Hersey v. Neilson

131 P. 30, 47 Mont. 132, 1913 Mont. LEXIS 33

• Court: Montana Supreme Court
• Decided: March 19, 1913
• Docket: No. 3,288
• Status: Published

Opinion

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On March 8, 1912, the board of county commissioners of Hill county, Montana, let a contract to B. B. Weldy, proprietor and publisher of the “Chester Signal,” a newspaper which had been published in Hill county for more than six months prior thereto, to do the county printing, including the furnishing of blanks, blank books, etc. Thereafter Weldy sublet to the Shaw-Borden Company, of Spokane, Washington, the contract to furnish all blank record books, warrant books, certificate books, registers, and bound books of- every description to be used by the county. This action was commenced by a resident taxpayer to secare an injunction restraining the board of county commissioners from allowing the account of Weldy for supplies furnished through the Shaw-Borden Company, or from directing a county warrant to be issued to pay for such supplies, and to restrain the county treasurer from paying for such supplies. Upon the complaint a temporary injunction was issued. The defendants demurred to the complaint and moved to dissolve the injunction. The demurrer was overruled, and the motion to dissolve denied. Defendants thereupon stood upon their demurrer, suffered judgment to be entered against them, and have appealed.

It is insisted that section 2897 of the Revised Codes is unconstitutional, and this presents the only question for our determination. After providing for letting public printing contracts, that section of the Codes proceeds: “All newspapers which may receive any contract for printing under this Act which may not be able to execute any part of such contract shall be required to sublet such contract or portion of contract to some newspaper or printing establishment within the state, which may be competent to execute such work. * * * ”

1. In their brief counsel for appellants attack the statute, and say: “It is our contention that a county is a municipal [1] corporation, having governmental and proprietary functions; that as to the former the state’s control is supreme, but as to the latter the state’s control is no more extensive than it is over private corporations; that county printing is a matter solely of local concern, and comes within the proprietary functions of a county, and that the above provision of section 2897 is an unconstitutional restriction upon the power of a county to contract as to its local affairs.” If the statement, “a county is a municipal corporation, having governmental and proprietary functions,” is true, the conclusion announced above might follow. But we are not able to agree with counsel that the premise states correctly any rule of law.

The word “municipal” means “pertaining to a city or a community within a state, possessing rights of self-government.” (Anderson’s Law Dictionary.) It is derived from the Latin “municipalis,” which in its origin referred to a town possessing the rights of Roman citizenship and governed by its own laws; in other words, to a free town. (Webster’s International Dictionary.) A municipal corporation is “a public corporation created by government for political purposes and having subordinate and local powers of legislation.” (Bouvier’s Law Dictionary.) Every authority on municipal law makes clear the distinction between a municipality and a county, as the word “county” is used in the Constitution and statutes of this state. In 1 Dillon on Municipal Corporations, fifth edition, section 32, the author says: “We may therefore define a municipal corporation in its historical and strict sense to be the incorporation by the authority of the government of the inhabitants of a particular place or district, and authorizing them in their corporate capacity to exercise subordinate, specified powers of legislation and regulation with respect to their local and internal concerns. This power of local government is the distinctive purpose and the distinguishing feature of a municipal corporation proper.” And again, in section 34: “All corporations intended as agencies in the administration of civil government are public, as distinguished from private corporations. Thus an incorporated school district, or county, as well as a city, is a public corporation; but the school district or county, properly speaking, is not, while the city is, a municipal corporation.”

That the framers of our Constitution did not intend municipal corporations to include counties is clear, for the two terms are used to distinguish different organizations (sec. 6, Art. XVI; sec. 4, Art. XIII; People v. McFadden, 81 Cal. 489, 15 Am. St. Rep. 66, 22 Pac. 851). A county is a body corporate (sec. 2870, Rev. Codes), so, likewise, is a school district (section 848); but neither possesses the powers of local legislation and control which are the distinguishing characteristics of a municipal corporation. (State v. Leffingwell, 54 Mo. 458; State v. Barker, 116 Iowa, 96, 93 Am. St. Rep. 222, 57 L. R. A. 244, 89 N. W. 204; Memphis T. Co. v. Board of St. Francis Levee Dist., 69 Ark. 284, 62 S. W. 902.)

Because of its autonomous character — its enjoyment of a large measure of organic independence — the municipal corporation is relieved to a considerable extent from officious, meddlesome legislation which seeks to interfere with its private or proprietary functions. The theory of local self-government for municipal corporations is firmly established in this state. (Helena Con. Water Co. v. Steele, 20 Mont. 1, 37 L. R. A. 412, 49 Pac. 382; State ex rel. Gerry v. Edwards, 42 Mont. 135, Ann. Cas. 1912A, 1063, 32 L. R. A., n. s., 1078, 111 Pac. 734.) But because of the difference in the character of a county and a municipality, the authorities which restrain the legislature from intermeddling with the private affairs of the municipal corporation are not in point when the question for determination is the right of the legislature to control county affairs.

‘ ‘ It is well-established law that a county is an involuntary corporation for governmental purposes, and is in no sense a business corporation; that the powers and obligations of the county are such only as the law prescribes or as arise by necessary implication therefrom. (Eikenberry v. Bazaar Township, 22 Kan. 556, 31 Am. Rep. 198; Commrs. of Marion Co. v. Biggs, 24 Kan. 255; 11 Cyc. 497; 7 Am. & Eng. Ency. of Law, 947.) Cities, however, in this state are municipal corporations, and neither their powers nor obligations are so restricted, and decisions as to their liability for negligence have no application here.” (Silver v. Board of Commrs., 76 Kan. 228, 91 Pac. 55.)

In 1 Dillon on Municipal Corporations, section 35, the author says: “With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy.” In section 37 of the same work the distinction between municipal corporations on the one hand and political or civil divisions of the state created for administrative purposes, such as counties and school districts, on the other, is made clear. (See, also, Shipley v. Hacheney, 34 Or. 303, 55 Pac. 971.)

“A county is one of the civil divisions of the state for political and judicial purposes, created by the sovereign power of the state of its own will, without the consent of the people who inhabit it. (7 Am. & Eng. Ency. of Law, 2d ed., 900.) It is quasi corporate in character, but has only such powers as are expressly provided by law or are necessarily implied by those expressed.” (Independent Pub. Co. v. Lewis & Clark County, 30 Mont. 83, 75 Pac. 860.)

In Board of Commissioners v. Watson, 7 Okl. 174, 54 Pac. 441, it is said: “A county is but a subordinate, political subdivision of sovereignty created for governmental purposes and for greater convenience in carrying on the public affairs.”

“A county is a governmental agency or political subdivision of the state, organized for purposes of exercising some functions of the state government, whereas a municipal corporation is an incorporation of the inhabitants of a specified region for purposes of local government.” (County of San Mateo v. Coburn, 130 Cal. 631, 63 Pac. 78.)

In speaking of a county, the supreme court of Oregon, in Yamhill County v. Foster, 53 Or. 124, 99 Pac. 286, said: “It is merely a political agent of the state created by law for governmental purposes, and is charged with the performance of certain duties for and on behalf of the state.”

“Counties are not in any respect business corporations for private purposes; nor are they organized exclusively for the common benefit of citizens and property holders within their respective limits. They are of a purely political character, constituting the machinery and essential agency by which free governments are upheld, and through which for the most part their powers are exercised. Their functions are wholly of a public nature. Counties are subordinate agencies for the orderly government of the state within the scope of their authority; hence they are subject to the control and direction of the legislature in which chiefly the sovereignty of the state is represented and exercised.” (11 Cyc. 341.) In State v. Board of Commissioners, 170 Ind. 595, 85 N. E. 513, it is said: “A county is an involuntary corporation, organized as a political subdivision of the state by the legislature, the sovereign power, solely for governmental purposes. Such subdivisions are instrumentalities of government, and exercise the powers delegated by the state, and act for the state.” In speaking upon the same subject, and to the extent of the state’s control over a county, the supreme court of the United States, in Rogers Locomotive Machine Works v. American Emigrant Co., 164 U. S. 559, 41 L. Ed. 552, 17 Sup. Ct. Rep. 188, said: “The county of Calhoun is a mere political subdivision of the state, created for the state’s convenience, and to aid in carrying out, within a limited territory, the policy of the state. Its local government can have no will contrary to the will of the state, and it is subject to the paramount authority of the state, in respect as well of its acts as of its property and revenue held for public purposes. The state made it, and could, in its discretion, unmake it, and administer such property and revenue through other instrumentalities.”

Since the enactment of Chapter 112, Laws of 1911, the involuntary character of counties in this state is somewhat modified, but the change thus wrought in the method of creating new [2] counties does not affect their status as political subdivisions of the state for governmental purposes. We think it very clear that only incorporated cities and towns are municipal corporations in this state.

Of course, the authority of the legislature over the affairs of the county is not plenary. There are certain restrictions imposed by the Constitution, for instance: “The legislative assembly shall not levy taxes upon the inhabitants or property of any county.” (Sec. 4, Article XII.) But legislative power over counties is supreme, except in so far as it is restricted by the Constitution in express terms or by necessary implication. (11 Cyc. 343; State v. McFadden, 23 Minn. 40; Rogers Locomotive Machine Works v. American Emigrant Co., above.)

In speaking of counties and their enforced submission to legislative control the supreme court of Colorado said: “They are purely auxiliaries of the state, and to the general statutes of the state they owe their creation, and the statutes confer upon them all the powers they possess, prescribe the duties they owe, and impose the liabilities to which they are subject.” (Board of Commrs. v. Wheeler, 39 Colo. 207, 89 Pac. 50.)

That the authority of the board of county commissioners of [3] Hill county to let a contract for county printing must be found written in the statutes, or necessarily implied, or it does not exist, is well understood. (State ex rel. Lambert v. Coad, 23 Mont. 131, 57 Pac. 1092.) In Morse v. Granite County, 44 Mont. 78, 119 Pac. 286, this court, in speaking of the authority of a county, said: “Its board of commissioners — -its executive body — is a body of limited powers, and must in every instance justify its action by reference to the provisions of law defining and limiting these powers.” Indeed, the Code itself (section 2870) declares the same rule: “Every county is a body politic and corporate, and as such has the power specified in this Code, or in special statutes, and such powers as are necessarily implied from those expressed. ’ ’ Under the doctrine of the maxim, “Expressio unius exclusio alterius,” the county does not have any powers other than those indicated in section 2870 above. The legislature in its wisdom has seen fit to prescribe the conditions upon which its agents — the counties — may conduct county business, and in the absence of constitutional restriction the authority to do so cannot be doubted.

In determining that the legislature has power to control the manner in which county road work shall be done the supreme court of North Carolina said: “Counties are but agencies of the state government. They can be created, changed, or abolished at the legislative will. * * * They are subject to legislative authority which can direct them to do as a duty all such matters as they can empower them to do.” (State ex rel. Tate v. Commissioners of Haywood County, 122 N. C. 812, 30 S. E. 352. See, also, Jones v. Commissioners, 137 N. C. 579, 50 S. E. 291.) The [4] manner in which printing contracts shall be let is one of legislative or governmental policy, a question with which the-courts have nothing to do. (State v. Livingston Concrete B. & F. Mfg. Co., 34 Mont. 570, 9 Ann. Cas. 204, 87 Pac. 980.)

2. Again, counsel for appellants say: “As the provision of section 2897 under consideration bars outside competition, it prevents a county from getting the best work possible, and requires it to pay a higher price for its printing than if the newspaper to which the contract is awarded were permitted to sublet it to a printing establishment outside the state.” In this instance the premise is correct, but the conclusion is unwarranted. There is not anything before us to indicate that the cost of county printing and supplies will be greater or the quality of the work poorer by reason of the restriction found in section 2897. It is admitted that there are many printing and publishing establishments within this state fully equipped and competent to supply any of the matters or things specified in Weldy’s contract which he himself could not furnish; and for aught we know these Montana concerns may be willing to do the work or furnish the supplies as cheaply as any outside concern. In the absence of any showing that in its operation section 2897 imposes upon the taxpayers an arbitrary burden greater than they would otherwise have to bear, it is unnecessary to consider the effect of legislation which takes from one citizen his property and confers it upon another to swell his own private income.

We fail to see wherein the statute under consideration does [5] violence to the provisions of either the Fifth or Fourteenth Amendment to the Constitution of the United States, or section 3 of Article III of our own state Constitution.

3. Based upon the assumption that by reason of the restriction in section 2897 county printing costs more than it otherwise [6] would, counsel for appellants argue that the statute operates to take from the taxpayers a portion of the public moneys which might otherwise be saved, and thus indirectly operates to tax the inhabitants of the several counties, in violation of the provisions of section 4, Article XII, of our state Constitution. It is unnecessary to consider what the result would be if the fact which is assumed to exist had any real existence. Since there is not anything in the record to justify the assumption made, it is idle to pursue the inquiry further.

4. Again, it is insisted that the provisions of section 26, Article V, of our state Constitution, are violated by the enactment of [7] this statute, in that section 2897 is a local or special law regulating county affairs; and authorities are cited which seem to uphold the view that a statute of this character is not general or uniform in its operation. In 36 Cyc. 986, the terms “local” and “special,” as applied to statutes, are defined as follows: “A special or private Act is a statute operating only on particular persons and private concerns.” “A local Act is an Act applicable only to a particular part of the legislative jurisdiction.” (See, also, 26 Am. & Eng. Ency. of Law, 2d ed., 532.) These definitions were approved by this court in State ex rel. Geiger v. Long, 43 Mont. 401, 117 Pac. 104, and we think they are correct. When we consider that section 2897 is state wide in its operation, it cannot be classed as a local statute; and, since it applies to all county printing contracts, it is not special.

5. Finally, it is insisted that the section under consideration [8] is invalid because, by preventing outside concerns from bidding upon county contracts or furnishing the counties with necessary supplies, it amounts to a regulation of interstate commerce. Two cases are cited: People v. Buffalo Fish Co., 164 N. Y. 93, 79 Am. St. Rep. 622, 52 L. R. A. 803, 58 N. E. 34, and People ex rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. 776. The first is clearly not authority in this instance. In it was considered! one section of the Fish and Game Law of New York, which imposes a penalty upon anyone who has in his possession certain kinds of fish during certain periods of the year. The Buffalo Fish Company imported from Canada fish of the proscribed variety, and an action was commenced to recover the penalty. It was held that in so far as the statute affected the possession, by citizens of New York, of fish imported from a foreign country, it operated to regulate commerce between the United States and a foreign country, and was therefore void. In the second case there was called in question the validity of a statute of New York which provided that all stone, except paving blocks and crushed stone, used in state or municipal works within the state of New York or which was to be worked, dressed, or carved for use, must be worked, dressed, or carved within the boundaries of New York state. By a divided court it was held that the citizens of other states having cut or dressed stone for sale had a right to compete in bidding for municipal work in New York, or at least had the right to sell their products to municipalities in New York state, and that the statute in question operated as a regulation of interstate commerce and was void. Parker, C. J., presented a vigorous dissenting opinion, the logic of which commends it to us.

Of course, it would not be within the power of the legislature of this state to say to an individual citizen, “You cannot have printing or bookbinding done unless you let the work to a Montana concern”; but, as Judge Parker points out in his dissenting opinion above, the state could not deny to a citizen the right to say, “I will not patronize any outside concern for my printing or bookbinding,’’-and, if an individual or a private corporation in this state should insist that his or its printing be done by a Montana concern, no one would suggest that the right thus asserted could not be insisted upon. As we have already determined, a county is but an agency through which the state transacts a portion of its business. The state speaks through its legislature, and in our opinion has the same right that any individual citizen has to declare that it will procure its supplies, or have the supplies for one of its constituent parts procured, from a Montana concern.

In Tribune Printing & Binding Co. v. Barnes, 7 N. D. 591, 75 N. W. 904, the supreme court of North Dakota had for consideration a statute which provided: “All county printing shall be done in the state, and if practicable in the county ordering the same.” In construing this statute the court used the following language: “Again, it is argued that if section 1807, supra, is construed to prohibit county officials from procuring county supplies or printed, matter from those who manufacture such supplies at places without the state, it would operate to violate section 8 of Article I of the federal Constitution relating to commerce among the states. No authority is cited in support of this contention by counsel, and we are unaware of the existence of any such authority. Viewed as a question of principle, we are unable to see why the state is forbidden to do what an individual certainly may do with impunity, viz., elect from whom it will purchase supplies needed in the discharge of its corporate functions. If such election may lawfully be made, it certainly is competent for the state to direct its officials by a mandatory statute to procure their office supplies from those who produce the same within its own limits, it having elected to purchase none other, either for the use of the state as such, or for the use of subordinate political bodies within the state.” In considering this same objection to a statute similar to our own, the supreme court of Idaho, in In re Gemmill, 20 Idaho, 732, Ann. Cas. 1913A, 76, 119 Pac. 298, reached the conclusion that such a statute does not operate to regulate or restrict interstate commerce. Whether the legislation under consideration is wise or otherwise is not a matter of concern at this time, but that in the absence of constitutional inhibition the legislature may impose the restriction found in section 2897 is not open to doubt. Since no provision of the Constitution has been called, to our attention which restricts the legislature in its control over county affairs in the respect mentioned in this statute, our conclusion is that the section is not open to any of the objections urged against it.

The judgment of the district court is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.