Cramer v. Montana State Board of Food Distributors , 113 Mont. 450 ( 1942 )

I dissent. I agree with what is said in the majority opinion to the effect that Chapter 49, Laws of 1939, does not violate section 10, Article XII of the Constitution. I am not able to agree that that part of the Act which authorizes a portion of the fees to be turned over to the Montana State Food Distributors Association for the "advancement of the science, sanitation and public health in food distribution, and for the enforcement of this or any other law relating to food stores" conflicts with section 1, Article XIII of the Constitution.

Section 1 of Article XIII prohibits the state, counties, cities, towns and municipalities from giving or loaning its or their credit in aid of and from making "any donation or grant, by subsidy or otherwise, to any individual, association or corporation." The Act here does none of those things. It simply turns over money to the association in question to be used for a specified governmental purpose. It cannot be used for any private function of the corporation. To the extent that the association carries out the purpose of Chapter 49, it is performing a public, governmental function and is not receiving any grant or donation for its own private purposes and must be considered to that extent as a public corporation. When a person or corporation receives money from the state for a specified public use, and the money is used to carry out the trust, I am unable to understand how it can be said to constitute a grant or donation to such person or corporation. Similar statutes have been upheld by other courts. (Cloud County Farm Bureau v. Board of CountyCommissioners, 126 Kan. 322, 268 P. 91; Blume v. CrawfordCounty, 217 Iowa 545, 250 N.W. 733, 92 A.L.R. 757, and see cases listed in note in 13 A.L.R. 828.) The United States Supreme Court has also sustained similar legislation. (Nicchia v. People,254 U.S. 228, 41 S. Ct. 103, 65 L. Ed. 235, 13 A.L.R. 826.)

It is suggested by plaintiff that the validity of a statute must be determined, not by what has been done under it, but by what may be done, and hence that the association may expend the money for private purposes. If the money is spent for a purpose not specified by statute, the courts are open for correction of such abuse. The validity of the statute cannot depend upon what may be done in defiance of its terms. It is only those things that may lawfully be done under the terms and provisions of a statute that must be considered in determining its validity.

I think the judgment appealed from should be affirmed.

Rehearing denied October 1, 1942.