State ex rel. James v. Aronson

• Decision Date: 20 August 1957
• Docket Number: No. 9805,9805
• Parties: STATE of Montana ex rel. David F. JAMES, Relator, v. J. Hugo ARONSON, Forrest H. Anderson, and Frank Murray, being and constituting the State Board of Examiners, et al., Respondents.
• Court: Montana Supreme Court

Page 849

314 P.2d 849

132 Mont. 120

STATE of Montana ex rel. David F. JAMES, Relator, v. J. Hugo ARONSON, Forrest H. Anderson, and Frank Murray,

being and constituting the State Board of

Examiners, et al., Respondents.

No. 9805.

Supreme Court of Montana.

Aug. 20, 1957.

Ralph J. Anderson, Helena, and Ben E. Berg, Jr., Livingston, for relator.

Ralph J. Anderson, Helena, and Ben E. Berg, Jr., Livingston, argued orally for relator.

Forrest H. Anderson, Atty Gen., William F. Crowley and James A. Robischon, Asst. Attys. Gen., for respondents.

William F. Crowley and James A. Robischon, Asst. Attys. Gen., argued orally, for respondents.

CASTLES, Justice.

This is an original proceeding in this court. The relator is seeking a writ of mandate to compel the State Board of Examiners to allow his claim for actual expenses in attending the organizational meeting of the Legislative Council created pursuant to the provisions of House Bill 46, chapter 34, Laws of 1957.

The application for a writ of mandamus alleges the enactment of the act, the appointment of the relator as a member of the Interim Committee known as the Legislative Council, the attendance at a meeting for organization, the filing of his claim for actual expenses pursuant to the provisions of the act and the rejection of the claim by the State Board of Examiners upon the ground that the act is unconstitutional under the authority of the case of State ex rel. Mitchell v. Holmes, 128 Mont. 275, 274 P.2d 611.

An alternative writ of mandamus was issued directed to the respondent Board. To the alternative writ, the respondents filed three separate pleadings: a general demurrer, a motion to quash, and an answer. The motion to quash challenged the sufficiency of the alternative writ of mandate and the affidavit upon which it was based. The motion to quash also alleged that the act under which the relator seeks relief is unconstitutional and pointed out the specific provisions of the Constitution which are alleged to be violated by the statute. As previously stated, a general demurrer was also filed.

The answer of the respondents places in issue the validity of the appointments to the Legislative council.

House Bill 46, now designated as chapter 34, Laws of 1957, became law when the governor signed it on February 21, 1957. The relator, State Senator David F. James, of Liberty County, was a member of the 1957 legislative body, and it is conceded by the respondents that he did attend the organizational meeting, and should be entitled to payment of his claim for actual expenses, if (1) his appointment was properly made under the terms of the act in question, and (2) if the act itself is constitutional.

Two cases have heretofore been before this court involving similar enactments. In the first case, State ex rel. Mitchell v. Holmes, supra, chapter 143, Laws of 1953 was declared unconstitutional by a three to two decision of this court. The present act omits some of the provisions which were condemned by the court in that case, first, a provision extending the term of membership on the Council beyond the legislative term to which he was elected, and second, the right to accept donation of funds. Other provisions of the present act were condemned in that case.

The second case, that of State ex rel. Schara v. Holmes, Mont.1956, 295 P.2d 1045, turned upon the question of the validity of the appointment of the members of the Council.

The 1957 Act being questioned is, in part, as follows:

'Section 1. There is hereby created a legislative council which shall consist of six (6) members of the House of Representatives who shall be appointed by the Speaker of the House of Representatives, * * * and six (6) members of the State Senate who shall be appointed by the committee on committees of the State Senate, * * * The first members of the legislative council shall be appointed not later than the sixtieth legislative day of this session. New members of the council shall be appointed not later than the sixtieth legislative day of each succeeding session. Membership on said council shall terminate with the termination of each member's term of office, or on December 31 of the year following the year in which the appointment was made, whichever event first occurs. Any vacancy on said legislative council occurring when the legislature is not in session may be filled by the selection of another member of the legislature, by the remaining members of the council.

'Section 2. Powers and Duties. The legislative council shall accumulate, compile, analyze and furnish such information bearing upon any matters relating to existing or prospective legislation as may be determined by it upon its own initiative pertaining to important issues of policy and questions of statewide importance, including but not limited to investigation and study of the possibilities of consolidations of departments, commissions, boards and institutions in state government for the elimination of unneccessary activities and duplications in office personnel and equipment, for the coordination of activities, for the purpose of increasing efficiency of service or effecting economies, and for the purpose of studying and inquiring into the financial administration of state governments and subdivisions thereof, including the problems of assessment and collection of taxes, and all other matters pertaining to the function of all departments and branches of state government.

'The legislative council shall prepare such bills and resolutions as in its opinion the welfare of the state may require for presentation to the next regular session of the legislative assembly.

'Section 3. The legislative council may employ an executive director and such other personnel, not members of the council, as it deems necessary to assist in the preparation of its recommendations, proposed legislative acts and any other activities and shall fix the compensation of such employees. It shall further have the power to employ the services of any research agency which it deems necessary in the discharge of its duties.

'The legislative council may appoint special committees composed of either other members of the legislature or private citizens or both, to study and inquire into any specific governmental problem and to make recommendations for the solution of same. The work of such special committees shall be performed under the general supervision of the legislative council and the personnel, data and facilities of said council shall be made available to such special committees.

'Section 4. The legislative council shall have authority to investigate and examine into the costs of state governmental activities and may examine and inspect all records, books and files of any department, agency, commission, board or institution of the State of Montana.

'Section 5. In the discharge of its duties the legislative council shall have authority to hold hearings, administer oaths, issue subpoenas, compel the attendance of witnesses, and the production of any papers, books, accounts, documents and testimony, and to cause depositions of witnesses to be taken in the manner prescribed by law for taking depositions in civil actions in the District Court. In case of disobedience on the part of any person to comply with any subpoena issued on behalf of the council, or any committee thereof, or of the refusal of any witness to testify on any matters regarding which he may be lawfully interrogated, it shall be the duty of the District Court of any county or the judge thereof, on application of the legislative council to compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court on a refusal to testify therein.

'Section 6. Members of the legislative council and its committees shall serve without compensation but shall be reimbursed for actual travel and other expenses incurred in the discharge of their duties, including attendance at meetings.

'Section 7. The legislative council shall organize within thirty (30) days after the passage and approval of this act by electing one (1) of its members as its chairman and by electing such other officers from among its membership as the council may deem desirable. The council is empowered to adopt rules of procedure and to make all arangements for its meetings and to carry out the purpose for which it is created. The council and its committees are directed to keep accurate records of their activities and proceedings.

'Section 8. There is hereby appropriated the sum of one hundred thousand dollars ($100,000.00) for the purpose of carrying out the provisions of this act. * * *'

The respondents' motion to quash challenged this statute as being in contravention of the Montana State Constitution on several grounds that will appear hereinafter.

There are several differences between the statute above set forth, and chapter 143, Session Laws of 1953, which was condemned by this court in Mitchell v. Holmes, supra. In the 1953 Act, membership on the Council continued on throughout the legislative session, which the court held extended the term of office of a member of the House of Representatives beyond the constitutional limitation of two years in violation of section 2, article V of the Constitution. The 1957 Act specifically provides that membership on the Council expires upon termination of the member's legislative term, and in no event may continue beyond December 31 of the year following appointment to the Council.

Also, the 1953 Act permitted the Council to receive grants of money which the court, in Mitchell v. Holmes, held violated section 1, article XIX of the Constitution. No such provision is found here.

The similarities between the 1953 Act and the 1957 Act are as follows: (1) Both acts create a Legislative Council to serve in the interim, with the power to investigate, report and recommend; (2) Membership on the Council is composed...