State ex rel. Mitchell v. Holmes

• Decision Date: 21 January 1954
• Docket Number: No. 9296,9296
• Citation: 274 P.2d 611,128 Mont. 275
• Parties: STATE ex rel. MITCHELL v. HOLMES, State Auditor, et al.
• Court: Montana Supreme Court

Page 611

274 P.2d 611

128 Mont. 275

STATE ex rel. MITCHELL v. HOLMES, State Auditor, et al.

No. 9296.

Supreme Court of Montana.

Jan. 21, 1954.

Order Filed Jan. 22, 1954.

Loble & Loble and Gene A. Picotte, Lester H. Loble, Helena, for appellant.

Arnold H. Olsen, Atty. Gen., John L. McKeon, Asst. Atty. Gen., for Auditor and Treasurer.

Ralph J. Anderson, Stanley P. Sorenson, Helena, for Mont. Legislative Council.

FREEBOURN, Justice.

This is an original proceeding in this court whereby the relator Sam W. Mitchell seeks a writ of injunction to enjoin and restrain the state auditor from approving claims, and issuing warrants therefor, and the state treasurer from paying the same, as made by the eight respondent members of the Thirty-third Legislative Assembly of the State of Montana, assuming to act as the 'Montana Legislative Council,' and to enjoin and restrain the eight respondent members of such Legislative Assembly from acting as such council.

It is the contention of the relator that the legislative act of the 1953 Legislative Assembly, which purports to create the 'Montana Legislative Council,' is unconstitutional.

With such contention we agree.

Chapter 143, Laws of 1953, enacted by the Thirty-third Legislative Assembly of the State of Montana and purporting to create the 'Montana Legislative Council' is unconstitutional and invalid for the following reasons:

1. In addition to the $30,000 appropriated by the Legislature for the work of this council the Act provides: 'In accomplishing the purposes of this act, the council is empowered to accept grants of money * * * from any * * * person or corporation * * *.' Section 8.

All the members of the council are members of the Thirty-third Legislative Assembly of Montana and, as such, public officers. If public officers of the state, whether legislative, executive or judicial, were permitted to accept grants or gifts of money from any person or corporation, the grantors and givers of such money would have a financial interest, for it is well known that he who controls the purse pulls the string, to the detriment of the individual citizen. The taking of such money, whether attempted to be sanctioned by statute or not, would encourage an unwholesome condition and would be in direct conflict with and violative of the constitutional oath, taken by all public officers in this state, whereby each swears:

'I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity; * * * that I will not knowingly receive, directly, or indirectly, any money or other valuable thing for the performance or non-performance of any act or duty pertaining to my office other than the compensation allowed by law, so help me God.' Article XIX, Sec. 1, Montana Constitution.

2. This Act allows members of the 1953 Legislative Assembly (four members of the House of Representatives and four members of the State Senate), who were to comprise the council, 'actual traveling and other expenses incurred in the discharge of their duties, including attendance at meetings.' This violates Article V, Sec. 5, of the Montana Constitution which provides the per diem and mileage allowed each member of the legislative assembly and says that he 'shall receive no other compensation, perquisite, or allowance whatsoever.'

3. The Act contravenes Article V, Sec. 8, of the Montana Constitution which provides: 'No member of either house shall, during the term for which he shall have been elected, receive any increase of salary or mileage under any law passed during such term.'

4. The Act contravenes, also, Article V, Sec. 26, of the Montana Constitution which provides: 'The legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * creating, increasing or decreasing fees, percentages or allowances of public officers * * *.'

5. Every member of the purported council is a member of the 1953 Legislative Assembly, the House members being elected for a term covering 1953 and 1954. The term of the House members or representatives who are members of this council ceases at the end of 1954. Yet this Act, in the face of Article V, Sec. 2, of the Montana Constitution which limits the terms of representatives to a 'term of two years,' permits the legislators on such council to extend their work and investigations throughout 1953, 1954 and during the 60-day session of the next or 1955, Legislative Assembly.

6. The Act contravenes Article V, Sec. 7, of the Montana Constitution which provides: 'No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under the state * * *.'

7. The Act, also, contravenes Article IV, Sec. 1, of the Montana Constitution which provides: 'The powers of the government of this state are divided into three distinct departments: The legislative, executive, and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.'

The Act permits the legislative department, through this council, to exercise powers of investigation properly belonging to the executive and judicial departments of the state government. It permits the legislative department, through this council, to exercise powers of the judicial department by giving such council the power to 'compel the attendance of witnesses before its hearings and require the production of papers, documents or other evidence required by it, and to issue subpoenas for such purposes.'

8. It is clear from a reading of the Act that the duties of the proposed council are the same as those performed by members and committees of the regular legislative assembly during a regular 60-day session, with the exception of finally enacting proposed measures into law. Among these duties are: Examining state offices, state institutions, state funds and appropriations; receiving messages and reports from the Governor and other state officials; holding public hearings and investigations; and reporting its findings and proposed legislative enactments to each succeeding regular session of the legislative assembly, on or before the tenth day of such session.

The intent and purpose of this Act is to permit the legislative assembly to perform duties and exercise powers, acting through but eight of its members, over a period of more than two years, which the Constitution permits only to be performed and exercised by a duly organized legislative assembly over a 60-day period. The Act, therefore, violates Article V, Sec. 5, of the Montana Constitution which provides, in part, that 'No session of the legislative assembly * * * shall exceed sixty days.'

It is this court's duty to interpret this Act as directed by the Constitution which provides: 'The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.' Article III, Sec. 29.

The members of the legislative department, like the members of the executive and judicial departments of our state government, are bound by the plain mandates and prohibitions of the State Constitution as it is written and when, as here, it is sought to do that which the Constitution does not allow, the remedy is to first submit the proper amendment or amendments to the Constitution to the vote of the people and thus obtain their sanction and approval to do that which the fundamental law does not now permit.

Let the peremptory writ issue. It is so ordered.

ADAIR, C. J., and BOTTOMLY, J., concur.

ANDERSON, Justice (dissenting).

I dissent.

In the instant cause, I am constrained to adopt the views expressed by the attorney general of Montana and counsel for the Montana Legislative Council. Language found in the briefs is apropos to the question before us and I quote from it: 'Defendant respectfully submits that the order to show cause should be vacated and, in view of the authorities cited herein, that the jurisdiction of Montana place itself in complete accord with other jurisdictions of this nation by issuing a decision upholding the constitutionality of the Montana Legislative Council.'

Quoting again from the briefs, there is found the following language: 'As far as our researches extend, we too have been unable to find a single case which denies the legislature the right to appoint a body of its members to sit during vacation, nor can the basic law of those jurisdictions which have upheld the committees be distinguished from the basic laws of Montana. * * * The question of principle has never been contravened, and it is the unshakable belief of the defendant that the Montana Supreme Court will recognize this long adhered to legislative tradition * * *.'

In short, it is sought that Montana should adopt a policy which conforms with all its sister states.

This is an original proceeding for an injunction to restrain the state auditor and state treasurer from drawing state warrants, and from taking any steps whatsoever to disburse any moneys appropriated under the provisions of Chapter 143, Laws of 1953, House Bill 166, enacted by the Thirty-third Legislative Assembly.

The constitutionality of the Act is attacked by petitioner and several reasons for his position are set out in the proceeding before us.

The purpose of the Act here in question is to provide for a permanent legislative council to study and review the organization and structure of state government in Montana. The council functions between the regular legislative sessions and the functions of the present council, if the letter of the Act is carried out, terminate on the last day of the next succeeding legislature.

The briefs and...