Martien v. Porter
| Decision Date | 20 October 1923 |
| Docket Number | 5391. |
| Citation | 219 P. 817,68 Mont. 450 |
| Parties | MARTIEN v. PORTER, STATE AUDITOR, ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; Jos. R. Jackson Judge.
Action by C. H. Martien against George H. Porter, State Auditor, and others, for injunction. From an adverse judgment, defendants appeal. Reversed and remanded, with directions.
C. A Spaulding, of Helena, for respondent.
This is an action in equity, instituted by the plaintiff for the purpose of obtaining an injunction to restrain the defendants George P. Porter, as state auditor of the state of Montana and O. H. Junod, as state treasurer, from paying any salaries to the members of the state board of equalization or the employés thereof, on the ground that the amendment to section 15 of article 12 of the state Constitution under which said board was created, is invalid as not having been proposed and submitted to the people of the state by the extraordinary session of the Seventeenth Legislative Assembly, in accordance with section 9 of article 19 of the Constitution.
The only irregularity to which attention is directed and of which complaint is made is that the proposed amendment, together with the ayes and nayes thereon, was not entered in full upon the journal of the Senate. The Senate proceedings will be shown in the later part of this opinion. For present purposes, it is sufficient to state that a bill submitting the proposed amendment to the electors was passed in both House and Senate by a two-thirds vote of the members elected to each house, enrolled, signed by the presiding officer of each house, and approved by the Governor, but the full text thereof was not entered in the Senate Journal.
At the next ensuing general election the secretary of state caused the proposed amendment to be advertised as required by the Constitution, and at the election the same received a majority of the votes cast thereon, which were properly canvassed, the result declared, and thereafter in regular course the Governor proclaimed that the amendment had become a part of the state Constitution.
Pursuant to the provisions of this amendment the Legislative Assembly enacted chapter 3 of the Session Laws of the Eighteenth Legislative Assembly, providing the necessary statutory law to carry out the provisions of the amendment, and under this law the defendants J. W. Walker, O. A. Bergeson, and A. J Violette were appointed as a state board of equalization, thereafter duly qualified, entered upon the discharge of their duties, and have continued so to act down to the present time.
Subsequent to the filing of the complaint the defendants filed their answer, and later on counsel for the respective parties filed a stipulation containing certain extracts from the Senate Journal of the extraordinary session of the Seventeenth Legislative Assembly, which they agreed constitute and are the only references to the amendment under consideration which appear thereon. Thereafter the plaintiff made and filed a motion for judgment in his favor upon the complaint, answer, and stipulation. This motion was heard by the court on September 5, 1923, and was sustained. In accordance with the order of the court sustaining the motion a judgment was entered granting to the plaintiff the relief prayed for; from this judgment the defendants appealed to this court.
Section 9 of article 19 of the Constitution reads as follows:
From the foregoing facts and the provisions of the Constitution above quoted it is apparent that the sole question presented for decision is whether the amendment to section 15 of article 12 is invalid because the same, together with the ayes and nays thereon, was not "entered in full" on the Senate Journal.
We enter upon a consideration of this case, bearing in mind a rule of construction dictated by reason and sanctioned by authority and long usage, that whenever an act of the Legislative Assembly is assailed as unconstitutional, the question presented to the court is not whether it is possible to condemn but whether it is possible to uphold.
In the early case of Brown v. Maryland, 12 Wheat. 419, 6 L.Ed. 678, Chief Justice Marshall declared:
"It has been truly said, that the presumption is in favor of every legislative act, and that the whole burden of proof lies on him who declares its unconstitutionality."
It has been invariably held by this court that the constitutionality of an act of the Legislature will be upheld unless its unconstitutionality appears beyond a reasonable doubt. In re O'Brien, 29 Mont. 530, 75 P. 196, 1 Ann. Cas. 373; Northwestern Mut. Life Ins. Co. v. Lewis and Clark County, 28 Mont. 484, 72 P. 982, 98 Am. St. Rep. 572; State v. Camp Sing, 18 Mont. 128, 44 P. 516, 32 L. R. A. 635, 56 Am. St. Rep. 551; Missouri River Power Co. v. Steele, 32 Mont. 433, 80 P. 1093; Spratt v. Helena Power Transmission Co., 37 Mont. 60, 94 P. 631; State v. McKinney, 29 Mont. 375, 74 P. 1095, 1 Ann. Cas. 579.
The same rules are applied in the construction of the Constitution as in the construction of statutes (Dunn v. City of Great Falls, 13 Mont. 58, 31 P. 1017), and, if possible, effect must be given to every section and clause ( Montana Coal & Coke Co. v. Livingston, 21 Mont. 59, 52 P. 780.
At the outset we are confronted with a contention by the Attorney General that it is not competent for the court to go back of the enrolled bill to ascertain the regularity of the legislative proceedings, save only for the purpose of ascertaining whether the aye and nay vote was entered upon the journals of the respective houses, and in that connection he cites the decisions of this court holding to that principle, the last of which is State ex rel. Woodward v. Moulton, 57 Mont. 414, 189 P. 59, wherein the former decisions of this court on the subject are collected. The rule of these cases would, of course, hold good if this were an ordinary legislative proceeding for the enactment of a law, but such is not the case.
When the Legislative Assembly proposes an amendment to the Constitution it "is not in the exercise of its legislative power or any sovereignty of the people that has been intrusted to it, but is merely acting under a limited power conferred upon it by the people" to make such a proposal. Jameson on Constitutional Conventions (2d Ed.) c. 8; Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1, Ann. Cas. 1915C, 200; Livermore v. Waite, 102 Cal. 113, 36 P. 424, 25 L. R. A. 312.
The reason of the rule which forbids the court to go back of an enrolled bill to inspect the journals to ascertain whether the Legislature, in passing a law, observed the constitutional requirements, is that, by the terms of section 1 of article 4 of the Constitution, the government of the state is divided into three distinct departments, legislative, executive, and judicial, neither of which is permitted to exercise any power properly belonging to the other, except when expressly directed or permitted so to do. Each of these three branches is supreme in its own domain, and in the exercise of the duties imposed upon it the other branches are not permitted to interfere.
All of the cases cited by the Attorney General have to do with the enactment of a bill or statute under the power vested in the Legislature by article 5 of the Constitution. They have no reference to acts of the Legislature in proposing amendments to the Constitution under section 9 of article 19. The Constitution does not prescribe the method which shall be pursued in submitting such a proposal. It may be by bill or by joint resolution, but in either event it is a mere proposal, and does not become effective until ratified by a vote of a majority of the electors at the polls. Being a mere proposal made by the Legislature in the exercise of its delegated power, and not in the exercise of its inherent power to legislate, it is not an invasion of the legislative department for the court to look to the journal entries in reference to such proposal to determine the regularity of the proceedings. For this reason the rule contended for by the Attorney General has no application here.
The above-mentioned section 9 of article 19 of the Constitution first came before this court for construction in the year 1894, in the case of State ex rel. Woods v. Tooker County Clerk, 15 Mont. 8, 37 P. 840, 25 L. R. A. 560, which involved a proposed amendment to section 4 of article 16 of the Constitution providing for the election of county commissioners at the general election of 1894. The specific objection made to the constitutional amendment in that case was that the secretary...
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