Guillot v. State Highway Commission , 102 Mont. 149 ( 1936 )

Original application for an injunction to restrain the State Highway Commission and its members from the expenditure of its funds for the erection of a building on the capitol grounds. To the complaint filed after leave of court granted, the defendants interposed a general demurrer, which admits the truth of all facts alleged.

The plaintiff is a taxpayer and a regular purchaser of[1] gasoline, and prosecutes this proceeding on behalf of himself and all other persons similarly situated. As the interests of the public are involved in the controversy and the plaintiff is acting on behalf of the state, or, what is the same thing, the public interest, and as the wrong to be averted, if wrong there be in the erection of the building, is imminent, and substantial relief can be awarded herein, this court has original jurisdiction to issue the writ. (State ex rel. City of Helena v. Helena Waterworks Co., 43 Mont. 169, 115 P. 200.)

The building which the commission proposes to build will cost $138,000, a part of which may be secured as a grant from the Federal Emergency Administration of Public Works, but, whether or not this grant will be secured, a substantial amount from the highway fund, built up from receipts from the gasoline tax imposed by the state, will be diverted to the payment of the cost of the erection of the building.

By resolution providing for the erection thereof, the commission declared that an emergency exists and that the building is immediately necessary to the proper functioning of the highway department and the performance of the duties imposed by law upon the commission. The plaintiff concedes that all that is said by the commission is true and sets up facts in corroboration thereof, thus presenting the sole question of the authority of the commission under the law to use a portion of the fund derived from the gasoline tax for the erection of the building.

A State Highway Commission was first created in this state by Chapter 170 of the Laws of 1917, which Act was repealed by Chapter 10 of the Laws of 1921, Extraordinary Session, a new enactment on the subject, carried into the Codes of 1921 as sections 1783 to 1802, inclusive. Section 1783 was amended by Chapter 129, Laws 1925, and section 1789 was repealed in part by Chapter 176, Laws 1931; but these changes are not important here. A gasoline license tax law was enacted in 1921 and appears as sections 2381 to 2396, inclusive, Revised Codes 1921, certain of these sections being amended from time to time. Sections 2382, 2383 and 2392, above, were amended by Initiative Measure 31, in the election of 1926, appearing at page 604 of the Laws of 1927. Initiative Measure 31 was repealed by Chapter 163, Laws 1935, on recommendation of the Code Commissioner, but by virtue of Chapters 18 and 19, Laws 1927, none of the force and effect of the measure has been lost. Within these various Acts as they remain upon the statute books appear the powers, duties and authority of the commission and the purposes for which the funds derived from our present 5 cent. per gallon gasoline tax may be expended.

Section 13 of Chapter 19, Laws 1927, declares: "All money received by the State Treasurer in payment of license taxes under the provisions of this Act, shall be deposited by him in, and credited to, the State Highway Fund. All money so collected and deposited * * * shall be used and expended by the State Highway Commission in the construction, reconstruction, betterment, maintenance, administration and engineering on the Federal Highway system of highways in this state selected and designated under the provisions of the Federal Aid Act, approved July 11, 1916, and the Federal Highway Act approved November 9, 1921, and all amendments thereto, and for the purpose of construction, reconstruction, betterment, maintenance, administration and engineering of highways leading from each county seat in the State to said Federal Highway system of Federal Aid roads where such county seat is not on said system, and for the purpose of construction, reconstruction, betterment, maintenance, administration and engineering of such other roads as have been or may be authorized by the laws of Montana, for the collection and enforcement of this Act, and for the purpose of payment of refunds and drawbacks authorized by law to be made to purchasers of gasoline used in this state for other purposes than the propulsion of motor vehicles over the public highways and streets of this state; provided, that the total cost to the State for administration and engineering on the Federal Aid work contemplated by this Act shall not exceed for any fiscal year eight per cent. (8%) of the total of State, Federal Aid and other available funds expended under the supervision of the State Highway Commission."

Whether such action was necessary or not, the legislature has from time to time passed an appropriation bill appropriating the money in the highway fund, and such other amounts as may come into the fund, for use by the commission, the latest enactment of this nature being House Bill 292, p. 458, Laws 1935, appropriating for the period from July 1, 1935, to June 30, 1937, the sum of $6,500,000, together with all additional money deposited by law to the credit of the fund, for "expenditure by the State Highway Commission as provided by law."

This fund is, therefore, available to the commission for any purpose for which it may expend money, subject only to the provision that not to exceed 8 per cent. of the total funds available may be expended for "administration and engineering" purposes; and it is conceded that, if the building is erected from administration funds, this provision will not be violated. The percentage thus employed in 1928 was 6.77, but has steadily diminished until, in 1935, it was but 3.68, or less than half the amount permitted by law. If no additional amounts come into the fund, the 8 per cent. of the $3,250,000 appropriated for the current year will exceed $400,000, and the cost of the building, in addition to an expenditure equal to that of the fiscal year ending June 30, 1935, will not reach that amount.

Under our political system the entire source of governmental[2] authority is found in the people themselves. Either directly or through their chosen representatives, they create such offices and agencies as they deem desirable for the administration of the public functions, and declare in what manner and by what persons they shall be exercised; prescribe the quantum of power to be attached to each department and the conditions upon which its continuation depends. Their will, in these respects, finds its expression in their Constitutions and laws. (Mechem's Public Offices and Officers, 329.) But the powers which an officer, commission or department may exercise are not confined to those expressly granted by the Constitution or statutes of the state. "In addition to powers expressly conferred upon him by law, an officer has by implication such powers as are necessary for the due and efficient exercise of those expressly granted, or such as may be fairly implied therefrom. But no power will be implied other than those which are necessary for the effective exercise and discharge of the powers and duties expressly conferred." (46 C.J. 1032.)

With reference to municipal corporations, this court has rather narrowed this rule, by declaring that such agencies have only those implied powers which are "indispensable" in order to carry out those expressly granted, and that, where there is a fair and reasonable doubt as to the existence of a particular power, it must be resolved against the existence of the power. (Helena Light Ry. Co. v. City of Helena, 47 Mont. 18,130 P. 446; City of Bozeman v. Merrell, 81 Mont. 19,261 P. 876.) However, with respect to these corporations, the legislature has, apparently, attempted to define in detail all powers to be exercised in the eighty-odd subdivisions of section 5039 of the Revised Codes of 1921 and the amendments thereto (Laws 1925, Chap. 115; Laws 1927, Chap. 20), and in subsequent sections, while here no attempt to define the powers of the State Highway Commission was made; indeed, it would be altogether impractical to prescribe by statute the numerous and varying duties of such an agency of the state. (State ex rel. Priest v.Regents, 54 Wis. 159, 11 N.W. 472.) All of the commission's powers with respect to our highways must be implied from the sweeping authority vested in it to expend the funds placed at its disposal "in the construction, reconstruction, betterment, maintenance, administration and engineering on the Federal Highway system" and other roads mentioned. Within the Act there can be found no express power to purchase machinery, equipment, and appliances for the construction and maintenance of highways, nor even the purchase of material which goes into the roads, bridges, and viaducts; yet over the period of its existence, the commission has expended, without question, hundreds of thousands of dollars for these purposes.

With reference to boards charged with the construction of roads, but with no such broad authority or vast territory under their jurisdiction, it is held that the power and authority to lay out and construct roads carries with it the implied authority to purchase materials and appliances necessary in such construction; that the authority to "purchase" includes the authority to lease, and the right to purchase tools and the like includes the right to purchase necessary automobiles. (State v.Younkin, 108 Kan. 634, 196 P. 620; Henry v. Rogers,19 Ala. App. 376, 97 So. 427; Calloway v. Road ImprovementDist., 143 Ark. 338, 220 S.W. 450; State v. Cox,154 Ark. 493, 243 S.W. 651; McCord v. Little River County,155 Ark. 402, 244 S.W. 445.)

It is clear that the legislature intended that the commission[3] purchase equipment, appliances and material in the "administration" of the department, but the law is ambiguous as to how far it may go in expending the percentage permitted to be used for administration and engineering. In such a case, resort may be had to the history of the legislation. (59 C.J. 1017;State ex rel. Federal Land Bank v. Hays, 86 Mont. 58,282 P. 32.)

The sponsors of Initiative Measure 31 circulated an "affirmative argument" for the adoption of the Act, explaining the advantages to be secured, in question and answer form. In view of the fact that the bulk of the highway fund had theretofore been expended for "administration and engineering," the question was asked: "If this measure is enacted into law, will the money raised actually be spent on the roads?" And answered: "Yes, every dollar, 92 per cent. going directly into materials and labor, and 8 per cent. to engineering, supervision and general overhead." "Overhead" in this connection means the continuous expenses of a business (Dairymen's League Co-op.Assn. v. Holmes, 207 A.D. 429, 202 N.Y. Supp. 663), the expenses and obligations incurred in connection with operation (New York Canning Crops Co-op. Assn. v. Slocum, 126 Misc. 30, 212 N.Y. Supp. 534), expenses necessarily incurred in organization, office expenses, engineering, inspection, supervision and management during construction (Bonbright v.Geary, (D.C.) 210 Fed. 44); "denoting such general expenditure in a financial or industrial enterprise as cannot be attributed to any one department or produce, excluding cost of materials, labor and selling; fixed charges." (Standard Dictionary; CharlesBehelen Sons' Co. v. Ricketts, 30 Ohio App. 167, 164 N.E. 436,439.) We must, therefore, determine whether or not the construction of buildings for the housing of machinery, equipment, engineering and administration employees; for drafting, testing of materials and directing construction, is necessary in the administration of the highway department as a part of its legitimate "overhead," and, if so, whether or not the legislature intended that such necessary buildings be constructed from the 8 per cent. of the highway funds permitted to be used for "administration and engineering" purposes.

While the law declares that the "office" of the commission shall be maintained at the State Capitol Building (Rev. Codes 1921, sec. 1783, as amended by Chapter 129, Laws 1925), it is not conceivable that the legislature intended that the administration and supervision of the "construction, reconstruction, betterment and maintenance" of upwards of 5,000 miles of state and federal main highways, and their connections forming a network, over the vast area of the state, should be conducted exclusively from that office.

Over the period of years from 1920 to 1935, the complaint discloses, the commission has erected buildings for storage, shops and offices in twelve cities throughout the state, and its reports to the legislature made pursuant to law contain this information. No one disputes the necessity for the erection of these buildings, and the legislature has at no time intimated that it intended that such necessary buildings should be furnished to the commission in some manner other than by the expenditure of administration funds. If the broad scope of the authority vested in the commission contemplated the construction of the buildings mentioned by the use of a part of the 8 per cent. allotted to administration in the years in which the buildings were constructed, it will permit, in like circumstances, the construction of the proposed building.

While administrative practice does not avail to overcome a[4] statute so plain in its commands as to leave nothing for construction, such practice, if consistent and unchallenged, will be overturned only for very cogent reasons, if the scope of the command is indefinite and doubtful, particularly when the practice has received congressional or legislative approval. (Alaska S.S. Co. v. United States, 290 U.S. 256,54 Sup. Ct. 159, 78 L. Ed. 302; Norwegian Nit. Pro. Co. v. United States,288 U.S. 294, 53 Sup. Ct. 350, 77 L. Ed. 796; State ex rel.Public Service Commission v. Brannon, 86 Mont. 200,283 P. 202, 67 A.L.R. 1020; Miller Insurance Agency v. Porter,93 Mont. 567, 20 P.2d 643.)

As to the necessity for the construction of the proposed[5, 6] building, it is shown in the complaint and the resolution of the commission made a part thereof, that the duties, activities and responsibilities, and the departments thereof created to take care of them, have greatly increased and will further increase in the near future by reason of additional duties imposed by the federal government; that while the law merely provides for the "office" of the commission in the capitol building, the commission has availed itself of all possible space within the building and has rented available space in the business district of Helena, a mile or more from the capitol, on which it pays rent and is still unable to secure sufficient necessary housing facilities to carry on its work. The court may well take judicial notice of the manner in which the departments of the highway commission have inundated the capitol building; the "plans department," for instance, with its forty to fifty employees, its drafting tables and filing cases, fills the senate chamber and its corridors to overflowing; the "right of way" and other departments occupy the Lieutenant Governor's quarters and legislative committee rooms. The necessity for an adequate "testing laboratory" is immediate and imperative; additional space for plans, administration, construction and engineering departments, highway traffic survey, and other activities must be shortly provided, and can be secured in no manner but by the erection of the proposed building.

The commission declares that "to insure a wise and economical use of the funds of the commission, the personnel and employees of the various departments of the commission should be united in one building," and that the saving of rent now paid would, "in a comparatively short time," pay for the cost of the proposed building.

If the building can be erected in the manner proposed, it will cast no additional burden upon the taxpayers; whereas, if it must be built as a unit of the state capitol, other means of financing must be found. As the money is already available in a special fund, no appropriation bill is necessary; "the act may be accomplished in any manner receiving the sanction of the law." (State ex rel. Toomey v. State Board of Examiners, 74 Mont. 1,238 P. 316, 320; State ex rel. Veeder v. State Board ofEducation, 97 Mont. 121, 33 P.2d 516.)

Here the commission is granted no express power to rent, lease, purchase or construct buildings, but merely the broad general power to expend the moneys coming into the special fund, for the "construction, reconstruction, betterment, maintenance, administration and engineering" of our vast system of highways and roads, qualified only by the provision that not to exceed 8 per cent. of the total funds provided shall be spent for "administration and engineering" purposes. Where the legislature sees fit to confer upon a board or commission such broad general powers, the repository of the power is vested with discretion in choosing the means and methods of accomplishing the result expected, and, in the absence of fraud or manifest abuse of that discretion, its determination is conclusive. (State ex rel. Pew v. Porter, 57 Mont. 535, 189 P. 618; State ex rel. Pigott v. Porter, 57 Mont. 539, 189 P. 619.)

The authority vested in the commission to expend millions of dollars per year for the construction, reconstruction, betterment and maintenance of thousands of miles of highways and roads, imposes upon the commission the duty to expend these vast sums effectively through the use of the 8 per cent. permitted to be used for administrative and engineering purposes. Such broad granted authority confers upon a commission, by implication, all necessary authority and power to render the granted powers fully efficacious and the performance of such duties effectual. (State v. Hackmann, 276 Mo. 110, 207 S.W. 64; UnionIndemnity Co. v. State, 217 Ala. 35, 114 So. 415, 416;Huffman v. State Roads Commission, 152 Md. 566,137 A. 358.) In the Alabama case it is well said that "the inclusive terms of our statutes conferring powers on the state highway department, a state agency engaged in a large business enterprise of public character, carry the implied power to do all things incidental and appropriate to the accomplishment of the work in hand in a businesslike and orderly manner."

On the showing made it is apparent that the State Highway Commission cannot function effectively without additional housing facilities and that the condition is becoming more acute as time passes; that in the emergency it declares exists, it is imperative that the proposed building be erected as soon as possible; and that the erection of the building is, under the sweeping authority vested in the commission, a proper function in the administration of the highway program, so long as the necessary building can be erected without transgressing the injunction of the legislature not to spend in excess of 8 per cent. of the available funds for administration and engineering purposes. The complaint is insufficient to state a cause of action.

Defendant's demurrer is sustained and the proceeding dismissed.

ASSOCIATE JUSTICES STEWART, ANDERSON and MORRIS concur.