State ex rel. Livingstone v. Murray
| Decision Date | 21 July 1960 |
| Docket Number | No. 10165,10165 |
| Citation | 354 P.2d 552,137 Mont. 557 |
| Parties | STATE of Montana ex rel. Neil C. LIVINGSTONE, Jr., Plaintiff, v. Frank MURRAY, as the Secretary of State of the State of Montana, Defendant. |
| Court | Montana Supreme Court |
John H. Risken, A. W. Scribner, Helena, argued orally for appellant.
Wm. F. Crowley, Helena, argued orally for respondent.
This is an original proceeding for writ of injunction. The relator, a voter and taxpayer of Lewis and Clark County, Montana, filed herein his petition and application to this court asking for a temporary restraining order, restraining the Secretary of State from expending public funds and from incurring state indebtedness in publishing or causing to be published any proposed amendments to the Constitution of the State of Montana, that are proposed, set forth and contained in Chapter 191, Montana's Thirty-Sixth Legislative Assembly, Session Laws of 1959, originating as Senate Bill No. 7, and passed by the votes of both the Senate and the House of Representatives by a two-thirds vote.
After the ex parte hearing on relator's application, this court issued its temporary restraining order and injunction on June 6, 1960, and in said order directed that the Secretary of State of the State of Montana, respondent, appear on June 16, 1960, and show cause, if any, why said temporary restraining order should not be made permanent. On such date, both parties appeared before this court, the secretary of state appearing by his counsel, Wm. F. Crowley, first assistant attorney general for the State of Montana, who filed on respondent's behalf a motion to quash the restraining order, and relator appeared by his counsel, John H. Risken, Esq. and A. W. Scribner, Esq. The cause was fully argued. Both litigants filed exhaustive briefs. The cause was then submitted and taken under advisement by the court.
Thereafter, and on June 22, 1960, owing to the urgency of the matter, this court issued its order disallowing and denying respondent's motion to quash the temporary order and writ issued on June 6, 1960, and the court's order of June 22, 1960, further ordered that the temporary writ and injunction issued herein on June 6, 1960, be made permanent and that a written opinion would follow.
The questions presented by this proceeding are substantially these:
The Constitution of Montana provides at the present time by section 11, of Article XI, that, Emphasis supplied.
The Legislature, by Chapter 191, Session Laws of 1959, attempted to propose an amendment to section 11, of Article XI of our State Constitution for submission to the people, which amendment originated in the Senate as Senate Bill No. 7 was passed by a two-thirds vote of the members elected to each house of the said Legislature and was then deposited in the office of the Secretary of State of Montana, on March 9, 1959.
It is contended by relator:
(1) That under the requirements of Chapter 191, the defendant is commanded and is proceeding to have printed upon the official ballot the title only of said Act. That said proposed constitutional amendments and the proposed title, as proposed, will require relator and all other voters to approve or reject the same in toto. Each elector voting will be deprived of the opportunity to vote separately upon each of the two unrelated proposed amendments allegedly incorporated in the one Act of the Legislature.
(2) That the Act is unconstitutional, invalid, and void for the reasons that it violates section 9 of Article XIX, in that it provides for the submission to the qualified electors, of two distinct and unrelated amendments and subjects to the Constitution, without preparing or distinguishing the same separately, by number or otherwise, so that each can be voted upon separately, to-wit.
(a) an amendment pertaining to the control and administration of the elementary school system by a board of eight members appointed by the governor, and
(b) an amendment creating a separate board comprised of eight members to be appointed by the governor to be known as the board of regents, having general control and supervision over the University of Montana.
(3) That the Act, Chapter 191, supra, violates section 23, of Article V of the Constitution of Montana, in that it contains 'more than one subject', and the same are not clearly 'expressed in the title' as it was purposed on the official ballot.
(4) That the Act violates section 40 of Article V and section 12 of Article VII of the Montana Constitution, in that it was never signed or otherwise approved or rejected by the governor of the State of Montana.
As this particular constitutional challenge raises questions never presented to this court before, and the questions raised are of great economic, political and wide concern to every parent, child and taxpayer in this state, we deem it necessary to again set forth the present provision of our State Constitution, section 11 of Article XI, which has been attempted to be amended, followed by the proposed amendment and then the title of the said proposed amendatory Act, that was ordered to be printed on the official ballot, so that a complete understanding of the implications thereof may be fully understood.
Section 11, or Article XI, Montana Constitution, provides:
Emphasis supplied.
The proposed amendatory Act as it appears in the Thirty-Sixth Session Laws of Montana 1959, as Chapter 191 thereof, is as follows:
'An Act to Provide for the Submission to the Qualified Electors of the State of Montana an Amendment to Section 11, Article XI of the Constitution of the State of Montana Relating to the General Control and Supervision of the State University and the Various Other State Educational Institutions, to Provide for the Establishment of a State Board of Education Consisting of Eight (8) Members to be Appointed by the Governor, Subject to Confirmation by the Senate, Under the Regulations and Restrictions to be Provided by Law, to Provide That the General Control and Supervision of the Public, Free, Common Schools Shall be Vested in the State Board of Education; to Provide That the General Control and Supervision of the University of Montana Shall be Vested in a Board of Regents, Whose Powers and Duties Shall be Prescribed by Law, to Provide That the Board of Regents Shall Consist of Eight (8) Members, Appointed by the Governor, Subject to Confirmation by the Senate, Under the Regulations to be Provided by Law; to Provide for an Effective Date.
'Be it enacted by the Legislative Assembly of the State of Montana:
'Section 1. That section 11 of article XI of the Constitution of the State of Montana be amended as hereinafter provided, and that the question of such amendment be submitted to the qualified electors of the State of Montana, at the general election to be held in November of 1960.
'Section 2. That section 11 of article XI of the Constitution of the State of Montana be, and the same is hereby amended to read as follows:
'[ ] For the above amendment
'[ ] Against the above amendment.
'(See attached opinion.)
'Note: Official opinion of Attorney General, dated February 27, 1959...
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