Thaanum v. Bynum Irr. Dist.

• Decision Date: 12 January 1925
• Docket Number: 5632.
• Citation: 232 P. 528,72 Mont. 221
• Parties: THAANUM v. BYNUM IRR. DIST. et al.
• Court: Montana Supreme Court

232 P. 528

72 Mont. 221

THAANUM v. BYNUM IRR. DIST. et al.

No. 5632.

Supreme Court of Montana

January 12, 1925

Appeal from District Court, Teton County; H. H. Ewing, Judge.

Action by William A. Thaanum against the Bynum Irrigation District and others as Commissioners thereof. From a judgment of dismissal, plaintiff appeals. Affirmed.

T. B Weir, of Helena, for appellant.

Cooper Stephenson & Hoover, of Great Falls, and Sterling M. Wood, of Billings, for respondents.

HOLLOWAY J.

In 1906 the Teton Cooperative Reservoir Company, a corporation, was organized under the laws of this state, and ever since has maintained its corporate existence. Its capital is represented by 1,000 shares of stock, and under its bylaws the owner of a share of this stock is entitled "to the use during the irrigating season of each year, of a one-thousandth part of the waters, water rights and irrigating facilities and systems of this company, including the right to lease, pledge, sell and dispose of such use." The company constructed a reservoir in which it impounds a large quantity of water from the Teton river, and installed a distributing system through which the waters are conveyed to the individual users. In 1920 the Bynum Irrigation District was organized for the purpose of irrigating approximately 25,000 acres of land in Teton county, and the individual defendants herein constitute the board of commissioners of the district. Through negotiations the district acquired an option to purchase 800 shares of the capital stock of the reservoir company or, as an alternative the right to purchase from the stockholders owning 800 shares their respective rights to the use of the waters. Thereupon W. A. Thaanum, an owner of land included in the district, instituted this suit to obtain an injunction restraining the district and its board of commissioners from expending any money belonging to the district for the option or for the property sought to be acquired. To the complaint, which sets forth fully the history of the transaction, a general demurrer was interposed, which was sustained by the district court, and the plaintiff, declining to plead further, suffered a judgment of dismissal to be rendered and entered against him and appealed.

Section 7174, Revised Codes of 1921, as amended by chapter 157, Laws of 1923, defines the powers of the board of commissioners of an irrigation district, and subdivision 3 of that section reads as follows:

"The board shall have power and authority to appropriate water in the name of the district, to acquire by purchase, lease, or contract, water and water rights; additional waters and supplies of water, canals, reservoirs, dams and other works already constructed, or in the course of construction, with the privilege, if desired, to contract with the owner, or owners of such canals, reservoirs, dams and other works so purchased and in the course of construction, for the completion thereof and shall also have power and authority to acquire by purchase, lease, contract, condemnation, or other legal means, lands (and rights in lands) for rights of way, for reservoirs, for the storage of needful waters, and for dam sites, and necessary appurtenances, and such other lands and property as may be necessary for the construction, use, maintenance, repair, improvement, enlargement and operation of any district system of irrigation works."

It is conceded by appellant that, if the Legislature had authority to confer such broad powers upon an irrigation district, there is not any merit in this appeal. But it is contended that the statute quoted conflicts with, or is limited in its operation by, the provisions of section 1, article 13, of our state Constitution, and in either event the defendants may not lawfully acquire the particular property in question. That section of the Constitution reads as follows:

"Neither the state, nor any county, city, town, municipality, nor other subdivision of the state shall ever give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association or corporation, or become a subscriber to, or a shareholder in, any company or corporation, or a joint owner with any person, company or corporation, except as to such ownership as may accrue to the state by operation or provision of law."

It must be conceded that, if the first alternative option be accepted, the irrigation district will become a shareholder in a corporation, or, if the second alternative be chosen, it will, in a sense at least, become a joint owner with the holders of the remaining 200 shares of stock in the reservoir company, so that the question arises at once: Is an irrigation district, organized under the laws of this state, included within the meaning of the terms employed in section 1 above? Such a district is not the state; neither is it a county, city or town. It is not a municipality, for the term "municipality" refers to a municipal corporation (Black's Law Dictionary) and in this state only incorporated cities and towns are municipal corporations ( Hersey v. Neilson, 47 Mont. 132, 131 P. 30, Ann. Cas. 1914C, 963). It remains to be determined whether an irrigation district is comprehended by the term "other subdivision of the state."

A word or phrase may have different meanings as it is employed in different connections (Barnes v. Montana Lumber & Hardware Co., 67 Mont. 481, 216 P. 335), and the particular meaning to be...