Davenport v. Elrod

HANEY, J.

This is an original special proceeding instituted by a resident taxpayer for the purpose of having the deféndants prohibited from executing any contracts, issuing any certificates, or performing any acts as members of the state capitol commission. Chapter 163, p. 275, Laws 1905, purports to create a board composed of the Governor, Secretary of State, State Auditor, and Commissioner of School and Public Lands, to be known as the “State *573 Capitol Commission,'' for the purpose of “procuring the erection and completion" of a building to be'used for capítol purposes, on certain described premises in the city of Pierre. It directs and authorizes the commission to procure the erection of a building which shall be adapted and designed for occupancy by the Supreme Court, its judges, and officers, and for the disposition of the Supreme Court and other libraries, records, papers, and property belonging to the state. It empowers the. commission to prepare the capítol grounds for such building, and provides that the commission, in providing plans and specifications for such building, “may also adopt plans and specifications for a complete capítol building, in order that the b'uilding to be erected by said board'may be a symmetrical'part of a completed capítol building.” It also empowers the commission “to emploj-'an architect and to do and perform airy and all acts necessary to enable the said board t'o carry out the provisions of thg act.” Having- organized the commission thus provided for, employed an architect, adopted plans and specifications, and procured the construction of the subbas'emént of -a building designed to be the east wing of a capítol,' the defendants' are intending to execute a contract or contracts for further work upon such wing. Now nearly one year after the organization of the .commission, and after nearly $15,000 have been expended, it is 'asserted that further progress upon this important public improvement should be arrested-for the reason, among others, that the statute purporting to create the commission is void. The importance of the litigation is apparent.

It mar’ be doubtful whether the contention that the entire enactment is invalid should be considered in this proceeding, for the reason that prohibition, which is the counterpart of mandamus, impliedly admits the existence of-the board to which the writ is directed, whereas, if plaintiff’s contention be well founded, no'capítol commission exists. Where it is ■ claimed that a statute purporting to create a tribunal, board, or office is in all respects unconstitutional, and persons are acting pursuant to its provisions, an action in the nature of quo warranto, we apprehénd is the appropriate remedy. However, as the court has jurisdiction to inquire whether the commission is intending to exceed its authority, as the alleged conflict between the statute and Constitution has been exhaustively *574 argued by able counsel, and as it is desirable to have the status of the commission determined, the alleged invalidity of the act will be ■considered at this time.

Thq entire act is claimed to be void (i) because it conflicts with section 26, art. 3, of the state Constitution; and (2) because it is an attempted delegation of legislative power. Section 26 reads as follows : “The Legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property, effects, whether held in trust or otherwise, or levy taxes, or to select a capítol site, or to perform any municipal functions whatever.” Assuming that the Legislature attempted to create a “special commission,” and did not, in effect, merely impose additional duties upon certain state officers, the existence of any conflict between its enactment and the section of the Constitution above quoted manifestly depends upon the meaning of the word “municipal” as therein'employed. “The words and terms of a Constitution, like those of a statute, are to be interpreted and understood in their most natural and obvious meaning, unless the subject indicates or the text suggests that they have been used in a technical sense. The presumption is in favor of the natural and popular meaning in which the words are understood by the people who have adopted them; and where the same words are used in different parts of a Constitution or statute they are presumed to have a uniform meaning throughout the instrument, but this does not necessarily follow.” '8 Cyc. 734. The word “municipal” appears to have been derived from “municipium,” meaning a town, particularly in Italy, which possessed the right of Roman citizenship, but was governed by its own laws, a free town; and it may be thus defined: (1) Of, or pertaining to, a city or corporation having the right of administering local government; as, municipal rights, municipal officers. (2) Of, or pertaining to, a state, kingdom, or nation; as municipal law, municipal offense; in contradistinction to international law or international offense. Web. Internat. Diet. Bouvier says: “Strictly, this word applies only to what belongs to a city.” Want of harmony in decisions relating to what local subdivisions are embraced by the phrase “municipal corporations” may have justified the con- *575 ■elusion in other jurisdictions that the word “municipal” has not “a well-defined and technical meaning.” Agricultural Society v. Houseman, 81 Mich. 609 , 46 N. W. 15 . But this court has said: “We are of the opinion that the framers of our Constitution intended, by the the term 'municipal corporations,’ to use it in its restricted .sense, as applicable only to incorporated cities, towns, or villages ■invested with the power of local legislation.” Dell Rapids v. Irving, 7 S. D. 310, 64 N. W. 149 , 29 L. R. A. 861. It should be observed, however, that all the cases to which our attention has been drawn, including Dell Rapids v. Irving ,supra, involved matters ■pertaining to local subdivisions, such as organized civil townships, •school districts, or public parks, requiring an application of the first definition of the word “municipal” as above given, but in none has 'the second definition been considered. Many matters have been regarded as not municipal because they did not pertain to cities and towns. Nothing has been deemed municipal because it pertained to the state or nation. Undoubtedly the popular understanding of the word is restricted to the affairs of cities and towns. Such being its primary and popular meaning, it should not be given a secondary and unusual meaning in this instance, in the absence of cogent reasons for believing that the latter was understood and intended "by the persons who framed and the people who adopted the Constitution. The use of the word in other parts of the Constitution does not support the plaintiff’s contention; nor does a careful con■sideration of the entire section under discussion. It should be assumed that the language employed in so important an instrument would be selected with deliberation and due discrimination, to the exclusion of all unnecessary repetitions. The section forbids the delegation of power to any special commission “to perform any mxt-•nicipal functions whatever.” If “municipal” was employed in the sense contended for by plaintiff, there was no occasion for inserting the words “or to select a capítol site.” The suggestion that the genesis of these limitations upon the legislative power was hostility to the territorial capítol commission of 1883, and that they are peculiar to the Constitution of this state, merited and received serious consideration until it was ascertained from the unpublished debates of the Sioux Falls convention that they were taken from the Con *576 stitution of Pennsy'lvania, without change, except the addition of the clause, “or to select a capitol site.” It appears that, when the section was reported to the convention in its present form, Honorable Dighton Corson, now a judge of this court, moved that the words relating to a capitol site be stricken out as not germane to the subject-matter with which they were connected. It is true the motion was lost, but no one appears to have questioned the correctness of Mr. Corson’s position with respe.ct to the irrelevancy of the words embraced by his motion. So a majority of the convention may have deemed the clause relating to a capitol site germane, or they may have concluded that the propriety óf it's 'place was immaterial so long- as it remained in the Constitution. One inference is'as reasonable as -the other, and nothing in the proceedings of the convention to which attention has been called justifies the conclusion that the word “municipal” was understood in any other than its ordinary and popular sense.

Another argument against plaintiff’s contention is the fact that these constitutional limitations, except the'one relating to a capitol site ,appear to have been adopted frorii Pennsylvania soon after the Supreme Court of that state decided it was competent for the Legislature to ■ create a board to manage certain trust funds formerly confided to' the city of Philadelphia. 2 Charters and Constitutions, 1570; Philadelphia v. Fox, 64 Pa. 169 . There is, therefore, nothing to justify'' the conclusion that such limitations are applicable to the statute in controversy'. The act is not void as an attempted delegation of legislative power. Though one of the settled maxims in ’ constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority, there is no constitutional reason why legislative functions which are merely ministerial ■ or executive in their character should not be delegated by' that'branch of the government to other departments or to bodies created by it for that purpose. Cooley, Const. Lim. (5th Ed.) 139; 6 Am. & Eng. Ency. Law (2d Ed.) 1029. If any power possessed by' the Legislatfire may be said to be administrative, it is the power to provide itself and other departments of the state government with buildings in which to transact the public business. The making of a building is not the male- *577 ing of a law. Authority to construct a capítol is not authority to prescribe a rule of property or of conduct. The law was made when the Legislature authorized the defendants as a capítol commission to procure the completion of a building to be used for state purposes; and it will have been executed when the commission has performed its duties. That this power may be exercised through and by means of a commission created for that purpose there is no doubt. State v. McGraw, 13 Wash. 311 , 43 Pac. 176 ; Fleckton v. Lamberton, 69 Minn. 187 , 72 N. W. 65 ; People v. Dunn, 80 Cal. 211 , 22 Pac. 140 , 13 Am. St. Rep. 118 ; State v. Budge, 105 N. W. 725 . Though the statute involved in State v. Budge was held to be unconstitutional on the ground that the discretion conferred upon the board was not sufficient!)* restricted, the general rule relating to administrative functions was stated thus: “It cannot be reasonably disputed that the Legislature has power to delegate to a board the work of superintending the erection of public buildings. The Legislature cannot act upon ever)* detail arising in the course of the érection of public buildings, or in preparation therefor. This power must necessarily be delegated to some person or body. These duties are -deemed executive, although they often involve discretion, and some of these could properly have been specifically provided for by legislative enactment. Duties that relate to acceptance of plans and specifications, making contracts, selecting materials, and other similar ones relate to the execution of the law enacted by the Legislature, and are deemed administrative.” Where the function to.be performed is merely administrative, it would seem that the limitations to be imposed upon the commission’s discretion should rest alone with the Legislature, but conceding that unlimited discretion cannot be delegated the directions given in the case at bar are sufficiently definite to meet the objections stated in the North Dakota decision. Here the Legislature fixed the location of the building; designated the purpose it was designed to- serve; limited its cost of $150,000, and in effect directed that it be constructed as speedily as the means provided should permit.

It is next contended that the act creating the commission violates section 21, art. 3, of the state Constitution, which provides *578 that “no law shall embrace more than one subject, which shall be expressed in its title.” This contention is clearly untenable. The act is entitled: “An act relating to the creation of a state capital commission to provide for the erection of a building for capital purposes on block twenty-one, in the Fourth Railway addition to the town, now city of Pierre, in the county of Hughes, state of South Dakota, and'to provide funds’for that purpose.” The subject of the act was the construction of a building for the use of the state at the state capital. •_ The use of funds derived from the sale of lands granted to the state for public buildings at the capital is a matter naturally and reasonably connected with such subject — a natural, reasonable, and appropriate means of accomplishing the purpose of the act — and therefore germane to its title. State v. Morgan, 2 S. D. 32, 48 N. W. 314 ; State v. Becker, 3 S. D. 29, 51 N. W. 1018 ; Stuart v. Kirley, 12 S. D. 245, 81 N. W. 147 .

Section 12 of the enabling act (Am. St. 1901, § 261) granted to this state 50 sections of the unappropriated public lands for the purpose of erecting public buildings at the capital “for legislative, executive, and judicial purposes.” Section 17 granted 50,000 acres “for public buildings at the capital,” and provided that the lands granted by such section shall be held, appropriated, and disposed of exclusively for the purposes therein mentioned, in such manner as the Legislature may provide. Under these two grants about 82,-000 acres have been selected and patented. Though the language is not the same in both sections, it will be assumed that all of these lands were granted for the same purpose and upon the same terms. The grants contain but one condition, namely, that the land shall be held, appropriated, and disposed of exclusively for public buildings at the capital, in such manner as the Legislature may provide. No limitation is imposed upon the Legislature except as to the purpose to which the proceeds shall be applied. So far as the enabling-act is concerned, the Legislature might have disposed of the entire 82,000 acres for any sum it deemed proper to accept. If this be so, it certainty could provide as it did in the act creating the capitol commission for the disposal of a .portion of the lands at not less than their actual value. The commissioner of school and public lands has not been clothed with unlimited discretion. He is re *579 stricted as to amount. All must be appraised at its actual value by a constitutional board consisting of the commissioner of school arid public lauds, the State Auditor, and the county superintendent of schools. None of it may be appraised for less than $10 per acre. None of it may be sold for les's than its appraised value, and the proceeds of the sales cannot be discounted, hypothecated, or pledged in any. manner whatever, but must be exclusively used for the purpose of constructing a public building at the state capital. Laws 1905, p. 275, c. 163, § 2. It does not appear that the commissioner of school and public lands has proceeded, or intends to proceed, otherwise than in strict complience with the directions of the Legislature. In other words, certain of the capítol lands have been and are being disposed of in the manner provided by the Legislature for the purpose for which they were granted to the state. It is 'therefore clear that the Legislature has neither violated the Constitution nor the trust created by Congress with respect to the disposition of such lands. And this conclusion, though 'based upon a different view of the legislative power, is entirely consistent with the principles announced in State v. Budge, supra; the statute in that case being •substantially different from the one, in this with respect to the ■discretion conferred.

The law expressly' provides that all expenses incurred by the •commission shall be paid out of the state capítol building fund, derived from sales and rentals of capital lands, and not out of the general fund; that no moneys shall be expended until the same shall have been thus raised and covered into the capital building fund; that all disbursements on account of the proposed building and expenses incident thereto shall be made pursuant to certificates signed by a majority of the commission; that all claims for labor performed, material furnished, or other expenses shall be audited by the commission; that the State Auditor shall draw his warrant upon the presentation of the commission’s certificate, for the amount allowed, to the order of the person named therein, to be paid by the State Treasurer on demand out of the state capital building fund ; but “'that no certificate shall be issued or debt created at any time in excess of the amount of cash'in such state capítol building fund when such certificate is issued or debt created.” Laws 1903, pp. *580 275, 277, c. 163, §§ 2,3. It is argued that the letting of a contract at this time for the completion of the proposed east wing would violate these terms of the statute, in view of the present condition of the capítol building fund, the balance in-, which is slightly less than $20,000. Though this be true, it does not entitle the plaintiff to a writ of prohibition in this proceeding, because it cannot be presumed that the commission will exceed its authority, and it has not been shown that it contemplates doing so. On the contrary, it appears that the commission has advertised for separate bids on different portions of the required labor and material, reserving the right to contract for such portions as it may deem proper. And, should it enter into an unauthorized contract, neither the plaintiff nor any other taxpayer would suffer any injury, because such unauthorized contract would be null and void. State Const, art. 12, § 3; Van Dusen v. State, 11 S. D. 318, 77 N. W. 201 .

The specifications adopted byr the commission require “the cut stonework of the building” to be of “some good sand or lime stone acceptable” to the commission and architect. It is contended that this requirement conflicts with chapter 85, p. 93, Laws 1903, which provides that “the state board of charities and corrections is hereby empowered, authorized and directed to direct the warden of the stare penitentiaiy to furnish and supply gratuitously, from the labor of convicts confined in said penitentiary a sufficient amount of rock or stone for the construction of a suitable state capitol building. Provided, suitable stone can be procured in the quarries belonging to the state.” The contention is not tenable. Assuming there are quarries belonging to the state from which stone may be procured, the question of determining whether such stone is suitable for any portion of the proposed building rests with the c-apitol commission. It is clearl)'- clothed by the act of 1905 with exclusive power to determine what material shall be used; and the latest expression of .the legislative will must be given effect.

It appears that the specifications adopted by the commission con-' tain stipulations usually inserted in building contracts, to 'the effect that the architect named therein shall determine certain controversies should they arise between the state as represented by the commission, designated the “owner,” and the contractor, and that his *581 determination shall be final. It is contended the commission should be prohibited from inserting these stipulations in the contract or ■contracts it is about to execute. This is clearly untenable. If such stipulations are within the scope of the commission’s authority, it cannot be prohibited from inserting them. If they are not, they will have no effect. All persons who deal with this commission are bound to ascertain the extent of its authority, and cannot enforce any provision of a contract which exceeds such authority.

It follows that the defendants are entitled to have the proceeding dismissed upon the merits and to. recover their taxable disbursements.