Montana Attorney General Opinion 15-70

Opinion No. 70 Gasoline Business-Constitutional Law -AppropIiations-Public Purpose. HELD: A bill appropriating public monies for and authorizing the state to ('onstruct, purchase or lease and oper- ate oil refineries and to engage in the purchase of crude oil and the purchase and sale of gasoline, oils, and luhri· cants, and making an appropriation therefor, is within the constitution and the appropriation is for a Imblic Imr- pose. February 0, 1!)33. You ha\'e asked us whether or not a bill now hefore the legislature, author- izing the state to construot. purchase or lease and operate oil refineries and to engage in the purchase of crude oil and the purchase and sale of gasoline. oils and lubricants, and mnking an ap- propriation therefor will, if passed, he a yalid enactment. As the measure proYides for an ap- propriation, if and when it becomes 11 law, the money must, of necessity, come or haYe come from a tax levy in some form or other. The constitution. however, prohibits the levying of taxes for any but public purposes. (Section 11, Article XII.) Should the measure be passed and approved its Yalidity must, therefore, depend on whether the appropriation so made is for a public purpose. 'What, then, is meant by the term "public purpose"? It ·has, indeed, been defined and expounded by different courts in different manners. In a gen- e1\'11 way it may be said to be such a pm'pose as has for its objective the promotion of the public health, safety, mora I s, gencral welfare. sec\ll'i ty, pros- perit~· and contentment of all the in- hahitants or residents within a given political dh'ision, as, for example, a state, the sovereign powers of which are exercised to promote such public purpose. (Green Y. Frazier, 44 K. D. R!l5, 176 :K. W. 11.) Our Supreme Court in the case of IJC\\;s and Clark County Y. Industrial Accident Board, 52 Mont. n, used this language: "'Vhether a particular purpose is 'public,' as that term is employea (in the constitution), is not always easy of solution. The power of taxation i~ a legislaUre prerogatiYe, and t·lIere· fore the determina tion of the question whether a particul-ar purpose is or is not one which so intimately concel'lls the public as to render taxation. per- missible is for the legislature in the OPIXiOxS OF THE ATTORN);JY GJ<JXERAt iii first instance. (Citing cases.) The general rule of constitutional law that courts will indulge e\'ery reasonable pl'esulllption in favor of legislation is applicable with peculiar force to the case of a legislative dccision upon the purpose for which a tax may be laid." The subject we are considering has from time to time been brought to the a ttention of the courts with ya rying results. In Rta te ex re\. Coleman Y. Kell~', 81 Pac. 450, 6 Ann. Cas. 2!)8, the supl'eme COUl't of Kansas declared a statute like the bill under consideration void as do- la th'e of the constitutional pro\'ision that "the state shall never he a party in calT~'ing on any works of internal i IlIproyemen t." In White l~agle OIl & Refining Co. y. Gunderson, 205 N. ~W. 614, the Supl"l'me Court of South Dakota held a statute identical in some respects with this hill to be innllitl heeanse the constitu- non prohibited the use of taxes for one purpose which had been raised for a 1I0ther nnd different purpose and failed to authorize the state to enter into the lmsiness of buying and selling gasoline. Other COUl·ts ha \'e held that statutes designed to place the state or a politi- ('a I subdivision thereof in the \Jusiness of manufacturing cement, lJuying and selling coal and wood, maintaining nnd opem tillg ice-making plants and estah- lishing liquol' dispensaries were Hllcon- stitutiollal on the ground that they re- quired the expenditure of pulJlic funds in carrying on enterprises of a private nil ture. (See 14 A. L. R. 1157). On the othel' hand, several courts of equII I standing ha \'e ruled that sta tes mllY with propriet.\' engage in enter- pl"ises similar in charactel' to those just mentioned. A fine philosophic discus- sioll fa \'oring this \'icw, lJut too long to I'e qnoted herc, mny be found in Stute ex re\. Chase \'. Clausen, 188 Pac. ['38, H A. L. H. 1133. (See, also, 14 A. L. R. 115G.) It may not lJe out of place to quote IJI"iefly from the opinion in the cnse of ~tate ex reI. PulJlic Senice Commis- ;<ion Y. Brunllon, 8G ;\10nt. 200. wl'he intention of the lel,'islatul'e," said ,the court, "was to prevent the sale of infClior gasoline alld kerosene ill thi~ SUIte. " ., " Society in general b at'fectell; it lllay be t;aid tha t one of these petroleum products is used for one purpose or another by almost every fnmily in the state; the well-nigh univel'sal use of gasoline needs no comment." Finally, in State ex. reI. Lyman v. Rtewart. 58 :\Iont. 1, the court l;secl this highly significant language: "It is not questioned by counsel for the relator that the state may lawful- ly engnge in the business of operating a gm in eleva tor or in other similn r husiness for the benefit of the Imblie, as distinl,'Uished from privnte busi- ness. Indeed, it could not be ques- tioned, for the reason thnt there is no provision of the Constitution which prohibits it. In the absence of such proYision. the legislature is left free to estahlish, and to provide by law for the conduct of, such a business so long as the pIan nclopted by it does not impillge upon some othl'r provi- sion or limitation in the Constitution or some one of the powers delegated hy tile people to the federal govern- ment. Jot is held thnt the state Illay establish such instHutions under its police power. (Citing cnses.) Indeed, it is settled law in this jurisdiction that, sulJject to these limitntions, the legislature possesses all the power of law-Illnking which illheres in any in- dependent sovereignty." (Citing cases.) Continuing, the court said: "Therefore, whether the nuthority of the legislature to est.ablish and pro- vide for the support of any puhlic in- sti,tlltion by the state is to be found in this clause of the Constitution (Section 1 of Article X) or in its gen- eral police power, there can lJe no doubt that it exists." (See, also, State ex. reI. Cryderman \'. 'Vienrich. 54 ;\Iont. 390; [,9 C. J. 11)7-200). After a somewhat thorough study of all the nuthorities anlilable, our con- clusion is that the appropriation is for a public purpose, as the bill in effect lIeclares, and that the hill is within the consti tution.