*1 344 military, open, power,
elections shall be free and civil or no prevent at time exercise of the interfere to free ’’ right suffrage. here, provisions
Under the circumstances statute and cited, right prevent the Constitution no court has people voting for their to fill the choice of nominees va- cancy existing public now the board railroad service commissioners; knowing person, and no fair-minded the facts law, any good why people can offer reason should right not their exercise to so vote.
MR. JUSTICE ANDERSON: agree opinions I foregoing with the result reached in the but not all with that is said in them. MONTANA, OF OLSEN,
STATE rel. ARNOLD H. AT- ex GENERAL, TORNEY v. MONTANA Appellant, Relator Respondents. BOARD, et ARMORY al., Defendants No. 9366. May 28, Submitted 1954. Decided October 1954. (2d) 275 Pac. *2 Brickett, Moody Mr. Olsen, Atty. Mr. Arnold H. Mr. H. Gen., Crowley, Attys. Gen., appellant. William F. Asst. for Clarke, Helena, respondents. Mr. William PI. orally. Crowley argued
Mr. and Mr. Clarke MR. FREEBOURN: JUSTICE Montana, plain-
By complaint, July 2, 1953, the State filed pre- general, appellant, through attorney sought tiff and its thereof, Armory de- vent the Montana and the members described respondents, conveying certain fendants and Armory” “Poplar property, real referred Montana. complaint out that an alternative writ issue The asked being during conveyance made preventing such district court writ, hearing action, after pendency had, permanent. be made filed temporary issued the defendants their writ
The 21, 1953. August answer on court, September 21, 1953, had, hearing
After the district said action temporary “that writ and ordered dissolved defendants herein have be, hereby is, dismissed and that pleadings.” on the judgment appealed. plaintiff judgment
From such order and The land it stands state contends conveyance property, subject are state therefore to sale and provided the Constitution and statutes enacted accordance therewith. defendants the lands contend that such
which it stands property. are not state
The Montana was Board owes its existence to and Montana, legislature. created acting through State its Its members appointive were either officers the State of purchasing agent, appointees such as state governor of Montana. employment supervisors, board’s caretakers employees, subject approval and other of the board of examiners of the State of Montana. R. C. M. sec. 82-201. All approved board’s had contracts to be the state examiners, board of and all proceedings of its were subject examination the state examiner required report who was the result of such examina *3 tion to the board of examiners the State of Montana. R. M. C. 1947, sec. 82-204.
In beginning armory into board was allowed enter money contracts; bonds; acquire, borrow and issue hold and convey personal property; “(e) real and prop To donate such erty State of to the Montana if and when all debts which have by property thereof, been secured income have b3'- (f) paid, been and purchase buildings purchase To sites or to # * buildings sites armory purposes, (g) and construct *. To buildings execute leases of sites and to the State of Montana for * * *. armory purposes, Such leases to State of shall Montana subject to appropriations legislative to be made as sembly, payment for the of rent under such leases. rent charged State Montana shall not excess of the amount necessary bonds property retirement of secured State, expenses thereto, other including leased to the incident operation.” 161, Chapter 1939, See Laws of cost of Montana p. not suf-
When of armories the revenue from the rental Montana armory bonds, the State of ficient to retire board By appropriating: legislature off owing the balance 573, sum of 1945, p. Bill No. Montana 250, House Laws of 229, fund; and House general from the $40,000 “out 651, the amount of 1953, pp. Laws of Montana any money treasury”. state provided demise and quiet Bill No. 229 House also following orderly by the words: armory interment board reasonably “As as can after the retirement of soon be done described, the above Mon- bonds and the transfer of * * * its'affairs. armory pay tana shall and clear board its bills *' # closing *, the Montana “Upon the final its affairs complete report governor board shall make a Montana Montana, whereupon said * * *.” cease to exist Montana, twenty-ninth legislative assembly Laws of “Whereas, 1945, p. that: Montana said fifty thou- said Montana board has issued four hundred ($450,000.00) proceeds sand of which have dollars bonds the armories, building acquiring sites, been used aforesaid, other of which bond issue two hundred ($284,000.00) remains eighty-f'our unpaid, dollars now thousand aforesaid, provisions when “Whereas, under the of the Acts Montana board have all bonded and other debts armories, buildings are sites, required paid, been all such * * conveyed *. to the State to be donated and appropriation ninety-five 1. An Section “Now Therefore. hereby ($95,000.00) is made out of un- dollars thousand general expended monies in the fund of the State board, years state fiscal for each of the *4 1946-1947, appropriation a for (being total of 1945-1946 and $190,000.00) buildings, as rental said biennium by leased the state said sites, property heretofore and other board primary 3, under leases provided by Chapter as Section 123 Session Laws of Montana of 1941.
“Section 2. appropriation expressed This is made money condition that all appropriated by board this act shall applied payment any outstanding be in Montana * * *” armory board bonds.
The express understanding board was created with the that it direction would “donate such [armories] of Montana if when all debts which been have secured thereof, the income have been paid.” Chapter See 161, 1939, p. Laws Montana 386. through legislature, appropriated its general fund of the State “upon expressed money appropriated condition all the * * # applied payment any outstanding bonds.” appropriation This was made with the armories, understanding sites, buildings “all such are required conveyed to be donated the State of Montana ** 1945, p. See House Bill No. Laws of Montana 573. authority, convey under which the board seeks to armory, and the land it is situated which known is as enacted thirty-third legislature, session of the Montana Laws of Montana 1953, pp. 651, 652. here,
Such thereof is pertinent is as follows: An Appropriate Money “House 229. Act Armory Retirement of Montana Providing Bonds: Armory of Montana Retirement Board Bonds and the Dis- position Armory Assets Board, of Montana * ** Abolishment Said Montana Board. Assembly Legislative
“Now Therefore be Enacted of the State of Montana: hereby appropriated
“Section That there out of money not treasury appropriated the state otherwise sum forty ($40,000.00) thousand dollars to the Montana
349 outstanding the retiring all of board, purpose the sole of bonded said board. indebtedness of of said bonds retirement Immediately 2.
“Section chairman, duly by its execute, the Montana shall board conveyances deeds of clerk, good attested its and sufficient title of follows : “ located Montana, premises (a) city Poplar, To of all the armory,’ together city ‘Poplar that with known as the belonging, thereto tenements, appurtenances hereditaments and of unto State providing however, that reserve said deed guard purposes free right it national Montana use [the * ** charge] of by said Montana, realty owned “(b) all other To the State of building,’ every including ‘state arsenal description, board of Montana, armory,’ Bozeman, Helena, Montana, and the ‘Bozeman hereditaments, appurten- together tenements, with all exception.” belonging, ances thereto without reservation it, of direct the only Not face did House * * mory’ title * [to] ” * * board execute total * To “immediately upon the retirement disregard * * city * good and sufficient deeds the views * ° [*] previous legislatures, [of) of of conveyances ‘Poplar bonds ar- “out of appropriated but bill further sum such treasury” “for any money in of the State of the state outstanding in- retiring bonded purpose all of the sole debtedness of said board.” Montana no that the
There can be doubt but Mon government of the State of parcel of the is it for and tana; acquiring land and armories acted and that agency State of Montana. an arm and took title thereto into brought Montana such The State of advantage gifts money offered undoubtedly to take world See Geboski v. progress administration. the federal works (2d) 103 Armory Board, 110 Mont. Pac. Montana supervised controlled The State of entire life. board’s
It was the money off the bonded Montana’s indebtedness such armory board, constituted the which debt money necessary buy armories; sites for and build and it was the State of Montana to an end the brought armory board, so, Arab, existence of such it fold like the could silently its tent and away. steal Poplar armory is the
and the land land. which it stands is Montana state permits insofar as board to *6 convey Poplar armory, the it land which is situated, and, therefore, to the is of unconstitutional inoperative and of no force or effect.
It unconstitutional it XVII, is violates section because Article 1, Constitution, of the Montana in provides: which
“All been, may the that or lands of state have that hereafter granted congress, be state acquired all lands gift grant any person or devise, or or shall corporation, be from public people, and shall be held trust the state, lands disposed respective pur- for the provided, to be hereafter poses they granted, may for which have been or be donated or devised; therein, nor estate or interest land, such none disposed except pursuance general ever be laws providing disposition, for such nor unless the market value full disposed of, of the estate interest be or ascertained as may provided by law, manner safely paid secured to '* * Emphasis state; supplied. County proper So that the records shall a Roosevelt show chain title, convey paper board should title of and land to the State of Montana. disposition of such land lies within au- thority consisting of land commissioners governor, superintendent public instruction, secretary attorney general, general who “have and state and exercise authority, care, management control over the direction and ” 1947, lands. M. disposition R. C. sec. all state 81-103. judgment of the reasons stated the the district
For court is
351 with directions court remanded to such reversed and the cause in this forth set with the views judgment to enter in accordance opinion. BOT- MR. JUSTICE ADAIR and
MR. JUSTICE CHIEF TOMLY concur. (dissenting).
MR. JUSTICE ANGSTMAN: that notion majority opinion the erroneous is based it upon which land Poplar building at have been so, it would property. stands If that were is state did, when it that unnecessary legislature provide, as should property property the debt secured is donee of can be the be donated to the State of Montana. No one already held property already which he We have owns. board donates belong does not the state until the Board, state, Geboski Montana debt free. v. (2d) 487, Mont. 103 Pac. original
It is plan true that was to have 82-207; M. R. sec. donated to the State of C. Chapter 1939; 161, Laws of House Laws buildings p. 573, is and this what was done as other provision prohibits in the state. I know of no constitutional state becomes legislature changing plans before the *7 Poplar property, the as in the case of the the owner of it did armory. armory Poplar
The record reveals that the cost of the paid by be the Federal $72,000, about a of which was to by paid City Poplar the of Government and the balance to $2,472.50 period by payment of rental for a of the annual as adjutant twenty years, which was received from the $600 of City department rental and credited to the general’s as by $1,872.50 paid directly the Poplar balance of to be the Poplar. City specifically: “That said rental is mathe- provided lease repay the Montana and estimated to
matically calculated twenty years the actual cost of Armory period in a Board armory construction of the leased herein administration expense the Armory of Montana pertaining to and con- together nected therewith percent per four with interest annum day first July, the rental in sum The annual of $600.00 be paid by military the State Montana for the use armory of said first in determining has been deducted rental of the lessee herein. The estimated without interest cost of the Montana Armory armory upon Board of said which calcu- lations $28,800.00. herein are made is That in event that the costs of construction pertaining administration upon completion by thereof as certified the Chairman of Armory Board is more less or_ than the estimated cost by thereof as certified to the Chairman the Montana Board is more or than less the estimated cost thereof as set out herein, by in such event rental paid to be the lessee herein shall be increased or decreased in proportion upon direct basis mathematical calculations described herein.” agreed lessee likewise repairs, to make all alterations and installations. fallacy
It hold, majority opinion, is a as does the that the money paid Montana’s off the bonded indebtedness far so indebtedness was enhanced Poplar armory. cost of City 1953, p. 651, recites that Laws of $25,693.35 board’s Poplar reduction of paid toward donated much the Federal Government indebtedness. Just how record does not reveal. The several project the legislature for all the appropriations made were impossible therefore projects and it is record combined paid Poplar much the state before us to determine how fully it seems to have been whatever amount but legislature No. Bill because the saw recognized House Poplar Montana the use fit to the State of free to reserve years period a five and to have use of there- armory may agreed such terms and conditions after on Poplar. adjutant general *8 the State belonged to never Since Mon- than the Poplar more City and since the by the board indebtedness incurred discharging tana my opinion, not, in legislature did acquiring property, deeding provision in any constitutional violate right in enter- Poplar. I think the district court judg- and that the judgment pleadings for defendants ing affirmed. ment should be ANDERSON:
MR. JUSTICE MR. JUSTICE opinion of foregoing dissenting I in the concur ANGSTMAN. SAXTORPH, ex rel. GERTRUDE MONTANA
STATE OF COUNTY, et COURT, FERGUS DISTRICT al., Relator, v. Respondents.
No. 9432. 19, 1954. October 15, 1954. Decided Submitted June (2d) 209. 275 Pac.