Chez Ex Rel. Weber College v. Utah State Bldg. Commission , 93 Utah 538 ( 1937 )

We are all agreed that the Utah State Building Commission should proceed promptly and expeditiously with the erection and construction of the buildings for Carbon College and the additions to the Weber College. But there are some matters in the opinion of the Chief Justice to which I cannot subscribe and so I deem it proper to state my views.

There is but one question presented in this action, to wit, How much money is available to the Utah State Building Commission for expenditure in the erection and construction of Carbon Junior College, at Price, Utah, and for additions to Weber College at Ogden, Utah? Or to put it in other words, What is the meaning and interpretation of that part of chapter 113, Laws of Utah 1937, relating to Carbon College and Weber College? All other matters are merely decorations, camouflages, and habiliments to bedeck this question in the form of a lawsuit for our determination. The matter comes before us distinctly as a "case made," a "friendly suit" to obtain a certain judicial determination, without a basic or real dispute between the parties, as is evidenced by the fact that the Attorney General brings the action, and some members of his office staff appear for plaintiffs, while others appear for defendants. This method of presenting questions for judicial determination is not to be commended or encouraged. It is hardly fair to the court, nor to the parties involved. We do, however, meet the problem squarely, and determine the question, regardless of how it came before us, since it is one fraught with some public interest and concern.

The action was instituted by a petition for writ of mandate commanding the state building commission, and the individual members thereof, to forthwith proceed with the erection and construction of the Carbon College and the additions to Weber College.

Responding to the alternative writ issued by the court, defendants assert they "are desirous of carrying out the mandate of the legislature" and "of erecting and constructing the buildings," that they have had prepared general plans and specifications for said buildings; but a question has arisen as to the meaning and interpretation of chapter 113, Laws of Utah 1937, and they are unable to determine and ascertain whether there is available for Carbon College the sum of $273,211, or only $150,000; and for Weber College the sum of $145,592, or only $80,000; and until such matter is determined, they are unable to proceed intelligently, and efficiently, and to carry out the will of the Legislature, and perform properly their duty in the premises. They further assert that as soon as such matter is determined, they will promptly proceed with the erection and construction of said buildings within the funds thus determined to be available for such purposes.

It appears from the pleadings, the stipulation filed, and the admissions of counsel in the arguments, that the building commission was expeditiously proceeding with its work in regard to these colleges when a question as to the interpretation, meaning, and validity of chapter 113, supra, arose in some other litigation. It also appears, from this action as well as other matters, that the staff of the Attorney General was not in full agreement on the interpretation to be given the statute. We may remark in passing that neither side made a full and proper interpretation of the act in question. As pointed out by the Chief Justice, to keep the act from being absurd and ridiculous, we are required to read into it, certain words, not found therein. This we may do, and it is our duty so to do; but no one would contend that the building commission either could or should read words into an act not placed there by the Legislature, to give the act an effect they may desire.

I refer to these matters to show that the building commission was justified in declining to proceed further until the law was interpreted by the court, or some unity of opinion of its meaning arrived at, so they would know to just what extent they could go in the premises.

The act in question, chapter 113, Laws of Utah 1937, so far as material here, provides that all revenue collected or received from the licenses and taxes imposed by the Emergency Revenue Act, commonly called the Sales Tax Act, chapter 63, Laws of Utah 1933, as amended by chapter 20, Laws of Utah, Second Special Session, as amended by chapter 92, Laws of Utah 1935, shall be deposited with the State Treasurer to be credited by him to the Emergency Relief Fund. Certain appropriations are then made from the revenues in such fund prior to July 1, 1937, and all balances in such fund on July 1, 1937, are appropriated and transferred to the general fund, thus leaving the fund balanced at zero on July 1st. Then follow the provisions which are involved here. We quote:

"There is hereby appropriated from the emergency relief fund for the fiscal years beginning July 1, 1937, and July 1, 1938, the following sums of money:

"To the governor to administer relief as provided in Senate Bill No. 128 and Senate Bill No. 129 for the biennium . . . . . . . . . . $3,200,000.

"To the governor to be used under his direction in providing needed state buildings . . . . . . . . . . . . . . . $330,000.

"Said amount together with such other funds from federal orother sources as may be made available to use in connection therewith shall be expended as provided by chapters 22 and 23,Laws of Utah, 1933, as subsequently amended, and the order ofpreference in erecting public buildings shall be: 1. Carbon Junior College, $150,000. 2. Tuberculosis Sanatorium,$100,000. 3. Weber College $80,000. 4. The balance such asthere may be, State Prison." (Italics added.)

It is the second appropriation so set forth which is directly involved. The questions arise from the words I have italicized, and may be stated thus: Is the total amount to be used for Carbon College $150,000, including any federal funds which may be available, or does it mean $150,000 of state money supplemented by any federal funds which may be obtained? The same question arises as to Weber College. On the one hand it is argued that the Legislature made a definite appropriation of $150,000 from the Emergency Relief Fund to Carbon College; $100,000 to the Tuberculosis Sanatorium; and $80,000 to Weber College; and any federal funds which may be available would supplement this amount. On the other hand it is contended that the Legislature having appropriated $330,000 from the Emergency Relief Fund for four public building projects, to be used with federal or other funds which may be available, the maximum amount of the expenditure for each of the first three projects enumerated was fixed, and the balance, if any, was to go to the state prison. The three maximum grants equal $330,000 which under the first contention would leave nothing for the state prison, but under the second contention would make available for prison purposes such sum from each of the other grants as may be contributed to such buildings by the federal government or other sources. Thus, upon the rule of statutory construction that effect must be given to each word, phrase, clause, and sentence of a statutory enactment (Smith v. Lenzi, 74 Utah 362, 279 P. 893; Robinson v. Union Pac. R.Co., 70 Utah 441, 261 P. 9), the first construction would ignore entirely provision 4 for the state prison and necessitate a holding that the Legislature simply put that in as a joker in the bill. From the view of the act taken by both counsel, the position of counsel for the commission is probably the sounder one.

But both versions from the Attorney General's office start the discussion from a wrong premise — an erroneous reading of the act. There is no definite appropriation made to any one of these projects or buildings. From the nature of things, such could not be done and accomplish what the Legislature declared it had in mind. In the first place, the money was to come from the Emergency Relief Fund receipts commencing July 1, 1937, and extending over the biennium; secondly, there must first be taken from that fund $3,200,000 for relief during the biennium; thirdly, any expenditures for Carbon College are dependent on the condition that the taxing units of Carbon county provide a suitable campus (chapter 77, Laws of Utah 1937), and until such site was provided there could be no building for Carbon College; and, fourthly, a site was to be procured by the state for a Tuberculosis Sanatorium, and in so procuring a site the site finding commission was authorized, if needed, to extend all money appropriated in acquiring a site. Chapter 38, Laws of Utah 1937. These conditions, without pausing to enumerate many others, clearly indicate there may be many things or conditions develop which would make the expenditure of money for any of these projects impossible or impracticable and inexpedient. Appreciating these conditions, the Legislature "appropriated $330,000" to be used under the direction of the Governor "in providing needed state buildings." The buildings which the Legislature recognized as needed, and the order in which it deemed they were needed, are: (1) Carbon College, (2) Tuberculosis Sanatorium, (3) Weber College, (4) state prison. It is also indicated the amount of money, from the appropriation, which the Legislature felt would, in view of the state finances, supply the buildings required to meet or satisfy the prior or greater need of a particular institution. The Legislature cannot appropriate, control, allot, or direct the expenditure of federal funds, except to authorize the proper state official to accept such funds and expend or cooperate in expending them under such conditions as may be fixed by the federal government. There could have been no assurance, but merely a hope, in the legislative breast that some federal funds might be obtained for some of these projects. Suppose the taxing units of Carbon county had failed to provide a suitable campus for the college, would the $150,000 lay in the vaults unused until the next session of the Legislature? Certainly not, yet this would be the result if the act were construed as contended by counsel for plaintiff as direct legislative appropriations for buildings or specific projects. But the Legislature appropriated "To the governor to be used under his direction in providingneeded state buildings. . . . $330,000 * * * [to] be expended as provided by chapters 22 and 23, Laws of Utah [Second Special Session], 1933, as subsequently amended," together "with such other funds from federal or other sources as may be made available [to the Governor] to use in connection therewith."

The appropriation therefore is made, not to specific structures or projects, but "To the governor" for use "under his direction in providing needed state buildings." This makes the appropriation and its purpose entirely practicable and feasible. The Governor first determines when such money, or any part thereof, is available for use, since the $3,200,000 for relief must first be provided. When the money or some part thereof is available, the Governor allocates it to use for one of the needed public buildings. In the event that Carbon county had provided no campus for the college, the Governor might allocate the first money to one of the other buildings. It may be that federal funds would be offered for Weber College or the sanatorium, but not for Carbon College, so the Governor would allocate the first money to such building to make available the federal offer. If conditions precedent for an allocation were not met or the full allocation was not needed, the balances would go to the state prison. As we view the statute, no money is appropriated for either project until the Governor finds the money available and makes an allocation for such project.

In the instant case it is admitted, though perhaps not properly pleaded, that the Governor has allocated and made available for Carbon College $150,000 of state money and $123,211 of federal money, a total of $273,211; that he has allocated and made available for Weber College $80,000 state money and $65,592 of federal money, or a total of $145,592. The Legislature vested this power of allocation in the Governor. He has exercised it as provided by law, and beyond that the building commission need not look. The money is made available to it by allocation of the Governor and not by direct appropriation of the Legislature. When the Governor made the money available for use by the commission, it was and is its duty to proceed with the erection and construction of the buildings.

One other matter discussed by Mr. Chief Justice Folland requires attention. I am unable to see how the matter of the federal grants enters into the interpretation of the state statute. Certainly, our statute was not enacted by the Legislature in specific sums based upon federal grants, as the federal grants were made upon application of the executive department of the state long after the Legislature had adjourned and after the Governor had determined how much money he could and would allocate to the Carbon and Weber Colleges. The federal grants are allocations made by the Public Works Administration upon application and representation of the executive department of the state as to the project, and the amount of money the state has available. The federal grant may be evidence of the representations made by the state to the Public Works Administration, but it cannot be an element in interpreting what the Legislature meant six months earlier.

I assume that the commission, in a wise administration of its office, will proceed, if possible, in such a way as to avail itself of the money secured for its use by the state from the federal government, but if this may be considered in determining the duty of the commission, it is merely because of its duty to discharge its trust faithfully and efficiently. We said in Boardof Education v. Julius C. Andersen et al., 74 P.2d 681, not yet reported in State Report;

"The writ of mandamus is designed for the purpose of compelling action where the law enjoins the performance of the action as a duty and the person or tribunal whose duty is thus prescribed refuses to act in accordance with such law. No law has been called to our attention with which the defendants have refused or neglected to comply. ``The legal right to require the person or court [or tribunal] to proceed and the legal duty to do so must be free from doubt,' otherwise the remedy by writ of mandamus must be denied. Hoffman v. Lewis, Judge, 31 Utah 179,87 P. 167, 170. ``Where the writ [of mandamus] is sought to compel action on the part of the court [officer or tribunal] the legal right to the particular action which is sought to be compelled by the writ must be clear and the legal duty to do the act or thing demanded * * * must be equally clear.' Ketchum CoalCo. v. District Court of Carbon County, 48 Utah 342,159 P. 737, 740, 4 A.L.R. 619."

As indicated above, questions of the meaning and interpretation of the law having been raised sufficient to get into litigation, the commission did not act arbitrarily in refusing to proceed. The commissioners have declared their willingness and desire to proceed expeditiously with the construction of these buildings as soon as it is determined how much money they have available for the purpose. The question is settled by this opinion. We must assume they will do so without mandate. The alternative writ should therefore be quashed.