinguished from private business. Indeed, it could not be questioned, for the reason that there is no provision of the Constitution which prohibits it. In the absence of such provision, the Legislature is left free to establish, and to provide by law for the conduct of, such a business so long as the plan adopted by it does not inpinge upon some other provision or limitation in the Constitution or some one of the powers delegated by the people to the federal government. It is held that the state may establish such institutions under its police power. State ex rel. Lyon v. McCown, 92 S.C. 81, 75 S.E. 393; Rippe v. Becker, 56 Minn. 100, 57 N.W. 331, 22 L. R. A. 857. Indeed, it is settled law in this jurisdiction that, subject to these limitations, the Legislature possesses all the power of lawmaking which inhere in any independent sovereignty. State ex rel. Sam Toi v. French, 17 Mont. 54, 41 P. 1078, 30 L. R. A. 415; In re Pomeroy, 51 Mont. 119, 151 P. 333; State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392; Hilger v. Moore, 56 Mont. 146, 182 P. 477.
This language is broad enough in its scope to include any sort of an institution which the Legislature in its discretion may determine the public good requires. Therefore, whether the authority of the Legislature to establish and provide for the support of any public institution by the state is to be found in this clause of the Constitution or in its general police power, there can be no doubt that it exists.
2. It is suggested, though not seriously urged, that the provision requiring the levy of the tax provided for on "lands agricultural in character" violates the uniformity provision of the Constitution. This question is, we believe, disposed of in this jurisdiction by the opinion in the case of Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 P. 554, and in Hill v. Rae, 52 Mont. 378, 158 P. 826, L. R. A. 1917A, 495, Ann. Cas. 1917E, 210. In the first case noted this court said:
"The state may classify persons and objects for the purpose of legislation, provided the classification is based upon justifiable distinctions, and for a purpose within the legislative power."
In the second:
"It does not follow, however, that the object in respect to which the classification is made must commend itself to 'certain preconceived and deeply rooted notions of lawyers' (Cunningham v. Northwestern Improvement Co., supra), or that the classification must always depend 'on scientific or marked differences in things or persons or relations; it suffices if it is practical, and it is not reviewable unless palpably arbitrary.' "
There being a logical reason for assessing "lands agricultural in character" for the support of an institution which will directly benefit only the owners of such lands, the Legislature was acting within its constitutional power when it made the classification.
3. The next question presented is: Are the words "agricultural in character" sufficiently definite and certain to enable the assessing officers of the state to determine what particular lands shall be listed for taxation? Relator insists that they are not, for the reason that the phrase used is not defined in the act, "nor was there any act when chapter 150 was passed, defining 'agricultural lands' throughout the state, to our recollection." Even if such were the case, we do not apprehend that it would be an unsurmountable difficulty, for "that is certain which can be made certain" (Rev. Codes, § 6206), and if the term has, in the law, a well-defined meaning, its use, without specific definition, would...
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