Nelson v. Jackson , 97 Mont. 299 ( 1934 )

Plaintiffs, as resident taxpayers of Beaverhead county, brought this suit against the defendants as county commissioners thereof, seeking to enjoin them from selling refunding bonds in the sum of $11,100.

At the time of the commencement of this action, the defendants proposed to retire outstanding warrants of Beaverhead county in the sum of $61,681.57 by the issuance and sale of refunding bonds. Plaintiffs alleged in their complaint, in effect, that certain of these warrants aggregating the sum of $11,100 were illegal and invalid. These warrants were issued in August, 1932, to the Westmont Tractor Company, in payment of three "Caterpillar Auto Patrols." The warrants were presented to the county treasurer for payment, and registered on August 10, 1932. Plaintiffs alleged that the indebtedness evidenced by these warrants was incurred under an entire and indivisible contract, and that the question of incurring this indebtedness was never approved by a majority of the electors of the county, nor was the proposition submitted to the electorate. They alleged that, by reason of the failure to submit the question of incurring this indebtedness to the electorate, the indebtedness and warrants issued in payment thereof are invalid and void.

Defendants by their answer admitted that the warrants were issued in payment of the auto patrols purchased by the county, the registration of the warrants and that the proposition of incurring the indebtedness was never submitted to the electors of the county. They denied, however, that the contract for the purchase was an entire and indivisible contract, and denied that the indebtedness and warrants are invalid. Trial was had before the court sitting without a jury.

The evidence disclosed that in the year 1931 a salesman of the Westmont Tractor Equipment Company delivered to the defendants the three auto patrols on trial. The deliveries were made on two different occasions. The commissioners made use of the patrols at various times during the forepart of the year 1932. Thereafter, in the month of August, a claim was presented to the board of county commissioners by the tractor company for three caterpillar auto patrols fully equipped, for $3,850 each, making a total of $11,550, less three caterpillar snowplows, at $150 each, making a total deduction of $450. The amount of the bill as thus rendered was $11,100. This bill was approved August 1, 1932, and warrants were issued in payment.

Beaverhead county has some 1,200 miles of road. The commissioners testified that the county was divided into three road districts, conforming to the boundaries of the county commissioner districts from which each county commissioner was elected. Under the supervision of the board, each commissioner had charge of the road work within his own district. It was testified that it was the plan of the board that one of these auto road patrols was for use in maintaining the roads in each district, although no formal assignment of the patrols to any particular district was ever made by the board. Each member of the board, after they were received, took one of the patrols, and since then the patrol so taken by each commissioner has, with one exception, been used in maintaining the roads in that commissioner's district. Testimony was offered showing the necessity of securing these patrols in order properly to maintain the roads of the county.

Following the trial, findings of fact were made to the effect that the purchase of these auto patrols did not constitute a single purpose, within the meaning and scope of section 5 of Article XIII of the state Constitution. Numerous other findings were made, and also a conclusion of law to the effect that the warrants represented a legal and valid indebtedness. Judgment was thereafter rendered dismissing the action. The appeal is from the judgment.

By appropriate specifications of error the correctness of the court's finding and conclusion that the purchase of the road patrols did not constitute a single purpose within the meaning of section 5 of Article XIII of the Constitution is challenged. The pertinent portion of the section provides: "No county shall incur any indebtedness or liability for any single purpose to an amount exceeding ten thousand dollars ($10,000) without the approval of a majority of the electors thereof."

If the purchase of these patrols constituted a single purpose within the meaning of this constitutional provision, then the board of commissioners was without authority to purchase them; the indebtedness created, as well as the warrants issued in payment thereof, was illegal, invalid and void. This constitutional provision has been involved in numerous cases before this court.

The words "single purpose" employed in this constitutional[1] prohibition have specific reference to "one object, project, or proposition — a unit isolated from all others. In other words, to constitute a single purpose, the elements which enter into it must be so related that, when combined, they constitute an entity; something complete in itself, but separate and apart from other objects." (State ex rel. Turner v. Patch, 64 Mont. 565,210 P. 748, 750; Bennett v. Petroleum County, 87 Mont. 436,288 P. 1018.)

By the provisions of Chapter 59, Laws of 1929, the board of[2] county commissioners "have general supervision over the highways within their respective counties. 1. They may, in their discretion, keep the county divided into suitable road districts, place each of said road districts in charge of a competent road supervisor, and order and direct each of such supervisors concerning the work to be done upon the public highway in his district. * * * 3. They must cause to be surveyed, viewed, laid out, recorded, opened, worked, and maintained such highways as are necessary for public convenience as in this Act provided. * * *" Thus it will be seen that the board of county commissioners have not only the authority, but the duty, to maintain and work the roads within their county.

The acquiring of a courthouse site, the preparation of plans for the courthouse, and its construction constitute a single purpose. (Hefferlin v. Chambers, 16 Mont. 349, 40 P. 787.) The borrowing of money in various sums, aggregating an amount in excess of $10,000, on the same day for the use of the county, by the issuance of warrants any one of which was less than $10,000 in amount, is within the constitutional prohibition. (Hoffman v. Gallatin County, 18 Mont. 224, 44 P. 973.) The building of a bridge over a river and its approaches is a single purpose. (Jenkins v. Newman, 39 Mont. 77, 101 P. 625.) The incurring of an indebtedness to secure seed grain for distribution among needy drought-stricken farmers is likewise a single purpose. (State ex rel. Cryderman v. Wienrich, 54 Mont. 390,170 P. 942.) The building of a county high school building out of the proceeds of a tax levy and costing in excess of $10,000 is within the constitutional prohibition. (Panchot v. Leet, 50 Mont. 314,146 P. 927.)

In the case of State ex rel. Turner v. Patch, supra, the board of county commissioners during a period of two years and a half had procured work and labor to be done and materials furnished in the construction, repair, improvement and maintenance of the roads and bridges in Roosevelt county, in payment of which the county had issued warrants aggregating $113,000. It was there sought, as here, to prevent by injunction the refunding of the warrants issued, on the theory that the work done for which the warrants were issued was a single purpose within the meaning of the Constitution. No one contract or piece of work done exceeded the sum of $6,000. It was there held that the construction and maintenance of roads by the county commissioners did not constitute a single purpose within the constitutional prohibition here under consideration.

It will be noted that, in all of our cases wherein an expenditure was condemned, it was founded on a liability for a single occasional purpose, as the building of a courthouse, the borrowing of money for immediate needs, the bridging of a river and the building of a county high school. Here we have an expenditure founded on a duty expressly imposed by law to meet an ever-present condition encountered in the regular and normal functioning of the county. Such were the facts in the case before the court in State ex rel. Turner v. Patch, supra.

The mere fact, however, that a duty is made compulsory by mere[3] legislation, or that the legislature has attempted to absolve any public agency from the restriction of the Constitution, does not relieve the situation, for the Constitution is to be read into every statute by which a duty is imposed upon a public agency; and, if the duty is to do a thing which cannot be done without first obtaining the consent of the electors, then, manifestly, it becomes a part of the duty to secure such consent. (Panchot v. Leet, supra.)

The facts that the patrols in question here were purchased[4] from one firm and paid for on one day is not controlling or decisive, for, if such were the case, the commissioners could avoid the force of the Constitution by purchasing this equipment from different persons or firms on different days; but such artificial division of a project is unavailing to avoid the constitutional prohibition. (Hefferlin v. Chambers, supra;Jenkins v. Newman, supra; State ex rel. Turner v. Patch, supra.)

Since the repair and maintenance of the roads of a county do not constitute a single purpose within the meaning of the constitutional provision (State ex rel. Turner v. Patch, supra), the purchase of machinery for use upon all the roads of a county in repairing and maintaining them is not the expenditure of funds for a single purpose. The trial court was not in error in its findings, conclusions and judgment.

The judgment is affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS and STEWART concur.

MR. JUSTICE ANGSTMAN, being absent, takes no part in the foregoing opinion.