Chez Ex Rel. Weber College v. Utah State Bldg. Commission

74 P.2d 687, 93 Utah 538, 1937 Utah LEXIS 77

• Court: Utah Supreme Court
• Decided: December 24, 1937
• Docket: No. 5972.
• Status: Published

Opinions

FOLLAND, Chief Justice.

Petition was filed by the Attorney General of Utah and the other plaintiffs praying for a writ of mandamus to the Utah State Building Commission, and the individual members thereof, commanding them to proceed with the construction of the Carbon Junior College and Weber College, pursuant to provisions of chapter 113, Laws of Utah 1937, and alleging that all matters preliminary to such construction required by law to be done had been done, and that the Governor of the state of Utah had allocated and made available for such purposes the amounts of $150,000 and $80,000, respectively, and that in addition thereto the federal government had allotted to the state for the construction of said buildings the sums of $123,211 and $65,592, respectively. An alternative writ of mandamus was issued.

The defendants responded to the writ and answered alleging that the provisions of chapter 113, Laws of Utah 1937, making appropriations for the colleges mentioned, are ambiguous, and that the commissioners are not certain as to their duties in the premises, particularly because of ambiguity as to the amount of money appropriated and available for such purposes. In their brief they say:

“And it appears that the purpose of the Legislature was to build three certain buildings and one other building if there be any surplus with which to build. Therefore, if the court takes the view that the $150,000 for instance, appropriated to Carbon Junior College is the total amount, including the grant of funds from Federal sources, then there might be a surplus for a state prison. But if the court takes the view that the appropriation of $150,000 does not include any other funds from any other sources, then there will be no balance for the state prison.”

The pertinent provisions of chapter 113, Laws of Utah 1937, are as follows:

“In addition to the above, 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 be used under his direction in providing needed state buildings.$330,000.

“Said amount together with such other funds from federal or other 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 of preference 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 as there may be, State Prison.”

“The governor shall have authority to reduce or transfer items or parts thereof within any appropriation, or eliminate any appropriation made herein, or transfer any appropriation or part thereof to the general fund.”

A stipulation signed by the parties reads as follows:

“It is hereby stipulated by and between the above named parties through their respective counsel that the plans, specifications and designs for the construction of the Weber College and Carbon College have been prepared in a preliminary form by the above State Building Commission and that the said plans, specifications and designs have been approved by the State Board of Education, which is the proper party to make such approval.

“It is further stipulated that the Federal Government has allotted to Carbon College for the construction of said building the sum of $123,211 and has allotted to Weber College the sum of $65,592.

“It is further stipulated that the Governor of the State of Utah has set and made available the sum of $330,000 for the purpose of constructing the buildings upon the Carbon College, Weber College and the State Tuberculosis Sanatorium.”

The question submitted to us for determination may be concisely stated to be: Is. the legislative appropriation of $150,000 for the Carbon Junior College and $80,000 for the Weber College inclusive or exclusive of any federal funds that may be available ? That is to say, under the stipulation that federal funds have been made available for the purpose, has the building commission available to it for construction of the Carbon Junior College a total of $273,211, or only a total of $150,000 ; and for the Weber College a total of $145,-592. or only $80,000?

The ambiguity is claimed to exist because of the particular wording of the above section of the statute which, with appropriate deletion, reads:

“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 or other sources as may be made available to use in connection therewith * * * and the order of preference in erecting public buildings shall be: 1. * * * 2. * * * 3. * * * 4. The balance such as there may be, State Prison.”

It is argued that under the rules of statutory construction requiring that effect be given to each word, phrase, clause, and sentence of a statutory enactment (Smith v. Lenzi, 74 Utah 362, 279 P. 893), we must so construe the appropriation that there shall be some money appropriated for the purpose of building a state prison; that if the $150',000, the $100,000, and the $80,000 is the total amount to be expended for the three buildings, including the grant of funds from the federal government, there would then be a surplus for the state prison; while if the appropriation did not include such funds as may be allotted by the federal government, then there would be no balance for the state prison because the first three items exhaust the state’s appropriation of $330,000.

The rule of interpretation is not as. narrow as above stated. Effect should be given to every word, phrase, clause, and sentence of the statute where reasonably possible. Price v. Industrial Commission, 91 Utah 152, 63 P. (2d) 592. The court should, where possible without adding to or taking from the language employed, find a meaning compatible with reason and sense. Robinson v. Union Pac. R. Co., 70 Utah 441, 261 P. 9. In People of Puerto Rico v. Shell Co., 58 S. Ct. 167, 169, 82 L. Ed. —, Mr. Justice Sutherland gave the following rule:

“Words generally have different shades of meaning, and are to be construed if reasonably possible to effectuate the intent of the law makers; and this meaning in particular instances is to be arrived at not only by a consideration of the words themselves, but by considering, as well, the context, the purposes of the law, and the circumstances under which the words were employed.”

The provision with respect to the state appropriation can be given a reasonable meaning, as we shall show hereafter, without affecting the governor’s allocation of the $330,000 to the three buildings first named.

No attack has been made on the particular method of appropriation; that is, where the whole sum is appropriated to the Governor and he is vested with discretion to reduce, transfer, or eliminate items or parts thereof. It is sufficient to say that in the absence of a constitutional provision to the contrary the power of the Legislature on the subject of appropriations is plenary. Parks v. Commissioners of Soldiers’ & Sailors’ Home, 22 Colo. 86, 43 P. 542; Le Febvre v. Callaghan, 33 Ariz. 197, 263 P. 589; 59 C. J. 238; State v. Zimmerman, 183 Wis. 132, 197 N. W. 823.

Before we discuss the question of ambiguity in the appropriation, it is well to have in mind other provisions of the law respecting the state building commission and the two colleges. The powers of the building commission are stated as follows in section 10-0-7, R. S. Utah 1933:

“The Utah state building commission shall carry out the building and expansion program of the state provided by law, as and when funds are from time to time available. The order in which such program shall be carried out, and the time when the various items thereof shall be undertaken and completed, shall be wholly within the discretion of the commission and it is given power and authority to do any and all things which in its judgment may be necessary or proper for carrying out the provisions of this title, including the following express powers and duties:

“(1) To cause to be prepared and submitted, either by its own employees or others, designs, plans and specifications for the various buildings and improvements, and other work to be carried out by the commission; provided, that no building shall be constructed, improvements made or work done for, or on the property of, any state institu tion until the location, designs, plans and specifications therefor shall be approved by the board, commission or officials charged with the administration of the affairs of such institution * * *

“(3) To make contracts for any work which the commission is authorized by law to do or cause to be done.”

By chapter 77, Laws of Utah 1937, Carbon College was created in the following language:

“Upon condition that the taxing units of Carbon county shall provide a suitable campus there shall be at Price City, Carbon county, state of Utah, a state school to be known as the Carbon college, a junior college. The course of study therein shall be limited to the first two years of college work and may be open for registration of students for the school year 1938. Said school shall be maintained by the state.”

In the appropriation bill of 1937 Laws, p. 274, c. 158, is the following:

“To Carbon Junior College for Payment of Operating Expenses for the First Year of Operation or for School Year 1938-1939. . . .$27,000.”

It is alleged in the petition and admitted:

“That the taxing units of Carbon County, Utah, have provided a suitable campus at Price City, Carbon County, Utah, for the erection of the said Carbon College and the title to the said campus has been duly conveyed to the State of Utah and the said Carbon College, and the State of Utah is now the owner of and in possession thereof.”

“That immediately after the enactment of chapter 113, Laws of Utah 1937, the Governor of the State of Utah, m accordance with the laws of this State relating to the subject, directed that the respondents above named, immediately proceed with the construction of the buildings, above mentioned, and made available to the said respondents, the monies appropriated to the said Carbon and Weber Colleges as provided in said Chapter 113.”

We take judicial notice of the fact that Weber College is already in operation and that the appropriation of $80,000 is undoubtedly for an addition to that structure. An adequate appropriation was made to the Weber College for its operation for the school year 1938-1989. The appropriation to Carbon Junior College, above referred to shows the undoubted intention of the Legislature that the college building should be promptly constructed so as to be ready for occupation and use on or prior to the beginning of the school year 1938-1939.

The statute we have quoted above with respect to powers of the Utah State Building Commission vests in it certain discretion with regard to the time when the work shall be undertaken and completed, but it is also enjoined to carry out the building program of the state as and when funds are from time to time available. It might be objected that this court could not issue a writ of mandate requiring the commission to proceed because of its discretion as to when work shall be undertaken. The issue here, however, is quite different. It is alleged and admitted that the commissioners have failed and refused to commence the construction of said buildings or any portion thereof and have declared that they will not do so at all unless so ordered by this court.

We have been advised in argument, and the fact is verified by the stipulation showing the amount of money allocated by the government, that the United States government through its Public Works Administration, will match state money at the ratio of 45 per cent to 55 per cent of the state appropriation. The federal grant was undoubtedly based on the amount of money actually appropriated by the state and allocated by the Governor to the particular purpose for which the federal money was made available.

It is an elementary proposition that the state Legislature cannot appropriate money from the federal treasury. So far as any appropriation was made by the state Legislature, it was of money from state funds alone. The appropriation was $330,000 to the Governor to provide needed state buildings. Any discretion with respect to such appropriation was vested in the Governor and in no one else. Had the Legislature intended to limit the Carbon Junior College to a total cost of $150,000, it could have used language which would clearly place that sort of limitation on the cost of the structure. As it is, the language is susceptible of only one reasonable construction and that is the interpretation the Governor himself has given to it; that the Legislature intended that of the $330,000 appropriated to the Governor $150,000 should be made available to Carbon Junior College, $100,000 to the tuberculosis sanatorium, and $80,000 to Weber College, subject to discretion in the Governor to reduce or transfer part of such sums to some other purpose, a discretion the Governor saw fit not to exercise. The legislative intent disclosed by the statute is that if for any reason it became impossible or impracticable to use the appropriated money for the preferred purposes, the Governor could then allocate such part not used to the state prison. To illustrate, if the Carbon taxing units had failed to furnish a suitable campus on which the college could be constructed, the Governor might then be justified in allocating the $150,-000 to the state prison. Certainly, after the Governor made available the $150,000 to Carbon Junior College and the federal government made available an additional $123,211, there could be no question whatever but that the building commission had the sum of $273,211 for use in the construction of the Carbon Junior College. There might have been some uncertainty, and some legal questions involved, had the Governor seen fit, in the exercise of his discretion, to have deprived the college of part or all of the $150,000 and allocated it to the state prison. This he did not do. If the argument of defendants is that the wording of the statute requires some part of the $330,060 to be allocated to the state prison, it is fallacious. There is no definite appropriation to the prison and there is no requirement that the Governor shall use all or any part of the amount appropriated to him for building purposes for the prison. The appropriation was to the Governor for certain building purposes with some discretion left vested in him and certain preferences announced by the Legislature. The Governor has exercised his discretion in making effective the legislative preference as plainly indicated by the wording of the statute. Neither the building commission nor this court has power to control the action of the Governor within the authority given him by the Legislature.

If we look at the problem from the view of the federal grant, then we arrive at the same result. No matching of the state money is made by the federal government unless and until there is a definite appropriation of such money to a definite purpose, and then the government proportion is 45 per cent as against 55 per cent of state money. The construction contended for by the defendants would lead to this absurd result; that the Legislature’s intent was to limit the cost of the two colleges and the sanatorium to $330,000', the amount of the state appropriation, thus leaving the federal government to finance the state prison. This would be an indirect attempt to appropriate federal money to the state prison.

Another defect pointed out in the act is the reference to chapters 22 and 23, Laws of Utah 1933, as amended. A reading of these chapters in the Laws of 1933 discloses that the subject-matter thereof is entirely foreign to anything related to the subject-matter involved in the appropriation statute and that the citation is a mistake. There are chapters 22 and 23, Laws of Utah 1933, Second Special Session, which provide for participation by the state, cities, and counties in the Public Works Program of the federal government, and authorize the acceptance by the state of grants or loans made by the United States government for use on such a program of public works. We may inquire into the purpose sought to be accomplished in order to supply the missing words. Words which are obviously necessary to complete the sense will be supplied to effect a meaning clearly shown by other parts of the statute. Black on Interpretation of Laws, 2d Ed., 165. The language of the above-quoted section from chapter 113 is sufficient to disclose the legislative intention to build certain structures under the Public Works Program as provided in chapters 22 and 23, Laws of Utah 1933, Second Special Session. We are also aided by the fact that in a prior paragraph of chapter 113 the same chapters 22 and 23 are mentioned and correctly stated to be in Laws of Utah 1933, Second Special Session. Indeed, the effect of the statute would not be impaired if the clause with reference to chapters 22 and 23, Laws of Utah 1933, were omitted entirely, because the general law enacted in chapter 23 of Laws of Utah 1933, Second Special Session, would control the expenditure of moneys where the state and federal moneys were used in a Public Works Program. The omission of the words “Second Special Session” was obviously an oversight on the part of some one which should not stand in the way of a proper construction being given the section. This court cannot assume the Legislature intended anything so absurd and meaningless as the expenditure of these building funds with reference to chapters 22 and 23 of Laws of Utah 1933, which have to do with ratification of amendments to the Constitution of the United States and the appointment of fish and game license agents. The section therefore will be read as if the correction had been made.

In fairness to the members of the state building commission, we should quote the last paragraph of their brief, as follows:

“The State Building Commission and its members are desirous of carrying out the mandate of the Legislature, but say earnestly to this court, they are unable to satisfy their minds as to the meaning of chapter 113, Laws of Utah 1937, and respectfully ask this Honorable Court to construe this language and when and if the language is construed, the Building Commission will build and construct the buildings indicated by decision of said court and under the direction of said Chapter 113 as construed.”

With the meaning of the act clarified, the duty of the commission is clear. It must proceed timely with the construction of the buildings. All the steps necessary to be done before the construction is commenced have been done. The land has been obtained and title is in the state; the money is available from the state treasury and from the federal grants; the amounts specified have been allocated by the Governor to the particular purposes; and plans and specifications have been prepared and approved by the board of education. Under this state of the case there is no discretion in the commission except to proceed with the work. While the commission has certain discretion respecting time and methods of procedure, it has no legal right to exercise such discretion to defeat the expressed will and purpose of the Legislature which is the timely construction of these buildings with state funds and with the aid of federal funds. It is alleged and admitted that the federal government has placed a time limit within which construction must be commenced if its moneys are to be used. The building commission should therefore proceed with construction within the time limited so as to avail itself of the federal funds.

The alternative writ of mandamus heretofore issued is made permanent.

HANSON and WOLFE, JJ., concur.