Ford v. Mitchell
| Decision Date | 06 October 1936 |
| Docket Number | 7625. |
| Citation | 61 P.2d 815,103 Mont. 99 |
| Parties | FORD v. MITCHELL, Secretary of State, et al. |
| Court | Montana Supreme Court |
Original proceeding for injunction by Mary L. Ford against Sam W Mitchell, as Secretary of State, wherein defendant filed a demurrer, and Eugene Wenzler intervened as a defendant.
Demurrer overruled, and judgment entered for plaintiff.
S. C Ford and Sam D. Goza, Jr., both of Helena, for appellant.
C. A Spaulding, of Helena, for respondent.
This original proceeding was instituted by the plaintiff to restrain permanently the defendant secretary of state from certifying to the several county clerks and recorders proposed Initiative Measure No. 38 as a bill to be submitted to the electorate. The defendant has demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.
It appears from the complaint that plaintiff is a resident of the state, a taxpayer and a qualified elector who is entitled to vote at all elections. The official capacity of the defendant is made to appear by appropriate allegations. It is alleged that at the general election last preceding the filing of the proposed petition or petitions for the initiative of the measure in question, the whole number of votes cast for Governor was 216,381, and 8 per cent. of this number is 17,311, being the required number of signatures as provided by the Constitution and Statutes in order to submit an initiative petition to the voters at the general election to be held on November 3d next; that section 100, Revised Codes, provides that every sheet for petitioner's signature "shall be attached to a full and correct copy of the title and text of the measure so proposed by initiative petition."
It is then alleged that an initiative petition was filed within time with the secretary of state for the purpose of submitting to the electors at the next general election a proposed initiative measure designated as the "State Liquor Control Act of Montana," containing the names of 1,209 legal voters, to every sheet of which was attached a copy of the text and title of the measure proposed, a copy of which was annexed to the complaint marked Exhibit A; that subsequent to the filing of this petition another petition was filed within time with the defendant secretary of state containing the same short title, appended to which were the signatures of 16,331 legal voters of the state, and attached to each sheet of this petition for the signatures of petitioners was a copy of the text and title of the measure so proposed by the initiative petition. A copy of this bill is attached to the complaint marked Exhibit B. We shall, for convenience, hereafter refer to these two measures as Exhibits A and B, respectively.
Plaintiff further alleges that, treating these two exhibits as separate petitions, neither has the required number of signatures for the submission of the measures to the electorate at the coming general election, and that, if they be treated as one petition, then the provisions of section 100, supra, are violated. By appropriate allegations it appears that the defendant secretary of state has treated the two petitions as one and certified to the Governor that a sufficient petition has been filed for the submission of Initiative Measure No. 38, the text of which is found in Exhibit B, at the coming election, who has issued his proclamation announcing that such petition has been filed and is being published as required by law, and that the defendant is threatening to and will, unless restrained by an order of this court, certify to the county clerks of the several counties his certified copy of the title and number of the proposed initiative measure to be voted upon at the election. The injury to the plaintiff and other taxpayers which will ensue should the defendant so proceed is appropriately alleged. It is alleged that the proposed ballot title is misleading and deceptive, and also that the act is an appropriation measure.
The allegations of the complaint disclose that attack is made upon the initiative petition on four separate grounds, namely: (1) That it violates the provisions of section 100, Revised Codes, in that every sheet of the petition for petitioners' signatures did not have attached to it a full and correct copy of the title and text of the measure proposed; (2) that the petition is violative of section 1, article 5 of the Constitution, in that it does not include the full text of the measure proposed; (3) that the same constitutional provision is violated in that the proposed law relates to the appropriation of money; and (4) that the proposed form of the ballot is deceptive and misleading. However, the facts stated in each are not at variance, and aside from advancing these various theories, are identical. In view of our conclusion, it will only be necessary to discuss the first contention of the plaintiff.
We have already quoted the pertinent part of section 100. Both Exhibits A and B seek to accomplish the same broad general purpose, namely, the regulation of the sale of intoxicating liquors. Many provisions of these exhibits are identical, but, as we shall point out, there are numerous differences in the text and title of these proposed acts.
The proposed ballot titles are identical and the titles of the acts are the same, except that Exhibit B in its title includes the subject of a "stamp tax." One other discrepancy between the two appears, which is apparently a typographical error and unimportant.
Exhibit A by section 32 provides that nothing in the act shall be construed to in any manner prohibit or prevent the Legislature from enacting a tax upon liquor sold in the state, the only restriction being that any such tax shall be reasonable and not in excess of 10 cents per pint or fraction thereof. Exhibit B by section 32 provides for a tax of 10 cents per pint or fraction thereof on all liquor exceeding 6 per cent. of alcohol by volume sold in the state, except wines containing more than 6 per cent. of alcohol, and less than 21 per cent. by volume, which shall be taxed at the rate of 5 cents per pint or fraction thereof. This section further provides for the supplying of stamps to evidence the payment of the tax which shall be affixed to the container of the liquor before it is sold to licensed retailers, and all licensed wholesalers are required to keep such books and records as the board may require. Section 28 provides for the disposition of funds accruing under the provisions of the act and mentions taxes. Exhibit A is silent as to these particular provisions mentioned supra.
Section 2 of Exhibit B, in enumerating the various parts of the act, mentions that part 2 relates, among other things, to the licensing and regulation of wholesale vendors. The corresponding section of Exhibit A is identical aside from this provision. Section 5 of Exhibit B relates to the employment and duties of a license clerk to be employed by the board created by the act, wherein it is made the duty of this appointee to attend to the issuance of licenses to wholesale licensees. Section 6 of Exhibit B directs the board to prescribe a uniform license to be issued under the provisions of the act to wholesale licensees. The corresponding section of Exhibit A makes no mention of wholesale vendors. The only mention of wholesale vendors in Exhibit A is found in section 8, wherein it is provided that licensed retail vendors must make all purchases from regularly licensed wholesale vendors. Subdivision J of section 7 requires a chemical analysis of all brands of liquor sold in the state to be sent annually in a report of such to all retailers. Section 7 of Exhibit B provides that the reports of chemical analyses shall be posted publicly by licensees in their places of business.
Section 8 of Exhibit A provides that persons who sell or offer for sale liquors or wines containing 4 per centum or more of alcohol by volume must obtain a license. Section 8 of Exhibit B provides that such persons who sell liquor or wines containing 6 per centum or more of alcohol by volume must obtain a license. Section 8 of both acts contains the provisions relative to the amounts of the various forms of licenses. Section 8 in Exhibit A provides that persons selling in package only shall pay a license of $75. No corresponding provision is found in Exhibit B. Wholesalers, by the provisions of Exhibit A, pay a license of $250, whereas under Exhibit B they are required to pay a license of $1,000. Clubs pay a license fee of $50 under Exhibit A, and under Exhibit B the same license as any retailer doing business in the same county. By the provisions of section 15 of Exhibit A persons licensed outside of a city pay double the license charged in the county, whereas under the provisions of the same section in Exhibit B licensees pay double if operating within the area less than ten miles from a city, but otherwise they pay the same as licensees within a city.
Section 11 of Exhibit A provides that no person shall be granted more than one license in any year. Exhibit B provides that no person, firm, association, or corporation shall be granted more than one license in any one year, and if such licensee maintains more than one store in the state, the store having the license must take all orders and make all deliveries of liquor purchased from such licensee, and any additional stores not having a license are prohibited from taking orders or making deliveries or taking orders and transferring the same to the store having the license. Section 12 of Exhibit B, after providing that no licensee is permitted to display the word saloon, bar, or barroom at his place of business contains an additional provision not found...
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State ex rel. O'Connell v. Mitchell
... ... 1370. However, this court has adopted the view that the right ... of withdrawal exists until final action is taken on ... [106 P.2d 181.] ... the petition by the person or body created by law to ... determine the matter submitted by petition. This was squarely ... held in the case of Ford v. Mitchell, 103 Mont. 99, ... 61 P.2d 815. That case followed the rule previously declared ... in State ex rel. Freeze v. Taylor, 90 Mont. 439, 4 ... P.2d 479, which in turn was based upon the case of State ... ex rel. Lang v. Furnish, 48 Mont. 28, 29, 134 P. 297, ... 300. In the last cited ... ...