State Ex Rel. Public Service Commission v. Brannon ( 1929 )

STATEMENT OF THE CASE BY THE JUSTICE DELIVERING THE OPINION. This is a proceeding in mandamus, brought by the Public Service Commission to compel R.E. Kirk, as state chemist, to comply with the provisions of Chapter 109 of the Laws of 1927, which it is alleged he has refused to do following orders given him by his superiors, the State Board of Education, the Chancellor of the University of Montana, and the executive board of the State College of Agriculture and Mechanic Arts, all of whom are made parties respondent.

Chapter 109 relates to the licensing of those who sell gasoline and other petroleum products for use in motor vehicles or in internal combustion engines (sec. 1), and provides that each dealer shall pay a license fee of $1 for each separate place of business where he transacts business, and one additional dollar for each gasoline pump or vending machine in excess of one used at his place of business (sec. 2). These fees are paid into the state gasoline inspection fund, of which the state treasurer has the custody, and which he is obliged to keep separate from other funds under his control; and "all of the expenses incurred in the administration of this Act, or in enforcing the terms hereof shall be paid out of said fund in the same manner as other claims against the State of Montana." (Sec. 3.)

The Public Service Commission is required to secure the proper enforcement of the Act, to procure for inspection and cause to be inspected suitable samples of the commodities enumerated in the statute, and to make all necessary rules and regulations not inconsistent with the terms of the Act for procuring and transmitting the samples and reporting the results of the analyses, and to inform the county attorney of the proper county of all cases of violation of the law. (Sec. 4.) The Act provides that certain standards of quality and strength of gasoline and kerosene kept or offered for sale shall be maintained. (Secs. 5, 6.)

Section 9 provides: "The head or chairman of the department of chemistry of the State College of Agriculture and Mechanic Arts of the State of Montana is hereby designated as state chemist, and is authorized, and it shall be his duty, to make all analyses and tests of articles inspected under the terms of this Act, and to employ in such analyses and tests the standard methods of analysis. The state chemist shall receive no compensation for his services, nor shall he charge any fee for testing or analyzing any samples required to be analyzed by him under the terms of this Act; provided, however, that neither the state chemist nor the department of chemistry of the State College of Agriculture and Mechanic Arts shall be required to receive for analysis any unofficial samples submitted by any agency other than the Public Service Commission of Montana."

Section 10: "All analyses herein directed to be made by the state chemist may, in the discretion of such state chemist, be made by any competent assistant acting under his supervision; provided, however, that such assistant shall be appointed under the rules and regulations of the State Board of Education."

Section 11: "It shall be the duty of the state chemist or his assistants to attend and give evidence in all prosecutions instituted for the enforcement of this Act, and such chemist or assistant shall receive the same fees and mileage for attendance in such cases as are prescribed by the laws of the State of Montana to be paid to witnesses in courts of record."

Seven thousand five hundred dollars was appropriated for carrying out the provisions of the Act. (Sec. 21.) The legislature of 1929 did not make any appropriation for that purpose.

During the month of August, 1929, the commission procured samples of gasoline from different dealers, which it caused to be transmitted to the state chemist with request for analyses, but the chemist refused to make any analysis. Upon the theory that the law imposes a legal duty upon the chemist which he refuses to discharge, the commission brought this proceeding.

The respondents answered saying that the chemist "is now and at all times since the 28th day of August, 1929, has been ready and willing to analyze and test the said samples of gasoline and make reports thereon" to the commission, provided that funds for the payment of the actual cost of such analyses, exclusive of compensation and fees to the chemist, be furnished by the commission from a lawful source. Respondents pleaded that, following the passage and approval of the Act, the commission submitted to the head of the department of chemistry of the college samples of gasoline and other petroleum products for analysis, and that he willingly and promptly, and with the consent of all of the respondents, made the analyses and reports as requested; that after the passage of the Act and until August 28, 1929, the commission paid the actual cost of the analyses, exclusive of the compensation and fees to the head of the department of chemistry; from the state gasoline inspection fund, but on or about the 28th of August, 1929, the commission refused and still refuses to cause or permit the payment of the actual cost of the analyses, or any portion thereof to be made from the state gasoline inspection fund, or any other fund available for such purpose; that neither the state chemist nor any of the respondents have any funds from any lawful source for the payment of the actual cost of the analyses demanded by the commission, and allege at considerable length that to compel the department of chemistry to pay the expenses of the analyses would be violative of the Constitution, provisions of which are pleaded. They allege that whenever the commission shall lawfully provide funds for the actual cost of the analyses, exclusive of compensation and fees to the head of the department of chemistry of the college, he will willingly cause the analyses to be made; that the entire time of the state chemist, who is head of the department of chemistry of the college, is taken up with duties pertaining strictly to the college, and that it is necessary for him to employ an assistant to make the analyses.

It is not necessary to digest the pleadings further. We gather from the stipulation filed, the exhibits and the statements of counsel seemingly agreed to that it has been necessary for the head of the department of chemistry to employ an assistant, regardless of the duties imposed by Chapter 109. In other words, the assistant was a member of the staff in the department of chemistry.

The forerunner of Chapter 109 was Chapter 203 of the Laws of 1919, wherein the state sealer of weights and measures was designated ex-officio state oil inspector, subject to the supervision and control of the state board of examiners (sec. 2, Laws of 1919, p. 481), and provision was made for testing the quality of gasoline and kerosene, standards and specifications of which were prescribed (secs. 6 and 7, pp. 483, 484). Section 8 of the Act, making the head of the department of chemistry in the State College state chemist, and prescribing his duties, was re-enacted (sec. 9) in the 1927 Act without change, except that the words "Public Service Commission of Montana" were substituted for "State Oil Inspector." Sections 12 and 13 of the 1919 Act were re-enacted without change as sections 10 and 11 of the 1927 Act. The 1919 Act created the state gasoline inspection fund and provided: "That all of the expenses incurred by the state oil inspector in enforcing the terms of this Act, the salary and all of the necessary traveling expenses of the deputy oil inspector and all necessary laboratory and traveling expenses of the state chemist shall be paid out of the fund created by this Act in the following proportions, to-wit: Two-thirds of the fund hereby created shall be expended in payment of salary, traveling and other expenses of the state oil inspector and his deputies, including office help and equipment; one-third of said fund shall be expended in the payment of the necessary expenses incurred by the state chemist. All bills for payment out of said fund shall be presented and audited in the same manner as other claims against the State of Montana." (Sec. 16.) The sum of $10,000 was appropriated for the state gasoline inspection fund for the fiscal year ending February 28, 1920, and a like sum for the fiscal year following.

Pursuant to the law the college authorities proceeded to equip a state oil laboratory which was operated continuously from early in 1919 until April 1, 1925, when, because the state gasoline inspection fund was depleted, the work ceased upon the order of the secretary of state. Throughout this period a portion of the salary of an assistant of the state chemist was reckoned and paid as a part of the expense of the state chemist in making the analyses. After the enactment of Chapter 109 the Public Service Commission forwarded samples to the state chemist who caused the analyses to be performed without question until June 19, 1929. During this later period a portion of the salary of an assistant of the state chemist was likewise paid out of the fund. Specifically, for each of the months of August and September, 1928, when the assistant's time was expended wholly in analyzing gasoline samples, he was paid $150 per month, and for each of the succeeding nine months he was paid $37.50 out of the gasoline inspection fund. In June, 1929, the commission refused to pay any further claims for the salary of an assistant to the state chemist, and the chemist thereafter, acting under the orders of the chancellor, fortified by the local executive board and the state board of education, refused to test any further samples.

When this proceeding was commenced in the forepart of last October, there was sufficient money in the gasoline inspection fund to defray the necessary laboratory expenses, and to that extent the commission is willing to pay claims. The respondents, on the other hand, refuse to permit the analyses to be made unless the commission shall pay portions of the assistant's salary. In other words, it seems that prior to June, 1929, it was the custom of the commission, following the precedent established by its predecessors in the administration of the fund, to permit an allocation of the assistant's salary. Seemingly, it was the custom for the college authorities to pay such portion of the assistant's salary as was not taken up in making analyses and for the commission to pay the remainder. While the controversy arose chiefly over the question whether the salary of the assistant state chemist should be paid from the college funds or from the gasoline inspection fund, the argument has taken a wide range, and the theories of the respondents are not altogether consistent. One argument is based upon the willingness of the state chemist to have the work done under his supervision, and the assent of the other respondents to its being done in that fashion, provided all the expenses of doing it are paid for out of the gasoline fund. Another challenges the right of the legislature to compel the performance of the work under the terms of the Act, while still others are advanced attacking the practicability of the commission's position because of constitutional objections.

1. In support of their first position respondents say we should construe the Acts in question in accordance with executive and legislative interpretation. They argue that, as the salary of an assistant was paid, partially at least, from the gasoline inspection fund from 1919 to April 1, 1925, and again from July 19, 1927, to June 19, 1929, we have an interpretation of the Act by the executive department of the state government extending over a period of years, and that the legislature "in substantially re-enacting the 1919 statute" must be deemed to have done so with full knowledge of the interpretation put upon that Act by the executive department.

It is a "settled rule that the practical interpretation of an ambiguous or uncertain statute by the executive department charged with its administration is entitled to the highest respect, and, if acted upon for a number of years, will not be disturbed except for very cogent reasons." (Logan v. Davis,233 U.S. 613, 58 L. Ed. 1121, 34 Sup. Ct. Rep. 685, 690; Swendig v. Washington Water Power Co., 265 U.S. 322, 68 L. Ed. 1036,44 Sup. Ct. Rep. 496.) Another statement of the rule is that the aid of contemporaneous construction is invoked where the language of a statute is of doubtful import and cannot be made plain by the help of any other part of the same statute nor by the assistance of any Act in pari materia which may be read with it. The contemporaneous construction is that which it receives soon after its enactment. (Lewis' Sutherland on Statutory Construction, sec. 472.) But we fail to see how the statute in question is either ambiguous or of doubtful import. Chapter 203 (Laws 1919), with respect to the duties of the state chemist and the expense allowed for the performance of the work required, seems too plain to require construction. In the construction of a statute the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted. (Sec. 10519, Rev. Codes 1921.)

When the terms of a statute are plain, unambiguous, direct and certain, it speaks for itself, and there is nothing for the court to construe. (Chmielewska v. Butte Superior Min. Co., 81 Mont. 36,261 P. 616.)

In the first place it was evidently not the intention of the legislature to create another bureau or department of the government. It could have created the office of state chemist and put that officer under the control of the state oil inspector or of the Public Service Commission, but it did not do so. In the interest of economy the law-making body saw fit to create as state chemist the head of the department of chemistry at the State College. Additional duties were imposed upon him, and it was provided that he might call to his assistance in the performance of the work an assistant in his department. To that extent the legislature imposed additional duties upon the department of chemistry. The legislature knew that the head of the department of chemistry had assistants serving under him. It provided an additional safeguard by requiring that the assistant entrusted with the work should be selected under the rules and regulations prescribed by the state board of education. It was intended that the work should be done by the state chemist or a well-qualified assistant. Thus impartiality and accuracy would be insured. It was contemplated that it might be necessary for the state chemist or his assistant to give testimony in court in behalf of the state, for which no further compensation than the mileage and fees prescribed by law for other witnesses should be paid. The provision that the work might be done by an assistant merely relieved the state chemist from doing the work himself. If the assistant was already receiving a salary from the state, there was no reason why any additional provision should be made for his compensation. If either the chemist or his assistant had the time to perform the work required for the salary already provided by law it was unnecessary to consider the subject of salary further, and such evidently was in the mind of the law-making body. If no burden entailing expense be added, there could be no good reason for compensating the assistant out of the state gasoline inspection fund. Furthermore, a consideration of section 16 of the Act of 1919 (Chap. 203) seems to put the subject beyond question. We observe that the salary and all necessary traveling expenses of the deputy oil inspector are provided for, but all that is allowed the state chemist is "all necessary laboratory and traveling expenses." In allocating the fund we observe that two-thirds "shall be expended in payment of salary, traveling and other expenses of the State Oil Inspector and his deputies, including office help and equipment; one-third of said fund shall be expended in the * * * necessary expenses incurred by the State Chemist." The omission of salary from that part of the section which refers to the state chemist, while it is especially named in that part which refers to the inspector, is significant.

The construction given the law by the officers who allowed a portion of the salary of the assistant to be paid out of the gasoline inspection fund was palpably erroneous.

It is argued that it is to be presumed that the legislature, after the passage of Chapter 203, knew of the construction placed upon it by the executive officers (City of Baltimore v. Machen,132 Md. 618, 104 A. 175), and that all statutes are presumed to be enacted by the legislature with full knowledge of the condition of the law (36 Cyc. 1146); further, that the weight to be given to executive or departmental practice is increased when the legislature in re-enacting the law or another law in parimateria fails to indicate in any way its disapproval of the settled construction of the officer or department (25 R.C.L. 1025).

Conceding the correctness of the principles relied upon, they are not applicable when there is a substantial change of phraseology, some change other than what may have been necessary to abbreviate the form of the law. (McDonald v. Hovey,110 U.S. 619, 28 L. Ed. 269, 4 Sup. Ct. Rep. 142.) A change in the phraseology of an amendatory statute raises a presumption that a departure from the old law was intended. (25 R.C.L. 1051.) In the 1927 Act (Chap. 109) we do not find a re-enactment of the provisions of section 16 of the 1919 Act. We find in section 3 the provision that "all of the expenses incurred in the administration of this Act, or in enforcing the terms hereof shall be paid out of said fund in the same manner as other claims against the State of Montana." We see nothing here to warrant the payment of salaries. And in section 17 of Chapter 109 we find the following: "The Public Service Commission shall employ from time to time such inspectors as said Commission shall deem necessary to carry out the provisions of this Act, and said Commission shall fix the compensation of such Inspectors. The Inspectors herein provided for * * * in this Act and all expenses of carrying out the provisions of this Act shall be paid from said Fund."

However, as the two statutes are in pari materia, upon taking into consideration the above-quoted language from section 3 and the words in section 17 of Chapter 109, "and all expenses of carrying out the provisions of this Act shall be paid from said Fund," we conclude that what may be termed laboratory expenses of the state chemist are intended to be included, but this is the greatest extent to which we are permitted to go.

We therefore see no aid for the respondents under the head of either executive or legislative construction.

2. Counsel for respondents make the broad statement that since the University is established by the Constitution for educational purposes, and since the management thereof is vested in the state board of education by the Constitution, the legislature is without power to impose a noneducational and antagonistic function upon one of the University units. While its functions are not specified in the Constitution, no one will dispute the assertion that the main function of the University is the education of youth. Yet its activities go further than that. The University of Montana, as defined by section 852, Revised Codes 1921, as amended by section 1 of Chapter 6, Laws of 1927, while established and maintained primarily for educational purposes, has wider functions than mere scholastic instruction. The activities of modern universities embrace a wider scope than mere teaching. When sufficiently financed, research and experimental work of great value to the public is constantly being carried on by them. As a part of the work scientific treatises, of high practical worth, are put forth which contribute substantially to state and national progress along industrial, economic and cultural lines. Indeed, the potentialities of service which may be rendered through these agencies cannot be compassed by any small measure. The knowledge diffused by these institutions radiates far beyond the student body.

The supreme court of Nebraska, in a case somewhat similar to this, and which will be referred to hereafter more at length, observed: "It has long since passed the stage of scholastic instruction and, in addition, is conducting practical experiments and applying knowledge for the benefit of the public, and incidentally aiding individuals, professions and industries." (Fisher v. Board of Regents, 108 Neb. 666, 189 N.W. 161,164.)

It is not inapt to characterize the State University as a developmental arm or agency of the state, as has been suggested by two leading educators. (President Kinley; Chancellor Brannon; see Dr. Brannon's address as President of the National Association of State Universities, School and Society, Vol. XXIX, No. 753, June 1, 1929.)

Section 11 of Article I of the Constitution provides: "The general control and supervision of the state university and the various other state educational institutions shall be vested in a state board of education, whose powers and duties shall be prescribed * * * by law. * * *" Observe the care employed in the construction of this sentence. The general control and supervision of the State University and the various other educational institutions are vested in the state board of education whose powers and duties shall be prescribed and regulated by law. A law may be enacted by the people exercising the initiative or by the people acting through the legislature. In either case the power to enact a law is illimitable, except as restrained by the Constitution. (Veto Case, 69 Mont. 325, 35 A.L.R. 592, 222 P. 428; State ex rel. Jones v. Erickson,75 Mont. 429, 244 P. 287.)

The assertion that the legislature is without power to prescribe or regulate the functions of the University or one of its units cannot be admitted. That the board of education is "within the scope of its functions, co-ordinate and equal with the legislature" must be denied. "The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted." (Sec. 1, Art. IV, Constitution.)

The board of education is a part of the executive department, and is but an agency of the state government. The legislature may prescribe the extent of the powers and duties to be exercised by the board in the general control and supervision of the University of Montana. The legislature may broaden the functions of the University, or any of its units. It may require research and experimental work to a greater extent than is now being carried on, and for the public benefit may require the discharge of functions in new fields. In other words, the state may extend, and add power to, its developmental arm.

But it is said the legislature may not require the University to perform an "antagonistic function." We fail to see how the work required is antagonistic to other functions of the college. "Antagonistic" means "combating, contending or acting against." (Webster's New International Dictionary.) Nor do we see how the principle is destructive of the concept of the functions of the college. The requirement may be out of the ordinary, but we cannot hold that it was beyond the power of the legislature to require it. (Fisher v. Board of Regents, supra; State ex rel.Heimberger v. Board of Curators, 268 Mo. 598, 188 S.W. 128.)

In passing upon the constitutionality of a statute, courts must indulge every presumption in favor of its validity, the question being not whether it is possible to condemn but whether it is possible to uphold the Act; they will not declare it invalid unless its unconstitutionality is shown beyond a reasonable doubt, and, if two constructions are possible, one of which will result in its constitutionality and the other in its invalidity, they will adopt the former. (Hale v. CountyTreasurer, 82 Mont. 98, 265 P. 6.)

The Constitution of Nebraska declares that the general government of the University of Nebraska shall, under the direction of the legislature, be vested in a board of six regents, and that their duties and powers shall be prescribed by law. Note the similarity between this provision and our section 11, supra. The legislature of that state passed an Act requiring the board of regents of the State University to establish a plant for the production of hog cholera serum, requiring the department of animal pathology of the University to carry on the production and preparation of the serum under the provisions of the Act, and providing that the serum should be furnished to the state veterinarian or his authorized deputies, at the actual cost of production, and also requiring the department to distribute the serum to farmers and swine growers, residents of Nebraska, at the actual cost of its production. Many objections were lodged against the Act. The court in Fisher v. Board of Regents, supra, said that "the most formidable argument is directed to the proposition that the board of regents of the University of Nebraska is limited fundamentally to educational duties, and that therefore the lawmakers cannot require it to engage in the business of manufacturing and distributing hog-cholera serum as an article of commerce." The court, after reviewing the constitutional and statutory provisions relative to the University, concluded that the question was not one of policy or wisdom, but of legislative power, and declared that "a constitutional provision prohibiting the legislature from authorizing the operation of a hog-cholera serum plant at the state agricultural college or from imposing new duties on the board of regents has not been pointed out or found."

The intention of the legislature was to prevent the sale of inferior gasoline and kerosene in this state; the law provides for the maintenance of certain standards and provides for the prosecution of those who transgress its provisions. Society in general is affected; it may be said that one of these petroleum products is used for one purpose or another by almost every family in the state; the well-nigh universal use of gasoline needs no comment.

Solicitude for the public welfare is the basis of the law. In order that the analyses might be made with accuracy and impartiality, the head of the department of chemistry at the College of Agriculture and Mechanic Arts was made state chemist and he, to that extent at least, thus became a public officer. It was competent for the lawmakers to prescribe his duties as such and to require him to perform the same without any compensation other than that which attaches to his position as head of the department of chemistry. (State ex rel. Rowe v. DistrictCourt, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 P. 1103;Peterson v. City of Butte, 44 Mont. 401, Ann. Cas. 1913B, 538, 120 P. 483.)

We find no constitutional objection against the power of the legislature to require the department of chemistry to analyze samples of gasoline and kerosene.

No question here arises as to any violation of Mr. Kirk's contract with the state. He assumed his position after the law came into effect, and the law became part of his contract. (HomeState Bank v. Swartz, 72 Mont. 425, 234 P. 281.) It is agreed that the entire time of Mr. Kirk is taken up in the performance of his duties as head of the department of chemistry, and that he has no time personally to perform the analyses. Were it otherwise, he would be obliged to do so. Having in mind this situation, the legislature provided that, in the discretion of the state chemist, the analyses might be made by a competent assistant under his supervision, "provided, however, that such assistant shall be appointed under the rules and regulations of the State Board of Education." (Laws 1927, Chap. 109, sec. 10.) This provision, we think, goes no further than to insure that the assistant shall be competent. It implies that the assistant shall be a member of the state chemist's staff rather than the contrary.

3. Every consideration leads us to conclude that the legislature intended that the analyses should be made by a salaried employee of the college, i.e., either by the head of the department or someone upon his staff. Neither the law of 1919 nor that of 1927 contemplates the payment of salary to the assistant, as we have determined. Each legislature has appropriated money "for the payment of salaries and other expenses" of the college. The great bulk of the college revenue comes from these appropriations. Doubtless the legislature, if it saw fit, could in express terms make it the duty of the college to make analyses of gasoline and kerosene at college expense, but it is not to be presumed that it would do so without either making a commensurate appropriation therefor, or specifying expressly that the expense entailed should be paid out of the general college appropriation. We think the legislature intended to go no further than to impose additional duties upon the state chemist and his assistant, already on the college payroll, relieving the college of laboratory expenses which must be paid from the gasoline fund.

The record does not disclose that the college was put to additional expense by reason of the additional duties imposed upon the department of chemistry. Consequently we find it unnecessary to discuss some constitutional questions raised by counsel for respondents. The Act provides that claims shall be paid out of the gasoline inspection fund in the same manner as other claims against the state are paid. Such claims must be presented to and can only be allowed by the state board of examiners. (Const., Art. VII, sec. 20; secs. 232, 238, Rev. Codes 1921.)

It seems to have been the idea of the commission on the one hand, and the respondents on the other, that the commission has the authority to pass upon the validity of claims against the fund and to order or refuse payment thereof. That the commission may authorize the expenditure of moneys from the fund, as provided by the terms of the Act, there can be no doubt, but that it has the right to direct the payment of moneys from the fund is fallacious. In the orderly process of administration it is doubtless true that ordinarily the board of examiners would not direct the payment of a claim bearing the disapproval of the commission, and that the board would order the payment of claims approved by the commission. But this is a mere matter of administrative practice. The fact remains that the board of examiners may order payment of money from the fund without the approval of the commission, and, indeed, over its protest.

It appearing that a legal duty rests upon Mr. Kirk as state chemist, and that the commission has funds sufficient to pay the expenses contemplated by statute for making the analyses, it is ordered that a peremptory writ of mandamus as prayed for issue.

ASSOCIATE JUSTICES MATTHEWS, GALEN and FORD and HONORABLE J.J. LYNCH, District Judge, sitting in place of MR. JUSTICE ANGSTMAN, disqualified, concur.

Rehearing denied December 31, 1929.