Duck Inn, Inc. v. Montana State University-Northern

97-236




                                                                                No. 97-236

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                  1997



                                                                  THE DUCK INN, INC.,

                                                               Plaintiff and Appellant,

                                                                                         v.

                                                              MONTANA STATE UNIVERSITY-NORTHERN,

                                                                      Defendant and Respondent.




                    APPEAL FROM:                   District Court of the Twelfth Judicial District,
                                                            In and for the County of Hill,
                                                      The Honorable John Warner, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                                  For Appellant:

                                                      Chris R. Young; Young & Brown, Havre, Montana

                                                                                For Respondent:

                                                     LeRoy H. Schramm, Chief Legal Counsel, Montana
                                                           University System, Helena, Montana




                                                                              Submitted on Briefs: October 9, 1997

                                                                              Decided:               December 9, 1997

                                                                               Filed:


                                                         __________________________________________
                                                                       Clerk

                          Justice Karla M. Gray delivered the Opinion of the Court.

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        The Duck Inn, Inc. (Duck Inn) appeals from the judgment entered by the Twelfth
   Judicial District Court, Hill County, on its order granting summary judgment to
                                         Montana
 State University - Northern (Northern) and dismissing the Duck Inn's complaint. We
                                         affirm.
                                   The issues on appeal are:
       1. Did the District Court err in concluding that Northern's conduct in renting
                                            its
  facilities to private persons and organizations is authorized by õ 20-25-302, MCA
                                          (1993)?
       2. Did the District Court err in concluding that õ 20-25-302, MCA (1993), does
                          not violate the Montana Constitution?
                                                      BACKGROUND
        The Duck Inn is a Montana corporation with its principal place of business in
Havre, Montana. As part of its business, the Duck Inn provides facilities, food and
     beverages to the general public for the purpose of hosting parties, reunions,
                                       conventions
                                     and receptions.
       Northern is a tax-supported unit of the Montana university system; its buildings
    and property belong to the State of Montana. Northern is funded via taxes and
                                          general
    fund appropriations, student fees and tuition, fees charged to users of campus
                                         services
   and facilities, federal grants, bond proceeds, interest income and private gifts.
       Northern regularly rents its facilities to private persons and organizations for
parties, reunions, conventions and receptions. Its campus food service provider has
                                             the
exclusive right, pursuant to contract, to cater food service for all such gatherings
                                              on
     Northern's campus and, in return, Northern receives 10% of the gross revenues
                                         realized
 from the catering. In addition, Northern receives 100% of the revenues received as
   payment for the rental of campus facilities. Northern applies these revenues to
  supplement the operating funds available for maintenance of the rented facilities
                                           and to
             pay off the bond issues to which the revenues have been pledged.
       In 1994, the Duck Inn filed a complaint for declaratory judgment and application
 for preliminary injunction against Northern. The complaint alleged that Northern's
  leasing of its facilities to private persons and organizations for various events
                                           placed
   Northern in direct competition with the Duck Inn's business and violated Montana
   statutes. It also alleged that, if Northern's leasing activities did not exceed
                                        statutory
 authority, the applicable statute violated the Montana Constitution. The Duck Inn
                                           sought
a declaratory judgment prohibiting Northern's leasing activities and an order to show
      cause why its application for a preliminary injunction should not be granted.
           After a hearing, the District Court denied the Duck Inn's request for a
                                       preliminary
    injunction. It determined that, while the Duck Inn had shown that Northern did
                                          compete

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with the Duck Inn's business, it was not clear that such competition was prohibited
                                                by
                            statute or the Montana Constitution.
        Northern subsequently moved to dismiss the complaint on the basis that it failed
   to state a claim upon which relief could be granted. After full briefing by the
                                        parties, the
District Court concluded that Northern's practice of renting its facilities did not
                                            violate
  either õ 20-25-302, MCA (1993), or the Montana Constitution, but observed that the
  record indicated that Northern might not have followed its own policies regarding
                                            the use
      of facilities. On that basis, the District Court denied Northern's motion to
                                         dismiss and
   granted the Duck Inn leave to amend the complaint to seek damages and injunctive
                                              relief
based on alleged violations of Northern's policies. Thereafter, the Duck Inn filed a
  notice of appeal of the District Court's order and, on November 7, 1995, this Court
  dismissed the appeal without prejudice because no final judgment had been entered.
           The Duck Inn subsequently filed an amended complaint generally alleging, in
  addition to the bases asserted in the original complaint, that Northern's leasing
                                          activities
violated its own policies. The parties filed cross motions for summary judgment and
                                                the
       District Court ultimately granted Northern's motion relating to the alleged
                                        violation of
  policies on the basis that no genuine issue of material fact existed as to whether
                                            Northern
violated its current policies relating to the rental of campus facilities. The court
 incorporated its earlier decision that Northern's leasing practices did not violate
                                              either
  Montana statute or the Montana Constitution into its order on summary judgment and
ordered the dismissal of the Duck Inn's complaint. Judgment was entered accordingly
                                 and the Duck Inn appeals.
                                                    STANDARD OF REVIEW
          We observe at the outset that the Duck Inn does not appeal from the District
Court's determination that no genuine issue of material fact existed with regard to
    whether Northern's rental practices violated its own policies. The Duck Inn's
                                           appeal is
     limited to that portion of the District Court's order on summary judgment which
  incorporated its earlier legal conclusions that Northern's leasing activities did
                                         not violate
 õ 20-25-302, MCA (1993), or the Montana Constitution. Under such a circumstance, we
  need only determine whether the district court correctly interpreted the law. See
                                                Ash
  Grove Cement Co. v. Jefferson County (Mont. 1997), 943 P.2d 85, 89, 54 St.Rep. 756,
                                  759 (citation omitted).
                                                         DISCUSSION
             1. Did the District Court err in concluding that Northern's conduct in
                                         renting its
   facilities to private persons and organizations is authorized by õ 20-25-302, MCA
                                             (1993)?
         Section 20-25-302, MCA (1993), provides, in pertinent part, that the regents of

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                                                the Montana university system may
                 (5) rent                  the facilities to other public or private persons, firms, and
             corporations                   for such uses, at such times, for such periods, and at such
          rates as in the                   regents' judgment will be consistent with the full use thereof
             for academic                   purposes and will add to the revenues available for capital
                                                       costs and debt service[.]

  The only portion of the statute which is at issue here is the meaning of the phrase
  "consistent with." "In interpreting a statute, we look first to the plain meaning
                                           of the
   words it contains." Werre v. David (1996), 275 Mont. 376, 385, 913 P.2d 625, 631
 (citation omitted). Moreover, in the search for plain meaning, we give words their
                                            usual
           and ordinary meaning. Werre, 913 P.2d at 631 (citations omitted).
             Merriam Webster's Collegiate Dictionary 247 (10th ed. 1993) defines
   consistent as "free from variation or contradiction;" "compatible." The American
    Heritage Dictionary 402 (3rd ed. 1992), also defines consistent as "compatible."
 Applying this definition to õ 20-25-302(5), MCA (1993), we conclude that the statute
expressly authorizes Northern to rent its facilities to any person or entity for any
                                          use, at
   any time, which is compatible with--and does not contradict--the full use of the
                                       facilities
    for academic purposes and which also adds to the revenues available for capital
                                        costs and
  debt service. There is no showing on the record before us that Northern's rentals
                                             are
     incompatible with, or contradict, the full use of the facilities for academic
                                        purposes.
Furthermore, it is agreed that Northern receives revenues from the rentals which add
                                              to
                  revenues available for capital costs or debt service.
       The Duck Inn contends that the phrase "consistent with" means "directly related
  to" Northern's academic purposes. It provides no authority for such a definition,
however. An appellant bears the burden of establishing error by the trial court and
                                            Rule
  23, M.R.App.P., requires an appellant to cite to authority for the position being
                                         advanced
   on appeal. The Duck Inn having failed to do so, it cannot establish error with
                                        regard to
the District Court's definition of "consistent" as, among other things, "compatible,
                                             not
contradictory" and the court's corresponding conclusion that õ 20-25-302, MCA (1993),
                        authorizes Northern's leasing activities.
      The Duck Inn also asserts, although obliquely, that it is unwise and unfair for
                                            tax-
      supported institutions such as Northern to rent their facilities in direct
                                    competition with
 private sector businesses. Many people would agree with the Duck Inn's assertion.
                                              As
   a general rule, however, the public policy of the State of Montana is set by the
                                          Montana
Legislature through its enactment of statutes, and this Court may not concern itself

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                                            with
the wisdom of such statutes. See, e.g., Gryczan v. State (Mont. 1997), 942 P.2d 112,
 125, 54 St.Rep. 699, 708; Estate of Strever v. Cline (1996), 278 Mont. 165, 180, 924
   P.2d 666, 675; Young v. Board of Trustees, Etc. (1931), 90 Mont. 576, 584, 4 P.2d
                                         725, 728.
         We also observe that the Duck Inn effectively concedes that õ 20-25-302, MCA
  (1993), authorizes Northern's rentals by arguing that the statute authorizes such
                                          rentals
"only if its administrative rules allowing such conduct are strictly confined within
                                             the
 applicable legislative guidelines, and only if its conduct strictly adheres to both
                                        the letter
     and spirit of the policies and procedures adopted by the Board of Regents and
                                        Northern."
    While it cannot be gainsaid that administrative regulations or, as here, campus
                                          policies
 cannot authorize conduct not within the purview of the statute (see, e.g., Bick v.
                                           State,
Dept. of Justice (1986), 224 Mont. 455, 457, 730 P.2d 418, 420), the Duck Inn did not
  challenge the policies under which Northern rents its facilities on the basis that
                                          they are
   too expansive or, indeed, at all. It merely contended in the District Court that
                                          Northern
   was violating its own policies. The District Court determined otherwise and, as
                                            noted
                 above, the Duck Inn has not appealed that determination.
       Finally, the Duck Inn argues that several of the cases relied on by Northern in
                                             the
District Court are factually distinguishable from the present case and do not support
 Northern's position here. We agree that the cases are, to a large extent, factually
 distinguishable in that they address the leasing out of different public facilities
                                       by different
    governmental units under different statutes than that at issue here. See, e.g.,
                                         Colwell v.
   City of Great Falls (1945), 117 Mont. 126, 157 P.2d 1013, overruled by Prezeau v.
                                            City
     of Whitefish (1982), 198 Mont. 416, 646 P.2d 1186; Young, 4 P.2d 725. In this
                                           regard,
we need observe only that the cases noted by the Duck Inn were neither necessary to,
                                             nor
 the basis for, the District Court's decision that Northern's leasing activities are
                                         authorized
  by õ 20-25-302, MCA (1993). Likewise, those cases have no relevance to, or bearing
    on, the conclusion we reached above under "plain meaning" principles of statutory
                                       construction.
        We hold that the District Court did not err in concluding that õ 20-25-302, MCA
        (1993), authorizes Northern to rent its facilities to private persons and
                                     organizations so
 long as the rentals are compatible with the full use of the facilities for academic
                                          purposes
           and add to the revenues available for capital costs or debt service.
        2. Did the District Court err in concluding that õ 20-25-302, MCA (1993), does

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                         not violate the Montana Constitution?
      The Duck Inn advances two challenges to the District Court's conclusion that õ
                                            20-
  25-302, MCA (1993), does not violate the Montana Constitution. First, it contends
                                           that
the statute constitutes an unconstitutional delegation of legislative authority to an
     administrative agency. Second, it argues that the leasing of facilities on
                                       Northern's
     campus constitutes a use of tax-supported facilities for a private purpose--
                                    competition with
private enterprise--which infringes on the constitutional requirement that taxes may
                                             be
         levied only for public purposes. We address these arguments in turn.
           Article V, Section 1 of the Montana Constitution provides that "[t]he
                                      legislative
        power is vested in a legislature consisting of a senate and a house of
                                   representatives."
The Duck Inn relies on White v. State (1988), 233 Mont. 81, 759 P.2d 971, and Douglas
v. Judge (1977), 174 Mont. 32, 568 P.2d 530, in arguing that õ 20-25-302, MCA (1993),
 constitutes an unconstitutional delegation of legislative power because it fails to
                                       prescribe
a policy, standard or rule for implementing the powers delegated to an administrative
                                         agency.
       It is true that White and Douglas set forth the general standard against which
    legislative delegations of power are measured in Montana. In Douglas, where a
delegation of power to the Board of Natural Resources and Conservation was at issue,
            we stated that, in delegating powers to an administrative body,
         "the legislature must ordinarily prescribe a policy, standard, or rule for
          their guidance and must not vest them with an arbitrary and uncontrolled
                           discretion with regard thereto. . . ."

  Douglas, 568 P.2d at 533-34 (citations omitted). We reiterated that standard in
                                        White in
the context of a challenge to the delegation of legislative power to the Science and
                 Technology Development Board. White, 759 P.2d at 975.
      Applying the principles set forth in Douglas and White to the present case, it
                                           is
     clear that õ 20-25-302, MCA (1993), is not an unconstitutional delegation of
                                      legislative
 authority to the board of regents. The policy underlying the statute is set forth
                                         in the
statute; that policy is to increase revenues available for the capital costs of, and
                                          debt
    service on, campus facilities. The implicit, but clear, rationale behind the
                                     statute is to
 minimize the tax support necessary to fund units of the Montana university system by
 leasing campus facilities. Likewise, õ 20-25-302, MCA (1993), expressly constrains
                                           the
   leasing of such facilities by mandating that the leasing must be consistent with
                                        full use
 of the facilities for the academic purposes for which they were established. Here,
                                          this

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 constraint on the board of regents is the "standard" or "guide" required by Douglas
                                              for
                         a proper legislative delegation of power.
        The Duck Inn contends, in this regard, that the "regents' discretion" language
contained in õ 20-25-302, MCA (1993), provides insufficient limits on the legislative
 delegation of power. It provides no legal authority for its position, however, and
                                              we
     conclude that the regents' discretion is sufficiently limited by the statutory
                                       requirements
     that the leasing be consistent with the full use of the facilities for academic
                                       purposes and
                    produce revenues for capital costs or debt service.
         Moreover, the regents have authority over the Montana university system which
   is independent of that delegated by the legislature. Article X, Section 9 of the
                                           Montana
  Constitution expressly creates the board of regents as a constitutional entity and
                                         vests the
government and control of the Montana university system therein. Indeed, the regents
     are given "full power, responsibility, and authority to supervise, coordinate,
                                        manage and
control the Montana university system . . . ." Art. X, Sec. 9, Mont. Const. Under a
similar circumstance involving independent authority, the United States Supreme Court
    has held that limitations on legislative delegation are "less stringent in cases
                                         where the
    entity exercising the delegated authority itself possesses independent authority
                                          over the
   subject matter." United States v. Mazurie (1975), 419 U.S. 544, 556-57, 95 S.Ct.
                                             710,
 717, 42 L.Ed.2d 706, 716 (citation omitted). We adopt the Supreme Court's reasoning
  with regard to legislative delegations of power to the board of regents in Montana.
        The Duck Inn's second constitutional argument is that õ 20-25-302, MCA (1993),
    permits the use of tax revenues of the State of Montana for private purposes in
                                         violation
of Article VIII, Section 1 of the Montana Constitution, which provides that "[t]axes
                                            shall
    be levied . . . for public purposes." It relies on Hollow v. State (1986), 222
                                        Mont. 478,
    723 P.2d 227, and cases from other jurisdictions in support of its argument, and
   expressly urges this Court to adopt the rationale and holding set forth in White
                                         Eagle Oil
                  & Refining Co. v. Gunderson (S.D. 1925), 205 N.W. 614.
            We begin with the constitutional provision itself, which necessitates a
     determination of whether the present case directly implicates the use of taxes
                                        levied for
            a public purpose for a private use. We conclude that it does not.
        The Duck Inn does not challenge the levy of any tax--or a statute authorizing
                                             such
a levy--in this proceeding. Moreover, nothing in the record before us suggests that
                                             this
 case involves tax monies levied for the proper public purpose of higher education
                                            being
 expended directly for Northern's leasing activities or the private gatherings held

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                                           pursuant
     thereto. To the contrary, as discussed above, the purpose of õ 20-25-302, MCA
                                            (1993),
   is to relieve or contain, to at least a minimal extent, the tax burden associated
                                             with
 university-level funding requirements. Thus, to the extent Article VIII, Section 1
                                            applies
  here at all, õ 20-25-302, MCA (1993), and Northern's leasing activities thereunder
                                            appear
    to have "public purposes" as that term is used in Article VIII, Section 1 of the
                                            Montana
                                        Constitution.
             In this regard, the Duck Inn's reliance on Hollow is misplaced. There,
                                         legislation
  permitted the Montana Economic Development Board to use coal severance tax revenues
        from the in-state investment fund to satisfy guaranties of private debts or
                                         obligations.
     Hollow, 723 P.2d at 232. We held that the use of tax monies to satisfy private
                                           debts or
      obligations violated the requirement of Article VIII, Section 1 of the Montana
Constitution that tax monies be used for public purposes. Hollow, 723 P.2d at 232.
                                               In
 the present case, no tax monies are being spent to satisfy private debts or for any
                                             other
    private purpose. Tax monies being used as a partial funding source for Northern
 continue to be used for that purpose, and Northern's leasing activities only enhance
  revenues available for capital costs and debt service which might otherwise require
            supplementation by the taxpayers. Thus, Hollow is inapplicable here.
          We turn next to White Eagle Oil, the 1925 South Dakota case on which the Duck
Inn urges us to rely in holding Northern's leasing activities unconstitutional under
                                            Article
 VIII, Section 1 of the Montana Constitution. There, a statute authorized the state
                                            to use
  highway funds obtained from gasoline taxes for the purpose of buying gasoline, oil
                                              and
    lubricants and selling them at retail. As the state began such activities, the
                                        plaintiffs--
 retail gas distributors--brought an action challenging the constitutionality of the
                                           statute
 authorizing use of gas tax funds for the stated purpose. White Eagle Oil, 205 N.W.
                                              at
       615-16. The plaintiffs contended that the statute violated the South Dakota
                                       Constitution's
 provision that taxes could be levied for public purposes only; the state contended
                                           that the
      statute was within its police power and, therefore, that the use of gas taxes
                                          permitted
    therein was a public purpose. White Eagle Oil, 205 N.W. at 618, 620. The South
 Dakota Supreme Court assumed arguendo that the statute was an exercise of the police
 power and, therefore, that the statutorily authorized use of gas taxes was a public
purpose, effectively rejecting the plaintiffs' constitutional argument. It observed,
however, that the law authorizing the levy of the gas tax specified that those taxes

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                                             were
  appropriated for the construction and repair of highways; on that basis, the court
    invalidated the statute under a constitutional provision which prohibited the
                                      diversion of
funds levied for a specific purpose to another purpose. White Eagle Oil, 205 N.W. at
                                             620.
       White Eagle Oil is of no assistance to the Duck Inn. The South Dakota Supreme
  Court rejected the plaintiffs' constitutional argument--which was similar to that
                                        advanced
       by the Duck Inn here under the Montana Constitution--and held the statute
unconstitutional for reasons not at issue in the present case. White Eagle Oil has
                                              no
                                    application here.
      Finally, we briefly address the other authorities from sister jurisdictions on
                                            which
the Duck Inn relies, none of which supports its position in this case. In Wheelon v.
   South Dakota Land Settlement Board (S.D. 1921), 181 N.W. 359, 360-62, a statute
  authorizing the levy of taxes for the purpose of state loans to settlers was held
  constitutional as a "public purpose." Similarly, in Albritton v. City of Winona
                                           (Miss.
 1938), 178 So. 799, 803-810, a depression-era tax to be levied for the purchase of
                                           land,
construction of certain manufacturing enterprises and lease of the enterprises to a
                                         private
  firm or individual fit to operate the enterprises was upheld against a variety of
               constitutional challenges as promoting the public welfare.
      The final case on which the Duck Inn relies is City of Cleveland v. Ruple (Ohio
   1936), 200 N.E. 507. There, the city used public funds for the construction and
 operation of an underground facility to be used for public exhibitions and vehicle
                                          parking
in conjunction with public events at its nearby civic center. City of Cleveland, 200
                                             N.E.
  at 508-509. In its first 1« years of operation, the facility was used for public
                                         purposes
 for a total of three months; it was operated as a parking garage in competition with
    private business the remainder of the time. The receiver for a nearby private
                                          parking
garage sued to enjoin the city from using the facility in the above-described manner
                                              and
   the Ohio Supreme Court held that it could be operated as a garage "so far as in
                                         doing so
 there is involved a public function." City of Cleveland, 200 N.E. at 509, 511. It
                                          is this
                          holding on which the Duck Inn relies.
       The facts in City of Cleveland are clearly distinguishable from those presently
 before us. There, the "public" function of the facility was essentially incidental
                                           to the
private use being made of it, in that the facility was operated for public purposes
                                             only
  17% of the time. Indeed, the Ohio court distinguished City of Cleveland from the
                                             many
cases holding "that public buildings may be temporarily let for a consideration, but

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                                         in our
 judgment the present case does not present a situation of that character." City of
  Cleveland, 200 N.E. at 511. The case before this Court does present a situation
                                          where
 Northern temporarily leases its facilities and the leasing is incidental to use of
                                           the
facilities for the public purposes for which they were funded. The record reflects,
                                           in
fact, that less than 5% of the activities in the Northern facilities at issue are of
                                       a private
     social nature under leases with Northern. Thus, City of Cleveland is readily
                distinguishable on the facts and, therefore, on the law.
      We hold that the District Court did not err in concluding that õ 20-25-302, MCA
   (1993), and Northern's leasing activities thereunder, do not violate the Montana
                                Constitution. Affirmed.

                                                                                                   /S/        KARLA M. GRAY



                                                                            We concur:

                                                               /S/ JAMES C. NELSON
                                                            /S/ WILLIAM E. HUNT, SR.
                                                             /S/ TERRY N. TRIEWEILER
                                                             /S/ W. WILLIAM LEAPHART




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