Pampel v. State Board of Examiners

MR. CHIEF JUSTICE JOHNSON delivered the opinion of' the court. Plaintiff Pampel, superintendent of the Montana State Hospital, seeks a declaratory judgment against the members of the State Board of Examiners and against the State Auditor finding the Board justified and warranted in declaring the existence of “an unforeseen and unanticipated emergency”' *382 with respect to the financial needs of the Montana State Hospital and in authorizing expenditures in excess of present legislative appropriations therefor within the meanin'g of Chapter 40 of the Laws of 1937, and determining “the full rights, powers and duties” of the state board under said chapter, and the duty of the State Auditor with respect to the issuance of warrants if an emergency be so declared. For obvious reasons this court has accepted original jurisdiction. The defendants have appeared by answer, but there are no issues of fact. The facts are that during the recent regular legislative session of the Twenty-eighth Assembly, plaintiff having found that the appropriation made by the Twenty-Seventh Legislative Assembly for the said purposes for the present fiscal year ending June 30, 1943, was almost exhausted, and that $101,000 of additional funds would be reasonably necessary for the balance of that period to provide for the care, food and maintenance of the inmates of Montana State Hospital with extreme economy and curtailment of operating expenses, requested a deficiency appropriation in that amount; that a special joint committee of the Senate and House, of Representatives, after an inspection of the Montana State Hospital, made a detailed report which demonstrated clearly the need that the appropriations for the institution be increased; that the appropriation committee of the House approved an additional appropriation of $88,000 for the purpose, which was thereafter reduced to $35,000 in the appropriation bill as finally passed and approved; that the said sum has been practically exhausted, and that an emergency exists at the said institution and a like emergency at the Montana State Training School at Boulder; that plaintiff has requested the State Board of Examiners to authorize expenditure of the necessary additional funds in excess •of the legislative appropriations under authority of Chapter 40, Session Laws of 1937, but that the State Board has, by resolution, declared its lack of authority, but “would declare an emergency in this matter, were it not for the decision of the Supreme Court in the case of State ex rel. Dean v. Brandjord, *383 108 Mont. 447 [92 Pac. 2d 273],” in which it was held on the facts considered in said case that when the Legislature had refused to act to the full extent requested in making an appropriation of money for the support of a State Department, such situation could not form the basis of the unforeseen and unanticipated emergency mentioned in Chapter 40, Laws of 1937; that unless additional funds are provided, it will be necessary to discharge the inmates and close the institution. The defendants contend that section 2 of Chapter 40, upon which plaintiff relies for the remedy sought, is inapplicable to the present situation; that it would furnish no adequate relief; •and that it is unconstitutional. They contend (1) that it is inapplicable because the emergency was not “unforeseen and unanticipated,” having been foreseen and anticipated by the plaintiff and the State Board of Examiners and fully disclosed to the legislature which, in spite of that fact, refused to make a sufficient appropriation; (2) that it would not furnish adequate relief because it would merely authorize plaintiff and the State Board of Examiners to seek the furnishing of supplies and service on unsecured credit, to be paid for only if a subsequent legislative assembly should see fit to make the necessary deficiency appropriation therefor. They contend further (3) that the Act in question is unconstitutional if, as plaintiff contends, it seeks to empower the Board of Examiners, an agency of the executive branch of government, to authorize expenditures in violation of section 34 of Article V and of section 10 of Article XII of the State Constitution, which provide that no money shall be paid out of the treasury except by appropriation made-by law, and on state warrant, and further in violation of section 12 of Article XII which provides that “no appropriation shall be made nor any expenditures authorized by the legislative assembly whereby the expenditures of the state during any fiscal year shall exceed the total tax then provided for by law, and applicable to such appropriation or expenditure, unless the legislative assembly making such appropriation shall provide for levying a sufficient tax, not exceeding the rate allowed *384 in section nine (9) of this Article, to pay such appropriations or expenditures within such fiscal year * * Section 2 of Chapter 40 is as follows: “If it shall at any time appear to the state board of examiners that due to an unanticipated increase in the number of inmates or patients of any penal, custodial or charitable institution, or that due to any unforeseen and unanticipated emergency in the case of such institutions, * * * the amount appropriated for the mainteance and operation of any state institution, * * * with all other income of the institution, if any, will be insufficient for such purposes during the year for which the appropriation was made, on written application to such state board of examiners* setting forth in detail the reasons therefor, said board of examiners, by an order made and entered at length, with such application, in its minutes, may authorize an expenditure to be made •during such year for such purposes in such an amount in excess of such income for said year as said board of examiners may •deem necessary and required, and the board, managerial staff •or other authority in charge of any state institution, * * * may expend such amount, and no more, for such purposes during such year; provided that any increase in expenditure so authorized for any penal, custodial or charitable institution due to increase in number of inmates or patients, shall not exceed the cost per inmate day as set forth in the last preceding legislative budget for each such institution. Said state board of ■examiners shall report to the next legislative assembly the amount expended or indebtedness or liability incurred under such authority granted by it and request that a deficiency appropriation bill be passed to take care of and pay the same. ’ ’ Since the final sentence of the section clearly indicates that no payment of any expenditure so authorized by the Board of Examiners is to be made unless pursuant to subsequent deficiency appropriation therefor, it would seem that by its enactment the legislature was not attempting to delegate its authority over appropriations to the Board of Examiners, and that by .acting under it the Board would not be exercising any author *385 ity over appropriations. However the body of the section seeks to delegate to the Board the power to “authorize an expenditure” in “any unforeseen and unanticipated emergency,” which even the legislature is, by section 12 of Article XII, supra, precluded from doing in excess of the then authorized tax income of the state, unless at the same time it provides for a sufficient tax. Counsel speak of section 2 of Chapter 40 as an emergency law, empowering the Board of Examiners in such emergency to authorize expenditures in excess of the legislative appropriations, and that is in effect what the section seeks to do. However it is not an Act for that purpose, but is merely an exception or proviso to Chapter 40 which is a prohibitory Act, the title of which is as follows: “An Act to prohibit any * * * state institution * * * of the State of Montana having charge or regulation or supervision of the disbursement or expenditure of the income provided for any such state institution, * * * maintained in whole or in part by the state, from expending or contracting to expend, or ordering or requiring any inferior authority to expend, any amount in excess of the annual income from legislative appropriation and other authorized sources, except as in this Act permitted, and granting the board of examiners authority to decrease expenditures under appropriations within the limitations of this Act, and providing penalties for violation of this Act and for the removal from office or employment of persons violating this Act. ’ ’ The only reference in the title to the matter in section 2 is the clause “Except as in this Act permitted”; that section only provides an exception to the prohibitions expressed and the penalties imposed by the bulk of the Act against the exceeding of appropriations by the agencies named. The point is not that in such emergencies the appropriation powers have been delegated to executive officers of the state, but that those officers might then authorize the necessary expenditure in excess of the appropriations without incurring the penalties otherwise imposed by Chapter 40. In short, Chapter 40 is not an emergency *386 expenditures Aet. It is an Act forbidding expenditures of funds in excess of appropriations, with an exception for certain emergencies. Thus the emergency provision is the tail and not the dog. Whether section 2 of Chapter 40 is applicable to the present situation depends entirely upon the question whether the insufficiency of the appropriation for the purpose is due to “any unforeseen and unanticipated emergency” within its meaning. There is no room for argument about the meaning of the words “unforeseen” and “unanticipated.” Since they are obviously not used in any technical sense they must be construed according to the context and the approved usage of the language. (Sec. 15, Rev. Codes.) Everyone knows that “unforeseen” means not foreseen, and that “unanticipated” means not anticipated or expected. By the very nature of the general rule declared by Chapter 40, and of the exception from the rule provided by section 2 of that chapter, it is apparent that the “unforeseen and unanticipated emergency” must be one which was unforeseen and unanticipated by the legislative power, and for which it was therefore unable to provide by an appropriation. (State ex rel. Dean v. Brandjord, 108 Mont. 447, 92 Pac. (2d) 273.) It is immaterial, therefore, that the emergency may have arisen since the original appropriation for the biennium by the 1941 legislative assembly. The material point is that the emergency justifying the extra expenditure must have arisen since the legislature had its last opportunity to provide for it by a specific appropriation, which was manifestly at the legislative session of 1943. Nothing is claimed to be known now which was not known and disclosed to the legislature then, and it would be a stultification of the words of the statute to hold that because it was not foreseen when the original appropriation was made in 1941 it is immaterial that it was foreseen in 1943, and that with full knowledge of the facts the legislature nevertheless refused to make the appropriation. *387 It is impossible to hold that the present situation is the result of an emergency unforeseen and unanticipated by the 1943 legislature, for a request was made of it by the proper authorities for the necessary funds to meet this exact situation and the legislature had full opportunity to provide for the need. Furthermore, while the report of the joint investigating committee related mainly to the more permanent situation presented by practically worthless land, obsolete physical plant, insufficient toilet and sanitary facilities for the inmates, and generally inadequate equipment, it pointedly referred also to the immediately serious lack of sufficient doctors, attendants and employees, the insufficient salaries paid most of the staff, and the pitifully inadequate sum of 6.3 cents per meal upon which the inmates were then being maintained to the best of the staff’s ability. Since, therefore, the present situation is not within section 2 of Chapter 40, there is no occasion for considering whether action by the Board of Examiners under that section, if permissible, would have been adequate, or whether the section is constitutional. The plaintiff has not in any event shown facts entitling him to any relief under the Act. It is suggested that some relief should be devised by this court because none can be had otherwise except through a special session of the legislature, which would cost money, and would be contingent upon the legislative will. However, free peoples have determined representative government preferable to government by arbitrary authority, have considered the cost worth paying, and in final analysis have found representative government much less costly in terms of wealth as well as human rights and happiness; and even if it were otherwise the remedy would not lie in the usurpation by the courts of power entrusted by the people to the legislature. Judgment is therefore ordered against plaintiff and in favor of the defendants. Associate Justices Erickson, Anderson and Morris concur.