Sawyer Stores, Inc. v. Mitchell

• Citation: 62 P.2d 342,103 Mont. 148
• Decision Date: 02 November 1936
• Docket Number: 7629.
• Parties: SAWYER STORES, Inc., v. MITCHELL, Secretary of State, et al.
• Court: Montana Supreme Court

62 P.2d 342

103 Mont. 148

SAWYER STORES, Inc., v. MITCHELL, Secretary of State, et al.

No. 7629.

Supreme Court of Montana

November 2, 1936

Original injunction proceeding by Sawyer Stores, Inc., against Sam W Mitchell, as Secretary of State, and A. J. Duncan, as County Clerk and Recorder of Lewis and Clark County, wherein defendants appeared by separate demurrers and answered.

Demurrers overruled and injunction granted.

T. J Davis, of Butte, Lester Loble, of Helena, and Melvin Magnuson, for plaintiff.

E. K Matson, of Helena, Rockwood Brown and Horace Davis, both of Billings, for defendant.

LEIPER District Judge (sitting in place of Chief Justice SANDS, absent on account of illness).

This is an original proceeding commenced in this court in which plaintiff seeks an order permanently restraining the Secretary of State for Montana from certifying to the county clerks of its several counties Initiative Measure No. 39, and likewise restraining the county clerk of Lewis and Clark County from distributing copies thereof.

The action was commenced on the 1st day of October, 1936. Order to show cause thereupon issued requiring the defendants to appear on October 7, 1936, and then show cause why the prayer of the complaint should not be granted. The defendants appeared by separate demurrers and (reserving the questions therein raised) answered. Hearing was had on October 7th and the cause then submitted. On October 8th this court issued an injunction as prayed for in the complaint. Such order preceded the opinion herein for the reason that the Secretary of State is required to certify to the county clerks of the several counties all initiative measures, and October 8th was the last day allowed by law for the performance of that duty.

The demurrers challenge the sufficiency of the complaint in the following particulars: (a) That the complaint does not state a cause of action; (b) that the plaintiff has not the legal capacity to sue; (c) that there is a defect of parties defendant in that it is charged that each county clerk of the several counties should have been made parties defendant; and (d) that this court is without jurisdiction herein.

The complaint alleges and the answer admits that the plaintiff is a corporation organized under the laws of the state of Montana; that it is engaged in the general merchandise business within this state and has operated, now operates, and intends to continue to operate 19 stores within this state; that the defendant Mitchell is the Secretary of State of the state of Montana; that defendant Duncan is the county clerk of Lewis and Clark County; that the plaintiff is duly licensed, under the provisions of chapter 155 of the Session Laws of 1933, to operate such stores; that a true copy of proposed measure No. 39 and the form of ballot by which it is proposed to submit that measure is attached to and made a part of the complaint; that the defendant Secretary of State will, unless restrained by an order of this court, certify such measure to the county clerks of the several counties; and that defendant Duncan will distribute the same to the electors of Lewis and Clark County unless restrained from so doing.

The complaint alleges, among other things, that the ballot by which it is proposed to submit Initiative Measure No. 39 to the electors of this state does not comply with the provision of our statute in a number of particulars, among which are: That the ballot is not descriptive of the measure proposed; that it is false, deceptive, and misleading; that it does not refer to proposed Initiative Measure No. 39; that the title placed upon the ballot fails to disclose the repeal of chapter 155, Session Laws of 1933; that the ballot does not comply with the provisions of our statutes in relation to the type of ballot which the law requires to be submitted to the electors when an initiative measure is submitted, and particularly that it does not comply with the provisions of section 104, R.C.M. 1935. These allegations are denied by the answer. The constitutionality of proposed measure No. 39 is called in question, and the allegations in that regard are denied by the answer. It is alleged that the plaintiff does not have any plain, speedy, or adequate remedy in the ordinary course of the law; that the questions presented are of vital interest to all of the people of this state; and that if the relief prayed for is not granted, the state will be put to great additional expense by reason of the submission of the measure through the printing of the ballots and otherwise, all of which allegations are denied by the answer.

The answer, by way of affirmative defense, alleges that an action was commenced in the district court of Lewis and Clark County by one Matthews in July, 1936; that by that action the petitions filed with the Secretary of State looking to the submission of the measure in question were called in question; that that action was terminated on September 4, 1936, in favor of the defendant Secretary of State; that the plaintiff therein was represented by the same counsel as appear herein; that after the termination of such action the Secretary of State, in pursuance of his duties as such officer, caused to be printed many thousands of copies of this proposed measure and distributed the same as provided by law; that the state has thereby been put to great expense; that the plaintiff herein knew, or should have known, all of these matters; and that because thereof this plaintiff is estopped from now calling any of these matters in question. A number of questions are presented, but the conclusions at which we have arrived make necessary the consideration of the following only:

1. Does the form of the ballot by which it is proposed to submit Initiative Measure No. 39 comply substantially with the law in that regard?

2. Is this court empowered, in a situation such as is here presented, to grant the relief prayed for, or to grant any relief?

3. May plaintiff maintain this action?

4. Is the plaintiff estopped from prosecution of this action?

Ordinarily, this court would consider first the jurisdictional question, and whether or not the plaintiff may maintain this action; but these questions are dependent, at least in part, upon the nature of the matter presented, whether or not it is such as that the liberties of all the people are involved, or whether the people of this state generally have an interest in the subject-matter of this suit; and, since these questions must be developed in the consideration of the question whether or not the form and contents of the ballot comply substantially with the law, we shall first direct our attention to that phase of the cause.

In 1905 the legislative department of this state determined to submit to the electors thereof an amendment to section 1 of article 5 of the Constitution of Montana, relating to the right of the electors to initiate certain laws, and as well to provide for the reference of acts passed by the Legislature. This determination was voiced by the enactment of chapter 61 of the Session Laws of 1905. At the general election held in 1906 such amendment was submitted to and adopted by the qualified electors of this state and became and now is a part of section 1 of article 5 of our Constitution. It is under the provisions of that section of our Constitution, together with the statutes thereafter enacted, that Initiative Measure No. 39 is proposed.

This constitutional amendment provides in part:

"And in submitting the same [initiative and referendum measures] to the people, he (secretary of state), and all other officers, shall be guided by the general laws and the act submitting this amendment, until Legislation shall be especially provided therefor."

Chapter 61, among other things, provides:

"It shall be the duty of the Legislative Assembly to enact Legislation suitable for carrying this amendment into effect." Section 2.

Obedient to that command of the electorate, our Legislature has from time to time enacted statutes relating to the submission of initiative and referred measures, which acts are comprised within sections 99 to 108, inclusive, R.C.M.1935.

We are here concerned with the provisions of those statutes only which relate to the contents and form of the ballot by which an initiative measure may be submitted.

Sections 103 and 104, R.C.M.1935, set forth that which the ballot shall contain, together with its form. As hereinbefore noted, the contents and form of the ballot by which it is proposed to submit Initiative Measure No. 39 are set forth in the complaint and admitted by the answer. In order to determine whether or not the contents and the form of this proposed ballot substantially comply with the provisions of sections 103 and 104, let us first examine the provisions of those sections in that regard, and then compare those provisions with the contents and form of the proposed ballot. Section 103, in so far as material here, provides:

"The secretary of state, at the same time that he furnishes to the county clerk of the several counties certified copies of the names of the candidates for office, shall also furnish the said county clerks his certified copy of the titles and numbers of the various measures to be voted upon at the ensuing general or special election, and he shall use for each measure a title designated for that purpose by the legislative assembly, committee, or organization presenting and filing with him the act, or petition for the initiative or the referendum, or in the petition or act; provided, that such title shall in no case exceed one hundred words, and shall not resemble any such title previously filed for any measure to be submitted at that election which shall be

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