State ex rel. State Board of Education v. Nagle

• Decision Date: 27 May 1935
• Docket Number: 7439.
• Parties: STATE ex rel. STATE BOARD OF EDUCATION et al. v. NAGLE, Atty. Gen., et al.
• Court: Montana Supreme Court

45 P.2d 1041

100 Mont. 86

STATE ex rel. STATE BOARD OF EDUCATION et al. v. NAGLE, Atty. Gen., et al.

No. 7439.

Supreme Court of Montana

May 27, 1935

Original proceeding for injunction by the State of Montana, on the relation of the State Board of Education of the state of Montana, and others, against Raymond T. Nagle, Attorney General of Montana, and others. On demurrer to complaint.

Permanent writ of injunction issued.

Raymond T. Nagle, Atty. Gen., and Oscar A. Provost, Asst. Atty. Gen for respondents.

STEWART Justice.

This is an original application for an injunction to enjoin the enforcement of chapter 181 of the Laws of 1935, as against the members of the state board of education and the president of the State University.

The act involved was H. B. 474. The important sections read as follows:

"Section 1. No contractor, subcontractor or agent thereof shall employ aliens or non-citizens on public works in the State of Montana; provided, that in public works involving the expenditure of Federal funds, this Act shall not be enforced in such a manner as to conflict with or be contrary to Federal statutes and regulations prescribing labor preferences. No state or other public corporation in Montana, including all state or other public offices commissions, boards, departments and other public bodies shall employ aliens or non-citizens; provided, that this restriction shall not apply to the employment of technically educated and trained or professional persons, when persons of such classes cannot be secured among the citizens of the State of Montana.

Section 2. The term 'Alien' or 'Noncitizen' as used herein means any person who is not native born, or a fully naturalized citizen, or has filed his intention to become a citizen of the United States and a resident of the State of Montana for at least one year preceding the date of being employed by the contractor, subcontractor or any agent thereof, or any department, institution or office of the State of Montana, or any subdivision thereof.

Section 3. Any officer, agent or representative of the State of Montana who shall wilfully violate, or fail to comply with any provision of this Act, and any contractor, subcontractor, or agent thereof, or department or institution or representative thereof, who shall neglect to keep an accurate record of names, occupation and citizenship of the employees, in connection with the state public works of the State of Montana, and operations of institutions and departments or who refuses to allow access to same at any reasonable hour to any person authorized to inspect same under this Act, shall be guilty of a misdemeanor and upon conviction thereof, shall be punished by a fine not exceeding Five Hundred Dollars ($500.00) or by imprisonment of not exceeding six months, or by both fine and imprisonment." The amended petition of relators alleges that since the effective date of the act, they (relators) have employed the following persons at the State University: (a) Two professors of education, citizens of the United States but nonresidents of the state of Montana, while other professors of education, residents of the state, are teaching in other colleges within the state and without making any effort to obtain the services of these resident professors; (b) two stenographers, citizens of the United States, but nonresidents of Montana; and (c) two clerks, one a citizen of the United States but not a resident of Montana, and one a resident of Montana, but not a citizen of the United States.

It is alleged that the respondents assert that in employing these persons, the relators violated the act in question, and threaten not only to prosecute the relators, but also to interfere with other necessary employment by the relators, and with relators' control of the University.

Relators allege the invalidity of the act on the grounds that (1) it is so indefinite and ambiguous as to be void; (2) it establishes no workable standard for its enforcement; and (3) it is an invalid attempt to deprive the state board of education of its constitutional control over the state educational institutions.

Respondents demurred generally, and the matter is before us on the question of whether the petition states a cause of action.

As originally drafted and introduced, the bill was not in the form finally adopted. The changed condition is due to amendments made in course of passage through the two houses. While the original bill was not very clear, it is apparent that its provisions were principally aimed at contractors and subcontractors. Its scope and provisions were substantially modified by the amendments.

It is not the province of the courts of this state to pass upon the wisdom or merits of legislative enactments, and we will not attempt to do so in this instance. That phase of the matter is clearly legislative and not judicial. 59 C.J. 945, 946; Mills v. State Board of Equalization, 97 Mont. 13, 33 P.2d 563, 569; Lewis' Sutherland on Statutory Construction (2d Ed.) § 85.

While this court will not assume to pass on the merits of the measure, it has jurisdiction to hear and determine applications for writs such as the one here under consideration. State ex rel. Clarke v. Moran, 24 Mont. 433, 63 P. 390; State ex rel. Fisher v. School District, 97 Mont. 358, 34 P.2d 522; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283.

It is our duty to uphold a legislative enactment whenever it is reasonably possible to do so. State v. State Board of Equalization, 93 Mont. 19, 17 P.2d 68, 18 P.2d 804; State ex rel. Tipton v. Erickson, 93 Mont. 466, 19 P.2d 227; Byrne v. Fulton Oil Co., 85 Mont. 329, 278 P. 514; State ex rel. Sparling v. Hitsman (Mont.) 44 P.2d 747, decided May 2, 1935.

Of the objections urged against this act, we think that the claim that it is ambiguous, unintelligible, and uncertain is by far the most serious and the only one necessary to consider here. This court is committed to the wholesome and generally recognized rule that statutes imposing burdens, either civil or criminal, upon the citizens must be clear and explicit. This rule is applicable to tax impositions, Shubat v. Glacier County, 93 Mont. 160, 18 P.2d 614; Vennekolt v. Lutey, 96 Mont. 72, 28 P.2d 452, 454; Mills v. State Board of Equalization, supra. The principle is even more important in matters involving criminal penalties. H. Earl Clack Co. v. Public Service Commission, 94 Mont. 488, 22 P.2d 1056, 1059.

Within recent years this court has been called upon to consider several matters involving legislative enactments resting under charges of ambiguity and uncertainty such as are lodged here. In the opinions then written, we discussed the general subject in its many aspects, and recognized and adopted rules which to us seemed proper and appropriate. These rules were amply fortified by pertinent citations of, and quotations from, well-reasoned cases from many jurisdictions. A careful examination of chapter 181, supra, and the objections urged against it fail to disclose anything new or novel. It is our opinion that all applicable law necessary for the decision of this matter may be found in the following cases: H. Earl Clack Co. v. Public Service Commission, supra; Vennekolt v. Lutey, supra; Mills v. State Board of Equalization, supra; In re Maury, 97 Mont. 316, 318, 34 P.2d 380, 384; Montana Beer Retailers' Protective Ass'n v. State Board of Equalization, 95 Mont. 30, 25 P.2d 128.

Specific and separate charges are urged against each of the important sections of chapter 181. These sections are numbered 1 and 2, and with these objections there is coupled the charge that the ambiguity and uncertainty does not lie alone in the text employed, but that the act as a whole is uncertain and unworkable because of a paucity of provisions for the guidance of officers in the matter of determining when a contemplated act will be legal and when it may become criminal.

It is argued that there is a general vagueness in such terms as "classes," "technically educated," "trained," and "professional persons," as used in section 1. It is also suggested that there is nothing in the act to guide those in the position of relators in deciding whether certain persons such as were employed by them are included within the meaning of the term "technically educated and trained or professional persons" as used in the act, and that the provision "when persons of such classes cannot be secured among the citizens of the State of Montana" is so ambiguous that it is impossible for them to determine whom they may employ. It is contended that the act is defective because no workable standards or means are set up whereby it may be ascertained, in the case of technically educated or trained or professional persons, whether persons of such classes can be secured among the citizens of the state.

Respondents contend that all the words and terms used in section 1 of the act and of which complaint is made, have a meaning in their ordinary use, and, since they are not technical, not defined in the Codes, and without peculiar meaning in law, they must be understood in the ordinary sense. In support of this position they cite section 15, Revised Codes 1921, Lewis v. Petroleum County, 92 Mont. 563, 17 P.2d 60, 86 A. L. R. 575, and State ex rel. Hahn v. District Court, 83 Mont. 400, 272 P. 525. They point out that all of these words are fully defined in standard dictionaries and have a recognized and commonly understood meaning.

It is a rule well recognized and announced by this court in the cases hereinbefore cited,...