*1 applicable Under foregoing our decisions statutes and tbe court, this here, undisputed where as disclosed evidence Stoian, Eli deceased, left kin brothers and a as his next of two foreign nephew, living, residing, in, of a domiciled and citizens country, country to-wit, the Russian-dominated communist People’s Republic Rumania, in find- correct so court was ing. following But 91-520, under R. C. M. sec. and the statutes, here, and the court, above decisions this where as no proof treaty made, of a reciprocity or law of the whole of was estate, administration, less public costs of escheats to the Constitution, XI, foreign school fund. Montana Art. sec. 2. Such kin years bring next of or heirs within two action to recover by making proof reciprocity. the estate The order of the district court should be amended to conform seq., with 91-520 et pertinent thereto, sections the statutes conformity in to the decisions of this court above noted. Thus the court’s order would escheat the estate the State Mon- tana, administration, public less costs of fund, to the school and the alien next of kin years or heirs would have two there- proof reciprocity after to make proceedings provided by statute, proceeding and not in this apparently required by majority opinion. CO., v. STATE MONARCH MINING al., Appellants, et Respondents. COMMISSION, HIGHWAY al., et No. 9377. May 19, March 1954. Decided Submitted (2d) 738. *2 Brown, Helena, appellant.
Mr. William A. for Olsen, Atty. Gen., H. Gottwig, Sp. Mr. Arnold Mr. Donald E. Atty. Gen., respondent. Asst. argued orally. Gottwig
Mr. Brown and Mr. ADAIR: MR. CHIEF JUSTICE Appeal judgment from a dismissal. power regulate commerce, Congress
anAs incident its jurisdiction navigable has the United over all waters of States, I, States, Constitution sec. 8. It of the United Article bridges therefore all over such control construction possible navigation. waters obstructions to Congress up Prior to of the time taken much was separate discussion every and action on bills time a over navigable projected. Seventy-ninth Congress waters was passed and, August 2, signed on President Truman Legislative Reorganization 1946, being Public Law alia, inter Bridge Act, V, contains a General Title A., Congress Stat. U. S. Title 525-533, C. secs. wherein gave its consent in advance to the construction of over navigable proposed bridge all waters conditioned on the in each being approved Secretary case Army and the Engineers and, Chief of bridge, the case of that such approved by proper also state department. Thirty-third In 1953 Legislative Assembly the State *3 and, passed of Montana February 16, 1953, on Aron- Governor approved son Bridge an Act known Author- as the Montana Toll ity Act, being Chapter 31 of the Montana Session Laws of 1953. Act authority The creates an known to be as the Montana Toll Bridge Authority composed shall be of the members of highway the who, state commission under the and in addi- powers tion the and upon duties theretofore conferred them commission, empowered members of as such are to establish and a toll toll bridge any public construct or the of highways of this state. regular meeting highway
On October at a of the state unanimously commission it was to erect proposed voted a bridge River, navigable stream, over Missouri the a near the of site of confluence such river and Armells Creek on the Grassrange-Malta-Harlem road, being public a highway also Highway such having known Montana No. construction Hart, highway Scott been recommended P. the state en- gineer secretary-treasurer and ex Montana Toll of the officio Bridge Authority. highway 28, 1953,
Also on October the state of members commission, Bridge Author- assuming to act as the Montana Toll ity, unanimously accepted recommendation the above vote and of the highway state commission with the announced intention initiating proceedings of “for the issuance bonds of $450,000 financing amount of Montana’s of the State of constructing share the Missouri of costs of over Project.” River as a Federal Aid 29, 1953, plaintiffs, Mining On December Monarch Com- pany, corporation, Jones, a D. individual, and L. an com- plaint filed in County, the district court of Lewis and Clark against defendants, highway commenced this action the state commission the State of Montana and ex officio the Montana Authority, Bridge Toll individual members of such com- —the authority, highway mission and engineer state also the and —the governor, treasurer, attorney secretary state, auditor and general the State Montana. Chapter 31, plaintiffs Act,
The aver that the Laws of provisions various of the and violates Montana Constitution they bring and of themselves and their action for on behalf injunction permanent similarly all to secure a others situated establishing locating enjoining from or the defendants purported under collecting any fees or tolls and from authority the Act. and complaint states: reside in Lewis That Montana, state,— taxpayer each a in the County,
Clark —that operated driven operates gasoline and vehicles that each owns been state, each has highways and the roads over —that part required pay, as required and will hereafter gaso- they use, motor fuels gasoline purchase Montana with the by the State of collected line levied and tax *4 gasoline upon tax falls burden of such the direct result tax on pass able to and cannot they are not them,—that 250,000 than like owners more one of others, each is but —that operators and Mon- gasoline driven in the State of vehicles tana, pays of his own each as an consumer out ultimate —that pocket tax, gasoline the in addition thereto said license —that plaintiff charges required pay each will be tolls and other operating in the motor and across toll' vehicles over Act, Chapter State of under the the provisions Montana of the particular proposed Laws of and in the to be erected over the near Missouri River the site of con- fluence Highway of said river and Montana Armells Creek on proposed No. 19 by by to be established recommendation highway Montana state by commission and action said com- mission, officio, Authority. ex Bridge Montana Toll
A general interposed demurrer defendants to the com- plaint herein whereupon was overruled defendants answered admitting complaint most of averments specifically but denying that the any provision Act violative of of Montana’s Constitution or that are adequate remedy without an at law.
The cause was submitted to the district court the ultimate pleaded complaint facts in the and admitted and answer without evidence, the introduction of following other by judgment entered the application district court denied the injunction complaint. for an and dismissed the appeal judgment. an This is from the only that plaintiffs interest showed was that each is a resident, taxpayer citizen county of the wherein the official they defendants have residence and perform wherein statutory their plaintiff pays functions and that each a tax on gallon gasoline part purchase each or motor fuel as price suffi plaintiffs plead thereof. Such interest is not judicial power determining exercise cient to invoke the legislature, Chapter 31, the Act of the Laws of whether Matthews, Chovanak v. is violative of the Constitution. (2d) 582. 520, 527, Mont. debts of the authorized do not create
The bonds principal or interest on pay nor are the funds to state *5 70
the bonds be derived from taxes gasoline levied or collected on or other property purchased, possessed by plaintiffs owned or or other residents, operators citizens or of the state.
“A clear distinction between appears taxes and tolls to be recognized. Taxes are support levied for the government, their regulated amount by is its necessities. Tolls are the com pensation for the use property, improvements another’s or of by him; made their amount is determined the cost property, or improvements, and a consideration of the return which such expenditures or yield. values should It has been stated that a tax is a demand is sovereignty; of a a toll proprietorship. demand of Thus, there analogy is no between imposition levying improvement taxes and the of tolls for highways.” Jur., Taxation, 17, p. Compare 51 49. Am. sec. Sjostrum 11 S., Bridges, 51, p. 1079; Highway C. J. v. sec. State Commission, 565, (2d) 238; 124 228 v. 562, Mont. Pac. State 1095; Kruse, McKinney, 375, 388, 29 Mont. Brackman v. (2d) 971; People ex rel. v. Mont. Pac. Curren Schommer, (2d) 744, 167 A. R. 1347 392 Ill. 63 N. E. L. 1356; Imp. Co., 123 Manistee River and note at Sands v. p. 113, 31 149. U. S. 8 S. Ct. L. Ed. Act, alia, provides:
The inter (1) authority hereby provide “Section The authorized to * * bridge for the issuance of toll revenue bonds for the paying any bridge. principal purpose of the cost of The payable solely such bonds shall be from the and interest of provided special payment, fund herein for such and such bonds debt, liability obligation Mon shall not be a or of the State of only by the toll tana, and shall be secured the revenues from * * * bridge bridges constructed virtue of this act. or toll a state All under act shall contain “(2) bonds issued this obligated not that the state shall be ment the face thereof on except special from the interest thereon pay the same or the * * * provided for. hereinafter fund * * * solely used such bonds shall be proceeds of “(3) any constructed here- payment, cost under, proceeds and the disbursed in such of such bonds shall be authority provide. manner and under such restrictions as the =$ % -fe moneys pur-
“Section 6. All received from bonds issued suant applied solely payment to this act shall to the cost of the toll payment for the of which such bonds issued, hereby were granted and there shall is created and be and a lien moneys until applied, so favor of the holders of such bonds.
“Section 7. In connection with the issuance and in order *6 payment bonds,’ secure the such authority of the shall have power: “ (a) pledge any part tolls, To all or income, profit and any revenue of bridge, pay such toll and to covenant to such tolls, income, profit appropriate and revenue into the fund therefor.
“ (c) special funds, create a To fund or in addition to those required by act, this moneys for principal reserved for and interest on bonds meeting contingencies and for in operation the * * any and maintenance bridge of such toll *. authority
“Section 8. The is hereby empowered to fix the charges rates toll and other bridges for all toll built under act, the terms of this and from time to time change to such rates * * * charges. toll and other Whenever bridge the toll revenue purpose paying any bonds issued for the the bridge cost of toll shall have been retired and the cost construction such toll bridge thereby repaid full, have been bridge shall such there- operated by highway maintained after shall be and state bridge. as a free commission ^ ^
4!: ^ highway engineer shall have full The state “Section that be author- all toll charge the construction of authority, bridge and shall have full by the Montana toll ized and, thereof, maintenance under operation and charge of the supervision subject rules and authority of said and to its regulations highway engineer charge of said state shall have deposited the collection tolls, of all which tolls shall be to respective designated by credit bridge revenue fund authority. “Whenever funds are available for the construction of hereunder, highway engineer proceed shall state with thereof, the construction but all such con- contracts for highway struction shall be let state com- commission petitive bidding, after it such notice and such terms as prescribe by shall its regulations.” rules and pleading There neither proof is nor there ever was a bridge over the Missouri River at or near the confluence of prejudice the river and Armells Creek. Plaintiffs suffer no from having provide benefit, a structure that will them a enjoyed. service and convenience not heretofore agents. facility provided are free When the they enjoy right voluntarily shall elect whether or not they they care to use the If service so made available. elect not bridge they defraying use pay nothing toward the cost they if its construction and maintenance. On the other hand voluntarily elect use the when built then and for benefit, they supplied be re- service convenience so shall pay regular fee, charge quired to toll or exacted of other *7 moneys go users which so the fund collected into or funds from paid which are to be the costs of construction and maintenance by the retirement bonds and for authorized the Act. .of only fail that they adversely Plaintiffs not to show will be they affirmatively by pro- affected the Act but show that the posed construction will of benefit and convenience all who be to supplied. use the service about to be care to adversely by affected only that those settled It is well question will be heard to its constitu operation a statute 418, 438, 282; 155 Pock, 51 Mont. Pac. State tionality. Barth v. 478, 490, 276 Cook, 958; Mont. Pac. 84 Rider v. ex rel. Brooks (2d) 261; 313, 23 Pac. State ex rel. 94 Cooney, 295, Mont. v.
73 115; Riley 582, (2d) 64 Pac. Court, 576, v. District 103 Mont. (2d) 460, Greene, 467, ex 104 67 Pac. State rel. Griffin v. Mont. 995, Co-op. State 770; Thompson 111 A. R. Root L. v. Tobacco (2d) Grazing Dist., 445, 450, 121 193 Pac: 811. Mont. their questions unless
Constitutional will not be determined disposition case. determination is essential to a of the Dickey County, 121 Board Clark of Com’rs of Lewis and v. 227, 223, (2d) 315; Mont. Montana State Board of Pac. in v. Photography Keller, Examiners Mont. (2d)
Pac. 503. constitutionality Act, Chapter While the Montana proper Session Laws a party tested in a proper case, the present record before us not a does case. plaintiffs wholly they have failed to show were or are that position question in constitutionality a either in the district court court, only proceed or in this it is in a ing special in peculiar rights behalf of one whose are affected judicial power statute the court’s to determine the constitutionality of is properly such statute invoked. Chovanak Matthews, 520, 527, (2d) v. 120 Mont. complaint
Since the herein present proper does not ease for the court to questions determine constitutional attempted plaintiffs raise, have the district lacking court was judicial power adjudicate portion same and that judgment attempting question nullity. to determine such is a general
The defendants’ demurrer complaint to the should have been sustained and it is ordered that that portion of the judgment denying injunction and adjudging that the com- plaint be dismissed be and it is affirmed.
MR. JUSTICES BOTTOMLY FREEBOURN, concur. MR. ANDERSON, (dissenting). JUSTICE parties question right Since none of to' presented here questions maintain the action and since the raised concern, public are of this court pass should on the case *8 the need of its merits rather than burden those interested with closely seeking plaintiff, more fit our tech- out new who nical niceties. taxpayers question interest
Resident have sufficient validity Chapter. 31, 1953, before the court of Laws of Montana. expression from me purpose
No useful would be an served regarding I therefore reserve it. the merits of the case,,
MR. JUSTICE ANGSTMAN:
I Anderson. foregoing concur in the dissent of Mr. Justice PAUL, Relator, STATE v. DISTRICT COURT ex rel. DISTRICT, FOURTH JUDICIAL in and for Respondents. COUNTY, LAKE al., et 9425. No. May May 18; 20, 1954. Submitted 1954. Decided (2d) Pac.