State ex rel. DuFresne v. Leslie

• Decision Date: 08 October 1935
• Docket Number: 7463.
• Parties: STATE ex rel. DuFRESNE v. LESLIE et al.
• Court: Montana Supreme Court

50 P.2d 959

100 Mont. 449

STATE ex rel. DuFRESNE v. LESLIE et al.

No. 7463.

Supreme Court of Montana

October 8, 1935

Rehearing Denied Nov. 20, 1935.

Original mandamus proceeding by the State of Montana, on the relation of C. T. Leon DuFresne, against John Leslie and others, as county commissioners of the county of Cascade. On defendants' motion to quash.

Motion sustained and proceeding dismissed.

Freeman Thelen & Freeman, of Great Falls, for relator.

Raymond T. Nagle, Atty. Gen., and Enor K. Matson, Asst. Atty. Gen for respondents.

MORRIS Justice.

This is an original proceeding in which the relator seeks a writ of mandate to compel the board of county commissioners of Cascade county to enter into a contract with him pursuant to the provisions of chapter 149 of the Laws of 1935, relative to the payment of delinquent taxes.

The relator is the owner of certain real property in the city of Great Falls upon which the taxes are delinquent for the years 1927 to 1933, inclusive, and for the first half of 1934. Certain exhibits are made a part of relator's petition and from such exhibits it appears that the relator has complied with the requirements of chapter 149 in all matters necessary to entitle him to claim the privileges provided by the act. The respondent board admits the sufficiency of relator's proceedings before the board, but refuses to comply with his demand to enter into a contract as provided by the act on the ground that the Attorney General holds the act contravenes numerous provisions of both the Federal and State Constitutions.

After being formally advised of the ruling of the board, relator brought this action to determine his rights under the act. His petition was filed June 28, 1935. The alternative writ and order to show cause were issued as prayed for, and September 16, 1935, was set for hearing on the order. On July 13th the Attorney General, representing the county board, filed a motion to quash both the petition and the alternative writ on the grounds that "neither the petition for writ of mandate nor the alternative writ of mandate states, nor do both of them together state facts sufficient to show that the relator is entitled to a writ of mandate as prayed for herein, nor to any relief whatever." The motion to quash, being equivalent to a general demurrer, brings the controversy before us on the law. State ex rel. State Publishing Co. v. Hogan, 22 Mont. 384, 56 P. 818.

The first constitutional question raised by the Attorney General is that the act contravenes the provisions of section 39, article 5, of the Constitution of the state of Montana. A preliminary question is presented here for solution which we will deal with before considering the constitutionality of the act as a whole. This question involves the constitutional limitations restricting the powers of the Legislature.

With the evident intention to provide by law to extend certain emergency relief to taxpayers, who by reason of the depression were unable to pay their taxes, the legislative assembly, in the enactment of chapter 149 at the 1935 session, has given us a perfect illustration of the exercise of absolute power. In that act the Legislature in effect declares it is independent of a plain provision of the Constitution, by providing in the act that it shall not be deemed or construed to do what it was expressly intended to do--postpone payment of an obligation due the state.

To recall to mind the meaning of pertinent constitutional provisions and restrictions, well known and acknowledged, we think it well to recount such as are pertinent here. Amongst such provisions and restrictions are that the sovereign power of the state rests in the people. The legislative assembly, as the authorized representative of the people, exercises this sovereign power. In vesting the power in the Legislature to give expression to their will in enacting laws the people, by the Constitution, provided a check upon the Legislature, reserving the power to measure legislative acts by the fundamental law, and if not in harmony therewith, to nullify such acts. The exercise of this reserve power was vested in a co-ordinate branch of the state government, the judiciary. The power exercised by courts in declaring legislative acts invalid has been frequently criticized. The consideration of this question is greatly clarified by the reasoning on the subject in Cooley's Constitutional Limitations, which we think it appropriate to recount here. At pages 333 and 334 of Volume 1 (8th Ed.) it is said: "The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the Constitution as the paramount law, whenever a legislative enactment comes in conflict with it. *** In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an Act of the legislature is held void, it is not because they have any control over the legislative power, but because the Act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law."

It is very clear that, except for the limitations placed upon the power of the Legislature, first, by the Constitution of the United States and, second, by the Constitution of the state, the will of the legislative body may be freely exercised in all legislative matters unrestricted. Hence, to determine in what manner and to what extent the Legislature exceeded its powers in the enactment of chapter 149, that act must be examined and compared with the constitutional provisions with which it is alleged it comes into conflict. If this process reveals that the Legislature has attempted to exercise any power withdrawn from it by the Constitution, the act must be declared invalid in that particular.

The extent to which the Legislature may exercise the sovereign power of the state is clearly defined in such decisions as Hilger v. Moore, County Treasurer, 56 Mont. 146, 182 P. 477, where it is said: "The state Constitution is not a grant of, but a limitation upon, power exercised by the several departments of state government." In State ex rel. Evans v. Stewart, 53 Mont. 18, 161 P. 309, it is said that "the authority of the legislature, otherwise plenary, will not be held circumscribed by implication; but one who seeks to limit it must be able to point out the particular provisions of the Constitution which contains the limitation in clear terms." These and numerous other similar decisions express like conclusions universally admitted. In other words, the Legislature, representing the sovereign power of the state, may exercise such power to any extent it may choose, except to the extent it is restrained or limited by the State or Federal Constitutions.

In considering the validity or invalidity of legislative acts, we are governed by well-established rules. One is that every doubt must be resolved in favor of the validity of the legislative act. Hale v. County Treasurer, 82 Mont. 98, 265 P. 6; O'Connell v. State Board of Equalization, 95 Mont. 91, 25 P.2d 114, and cases cited. A second is that while legislative construction of a statute is entitled to consideration, it is not binding on the courts. State ex rel. Judith Basin County v. Poland, 61 Mont. 600, 203 P. 352; Wells Fargo & Co. v. Harrington, 54 Mont. 235, 169 P. 463; McClintock v. City of Great Falls, 53 Mont. 221, 163 P. 99; Northern Pacific Ry. Co. v. Brogan, 52 Mont. 461, 158 P. 820. A third is that with reference to the subjects upon which the Constitution assumes to speak, its declarations are conclusive upon the Legislature. State ex rel. Pierce v. Gowdy, 62 Mont. 119, 203 P. 1115. A fourth is that constitutional provisions are conclusive upon the Legislature and prevent the enactment of any law which extinguishes or limits the powers conferred by the Constitution. State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 P. 841. A fifth is that the state government being divided into three separate and distinct branches, the officials of one branch may not usurp or exercise the powers of either of the others. Section 1, art. 4, Constitution of Montana; State ex rel. Hillis v. Sullivan, 48 Mont. 320, 137 P. 392; Fulmer v. Board of Railway Com'rs, 96 Mont. 22, 28 P.2d 849. A sixth is that the Constitution vests in the courts the exclusive power to construe and interpret legislative acts, as well as provisions of the Constitution. Section 3, art. 8, Const. The soundness of these provisions of law and the rules enumerated will not, we think, be questioned.

Paragraph 1 of section 6 of chapter 149 provides as follows: "This Act shall not be deemed or construed as a release or...