ELLEN CORNWALL, Herbert Jones, and Donn Pennell, et al., Plaintiffs and Respondents, v. THE STATE OF MONTANA, acting By and Through the DEPARTMENT OF JUSTICE, the Law Enforcement Academy Bureau, et al., Defendants and Appellants.
No. 87-380.
Supreme Court of Montana
Submitted Dec. 3, 1988. Decided March 8, 1988.
752 P.2d 135
Thomas P. Meissner argued, Lewistown, for plaintiffs and respondents.
MR. JUSTICE SHEEHY delivered the Opinion of the Court.
The Lewistown Montana Law Enforcement Academy Committee, chiefly Ellen Cornwall, Herbert Jones and Donn Pennell, brought an action for declaratory judgment in the District Court, Tenth Judicial District, County of Fergus, against officials and employees of the State of Montana, chiefly Mike Greely, as Attorney General and the head of the Department of Justice. The Committee applied for and obtained from the District Court a preliminary injunction pendente lite enjoining and restraining the defendants in legal effect from taking any step for the purchase or lease of modular buildings or facilities currently being used by the Montana Law Enforcement Academy in Gallatin County, Montana.
For ease of reference, we will denote the plaintiffs collectively as the Committee and the defendants collectively as the Attorney General.
The Attorney General appeals the issuance of the preliminary injunction pendente lite to this court. On consideration and examina-
This case involves the interrelation of statutes which provide for the procurement of real and personal property for the operation of state government; it also involves the jumble of conflict which arose when the legislature provided separately for the procurement of property for the Montana Law Enforcement Academy. It is in threading through the jumble that we determine that the preliminary injunction must be dissolved.
Statutory authority for the establishment of the Montana Law Enforcement Academy was enacted in 1959 (Ch. 7, Laws of Montana (1959)). In general, the Academy was to be governed by the Department of Justice (
44-10-202. Powers and duties of department. The Department of Justice shall have the power and it shall be its duty to:
(1) Choose a site for the Montana Law Enforcement Academy at the unit of the university system of Montana which in the determination of the department is best suited for the needs of the academy.
. . . .
(10) Do all other things necessary and desirable for the establishment and operation of the academy not inconsistent with this chapter or the constitution and statutes of the State of Montana; . . .
The original location chosen for the Academy was on the campus of the Montana State University at Bozeman. In 1977, the Montana Board of Regents stated that the Academy must be relocated due to the need for space on the campus occasioned by a substantial increase in the student population. In July, 1978, the Attorney General, on behalf of the State, entered into two agreements which in effect continued the location of the academy in Bozeman.
On July 27, 1978, Donald Cape and Jo Ann Cape entered into an option agreement with the Attorney General, granting to the Attorney General, on or before September 1, 1988, the right to purchase certain listed personal property for the purchase price of $442,500.00. Upon the exercise of the option by the Attorney General, the option price would be reduced by the amount of principal and interest payments made by the Capes on the indebtedness incurred by them to acquire and fund the personal property subject to the option. The resulting figure would be the purchase figure for the
A day later, on July 28, 1978, Donald Cape and Jo Ann Cape entered into a lease agreement with the Attorney General whereby the Capes leased to the state for a term of 10 years ending on September 31, 1988, the same modular buildings and equipment as the personal property listed in the option. The lease provided for an annual rent of $107,000.00, payable quarter-annually, escalated by certain factors, including inflation, as contained in the lease. The lease provides that the state occupancy is for the purpose of the Law Enforcement Academy.
Under the option agreement, the Attorney General exercised the option to purchase the personal property on June 30, 1987, when the Attorney General notified the Capes in writing to that effect. Disagreement as to the exact option price exists. As of July 1, 1987, the Attorney General determined the option purchase price to be $80,745.62, while the Capes determined the purchase price to be $295,032.63. No money as yet has been transferred to complete the option.
Long Range Building Program
Through all of the foregoing history of the dealings by the Attorney General with Don and Jo Ann Cape, there have been in effect statutes pertaining to the long range building program of the state.
There is, however, no provision in the chapter regarding long range building programs making the process therein exclusive as to the acquisition of property for the operation of state government. In the case of the Academy, each year since 1978, the legislature has appropriated, and the legislative auditor has consented to, the monies
Duties of the Department of Administration
In this state, we have a Department of Administration, whose department head is appointed by the governor (
The Department of Administration is further given the authority, as part of the long range building program, to enter into rental contracts which provide an option to purchase the leased building used by the state or any department of state government.
In this case, the Committee contends that the lease and separate option agreement entered into by the Attorney General with the Capes should have been governed by the provisions of
We see no merit in the Attorney General‘s contention that this is not a lease-option agreement simply because the instruments are separate. Undoubtedly, the lease payments made by the State under the lease agreement in this case were utilized by the Capes to make
Amendment of Section 44-10-202, MCA
The complicating factor in this case is that in 1985, the legislature amended
(1) Choose the site for the Montana Law Enforcement Academy at the unit of the university system of Montana, which in the determination of the department is best suited for the needs of the Academy.
The amendment, however, left in effect the provisions of subparagraph (10) of the section which empowered the Department of Justice to do all other things necessary and desirable for the establishment and operation of the Academy not inconsistent with other statutory provisions.
For the purposes of this case, the net effect of the 1985 amendment of
1987 Budget Amendment
The Department [of Justice] shall purchase the modular facilities in Bozeman that currently house the Montana Law Enforcement Academy. For the purpose of purchasing such facilities, the Department is authorized to expend funds appropriated in item 10(a).
Item 10(a) provides a total of $622,291.00.
The 1987 budgetary direction is, of course, in conflict with the provisions of
The Preliminary Injunction
The District Court, in issuing the preliminary injunction, made findings of fact pertaining to the cause. It noted the execution of the option agreement and the subsequent lease agreement with the Capes; it noted that more than 20 proposals for the location of the Academy have been submitted by various communities in Montana, including one submitted by the residents of Fergus County, of which group the plaintiffs were members; it noted the 1987 budgetary direction to purchase the modular facilities; and then it made certain conclusions of law.
In its conclusions, the District Court determined that the committee had met the threshold standard of
Thereafter, in a separate instrument, the court issued its preliminary injunction on July 17, 1987, restraining the defendants from entering into any discussions, consultations or negotiations for the purchase or release of modular buildings or facilities; from executing, signing or entering into any oral or written agreement for the purchase or release of those modular buildings or facilities; from exercising any option to purchase the personal property described in the option agreement or from seeking to accomplish payment of any sum for the purchase of those facilities; and from exercising any option to renew or extend the lease of personal property from the Capes. No bond is required of the plaintiffs.
On appeal, the Attorney General contends that the issuance of the preliminary injunction was improper, that the injunction was overbroad, and that the District Court erred by not requiring a written undertaking pursuant to
Although there are conflicts in the statutes pertaining to the Academy, the rules of statutory construction lead us to conclude that insofar as the statutes are concerned, the Attorney General had the authority in 1978 to select the site for the Academy and to enter into the lease and option. By statute, we are required in the construction of statutes, to pursue the intention of the legislature where possible, and we are commanded that when general and particular statutory provisions are inconsistent, the particular provisions are paramount, so that a particular intent governs a general one that is inconsistent with it.
The 1987 budgetary direction to the Department of Justice to purchase the modular facilities is on the same footing as other stat-
The case for the respondents must ride or fall on whether the provisions of
Section 11 . . . (4) A general appropriation bill shall contain only appropriations for the ordinary expenses of the legislative, executive and judicial branches, for interest on the public debt, and for public schools. Every other appropriation shall be made by a separate bill, containing but one subject.
Section 12. Local and special legislation. The legislature shall not pass a special or local act when a general act is, or can be made, applicable.
The District Court determined that each of the foregoing constitutional provisions were offended in this cause (1) because the 1987 budgetary provision was not for an ordinary expense and (2) because the budgetary direction is a special or local act. The Committee contends that Miller Insurance Agency v. Porter, supra, applies here, in determining whether the purchase of the modular facilities is an ordinary expense. In Miller, we defined such expenses as:
Any expense which recurs from time to time and is to be reasonably anticipated as likely to occur in order for the proper operation and maintenance of the departments of the state government is an ordinary expense.
93 Mont. at 571, 20 P.2d at 645. We find the citation inapplicable here, however, because under the terms of the lease, the expense of purchase is certain to occur during the biennium and none can doubt the power of the legislature to make provision for biennial expenses through appropriations, whether those expenses are incurred through purchase or by lease.
We also determine that the budgetary direction of 1987 does not offend
We determine, therefore that the 1987 budgetary direction does not offend the state constitution as either a special or local act or as an appropriation beyond an ordinary expense.
We therefore determine that the Committee has failed to meet the standards required for the issuance of a preliminary injunction under
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, GULBRANDSON, HUNT and McDONOUGH concur.