Veterans' Welfare Commission v. Department of Mont., Veterans of Foreign Wars of U.S., 10497
| Decision Date | 06 February 1963 |
| Docket Number | No. 10497,10497 |
| Citation | 379 P.2d 107,141 Mont. 500 |
| Parties | VETERANS' WELFARE COMMISSION of the State of Montana, Russell W. Lindborg, Walter Barnard, Joseph H. Grenier, Charles Dividson and Norman Hazelwood, as Members of and Constituting said Veterans' Welfare Commission of the State of Montana, and Harry E. Sawyer, Director of the Veterans' Welfare Commission of the State of Montana, Plaintiffs, v. DEPARTMENT OF MONTANA, VETERANS OF FOREIGN WARS OF the UNITED STATES, a Corporation, and Disabled American Veterans, Department of Montana, a Corporation, Defendants. |
| Court | Montana Supreme Court |
Johnson & Johnson, John A. Alexander, Butte, Howard A. Johnson (argued), Butte, Charles Davidson (argued), Great Falls, for appellant.
Louise Rankin and John Mahan (argued), Helena, for respondent.
This is an original proceeding before this court wherein the Veterans' Welfare Commission of the State of Montana, hereinafter referred to as the Commission, seeks a declaratory judgment determining whether the line appropriations in House Bill No. 454 of the Thirty-Seventh Legislative Assembly, Laws 1961, p. 761, of $6,000 annually during the fiscal biennium, 1961-1963, for 'Payment of secretarial services to those veterans' organizations maintaining full-time service offices at Fort Harrison, Montana', are constitutional.
The two defendants are the Department of Montana, Veterans of Foreign Wars of the United States, a component of a nationally chartered organization, hereinaftey referred to as the V.F.W., and Disabled American Veterans, Department of Montana, a Corporation, hereinafter referred to as D.A.V. It is conceded that both defendants are the only veterans's organizations maintaining offices at Fort Harrison, that each defendant is a corporation or organization not under the absolute control of the State of Montana, and that no part of the line-item appropriation has been paid.
House Bill No. 454 is entitled:
'An Act to Appropriate Money for the Operation and Maintenance of Certain State Agencies for the Period Beginning July 1, 1961 and Ending June 30, 1963.'
So far as applicable Section 3 of H.B. 454 is as follows:
* * *
'FROM THE GENERAL FUND
'Salary of director, seven thousand two hundred dollars $7,200.00
'Operation, one hundred thirteen thousand six hundred fifty-one dollars $113,651.00
'Payment of secretarial services to those veterans' organizations maintaining full-time service offices at Fort Harrison, Montana $6,000.00'
Section 4 provides identical appropriations from the general fund for the period beginning July 1, 1962, and ending June 30, 1963, except that the appropriation for operation is some $5,000 larger.
H.B. 454 is purely an appropriation bill and neither its title nor its substance contains a reference to any other subject or purpose.
In order to put perspective on our consideration of this question, we shall recite the history of the litigation as it appears from the pleadings, returns and briefs in this cause.
In March 1962, the V.F.W. and D.A.V. instituted mandamus proceedings in the district court to compel the Commission to pay to the private organizations or their employees, the amounts mentioned in the line-item appropriations, viz., $6,000, at the rate of $250 per month. The Commission moved to dismiss the proceedings on two grounds:
(1) That the line-item appropriations were unconstitutional, and
(2) That even if valid, their expenditure was discretionary and not mandatory.
As to this second ground, the V.F.W. and D.A.V. both conceded, on oral argument before this court, this the expenditure is discretionary.
In two previous appearances before us this was not conceded. Likewise in the district court mandamus action, the opposite assertion was made.
In May 1962, the district court denied the motion to dismiss. The Commission declined to further plead with the specific purpose of appealing from a judgment of a peremptory writ of mandate. No judgment was entered, as such, on the mandamus proceeding, but what was termed a judgment declared the line-item to be constitutional.
The matter was then brought to this court on an original proceeding. We accepted original jurisdiction and allowed a complaint to be filed by the Commission, which complaint seeks a declaratoy judgment as to the validity of the line-item appropriations. Answers were filed by both the V.F.W. and D.A.V. It was represented to the court by all parties that the matter would be presented on an agreed statement of facts. However, facts could not be agreed to, and the court has retained jurisdiction to determine the matter on the face of the appropriation bill with whatever nondisputed explanatory facts are necessary.
We are aware, it being conceded as it must be, that whether the expenditure is made is discretionary, may seem to remove the cause from the category of a justiciable controversy. Yet, because of the public problem involved, and in order that future litigation may be avoided, we shall determine the constitutional question of H.B. 454 of the Thirty-Seventh Legislative Assembly.
Now, as to the facts surrounding the issue. In reciting these, we are mindful that the Commission and both defendants, the V.F.W. and the D.A.V. dispute certain items, not as to all of the facts, but rather as to their relevancy and materiality. Also, we shall relate facts as if only one defendant rather than two are involved.
The Commission was originally created by Chapter 105, Session Laws 1919. The Act was rewritten in 1945. The present statutes relating to the existence and duties of the Commission are set forth as sections 77-1001 to 77-1011, R.C.M.1947.
Section 77-1002 provides in part:
The D.A.V. has since 1945 maintained a full-time service office at Fort Harrison with a full-time service officer accredited by the United States Veterans Administration to represent veterans and their dependents.
Further, the Commission in March 22, 1949, employed Elizabeth K. Mason as a secretary assigned to the service office maintained by the D.A.V., and her salary was paid by the Commission until August 1, 1959, a period of slightly more than ten years.
Further, by reason of reduced appropriations in 1959, the Commission discontinued on August 1, 1959, payment of the salary of the secretary they had selected and assigned to the D.A.V. service office.
It is alleged that the D.A.V. and V.F.W. appeared before the House Appropriations Committee requesting an appropriation for the Commission to continue to provide secretarial services to the D.A.V. service office at Fort Harrison, and that a specific appropriation was made for this purpose.
Thus, when the Thirty-Seventh Legislative Assembly met in January and February 1961, no secretarial services were being furnished by the Commission, nor had any been furnished since August 1959.
Before proceeding with our discussion of the issues, we shall briefly review some of the rules of construction of statutes as to constitutional questions. A statute will not be declared invalid unless, in the judgment of the court, its unconstitutionality is shown beyond a reasonable doubt. Tipton v. Sands, 103 Mont. 1, 60 P.2d 662, 106 A.L.R. 474; State v. Stark, 100 Mont. 365, 52 P.2d 890; and see Cottingham v. State Board of Examiners, 134 Mont. 1, 328 P.2d 907, for further discussion and cases. Further, that the court will, if possible, ascertain and carry into effect the intention of the Legislature. Such intention will be gathered from the terms of the statute considered in the light of the surrounding circumstances. State ex rel. Haynes v. District Court, 106 Mont. 470, 479, 78 P.2d 937, and cases cited therein. And see Parker v. County of Yellowstone, Mont., 374 P.2d 328; Garden Spot Market, Inc. v. Byrne, Bd. of Equalization, Mont., 378 P.2d 220.
However, although every reasonable doubt must be resolved in favor of legislative action, courts will not hesitate to defend constitutional inhibitions against clear statutory violations. Stanley v. Jeffries, 86 Mont. 114, 284 P. 134, 70 A.L.R. 166.
Looking now to the face of H.B. 454, and respecting the title and pertinent language:
'An Act to Appropriate Money for the Operation and Maintenance of Certain State Agencies' for the biennium. Now the line item: 'Payment of secretarial services to those veterans' organizations maintaining full-time service offices at Fort Harrison, Montana . . . $6,000.00' Emphasis supplied.
Article V, Sec. 35, Constitution of Montana, so far as pertinent, provides:
'No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state * * *.'
For our immediate purpose, keeping in mind that H.B. 454 is strictly an appropriation measure, it appears that the line item is an appropriation for a charitable or benevolent purpose to corporations, not under the absolute control of the...
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