State ex rel. Hay v. Alderson

• Decision Date: 16 July 1914
• Docket Number: No. 3517.,3517.
• Citation: 49 Mont. 387
• Parties: STATE EX REL. HAY v. ALDERSON, SECRETARY OF STATE.
• Court: Montana Supreme Court

49 Mont. 387

STATE EX REL. HAY

v.ALDERSON, SECRETARY OF STATE.

No. 3517.

Supreme Court of Montana.

July 16, 1914.

Application by the State, on relation of G. R. Hay, for an injunction restraining A. M. Alderson, Secretary of State, from proceeding to refer Laws 1913, c. 97, regulating boxing and sparring in the state of Montana, to the people for adoption or rejection. Order to show cause discharged, and proceeding dismissed.

O. W. McConnell and Henry C. Smith, both of Helena, for relator.

D. M. Kelly, Walsh, Nolan & Scallon, and W. D. Rankin, all of Helena, E. K. Cheadle, of Lewistown, and Alex Mackel, of Butte, for respondent.

Statement of the Case.

PER CURIAM.

The Thirteenth legislative assembly enacted a measure known as House Bill No. 154, under the title:

“An act establishing a state athletic commission and regulating boxing and sparring in the state of Montana.” Laws 1913, p. 429.

By approval of the Governor it became a law on March 14, 1913. Within six months after the adjournment of the Legislature a referendum petition was filed with the secretary of state, signed by the requisite number of electors, designated as “Referendum Measure No. 6,” ordering that the act be referred to the electors of the state for their approval or disapproval at the election to be held on November 3, 1914, under the provisions of section 1 of article 5 of the Constitution. In pursuance of the statute enacted to effectuate this provision, and within the time prescribed (Rev. Codes, § 110; Laws 1913, c. 66, § 1), the secretary of state was proceeding to furnish the clerks of the several counties of the state with copies of the referendum measure, with the title thereto, for distribution among the electors therein, when the relator, a qualified elector and resident taxpayer of Lewis and Clark county, applied to this court for an injunction to restrain the respondent, as such officer, from proceeding further in the premises. In making the application, the relator proceeded upon the assumption that the secretary of state, in having the copies printed and furnished to the clerks at the expense of the state, was acting without authority of law, in that the amendment to section 1 of article 5 of the Constitution, supra, providing for direct legislation and reference of laws, was never legally submitted to, and ratified by, the electors of the state and is therefore invalid, and that the legislation enacted to effectuate it is also invalid. Upon the filing of the petition an order to show cause was issued. The respondent appeared by general demurrer. This having been overruled pro forma, he filed an answer. Though the answer contains formal denials of some of the allegations of the petition, it presents no material issue of fact. Therefore the questions for decision arise upon the facts as alleged in the petition, which may be briefly stated as follows:

The Ninth legislative assembly passed an act requiring the submission of the amendment in question to the electors of the state. The act set out in full the section as it would read as amended. It provided the form of the ballot to be used, directing that there should be printed thereon the following:

“For the Amendment to the Constitution Providing for Direct Legislation and Reference of Laws,” and “Against the Amendment to the Constitution Providing for Direct Legislation and Reference of Laws.”

When the Constitution was adopted, the section read as follows:

“The legislative power shall be vested in a Senate and House of Representatives, which shall be designated ‘The Legislative Assembly of the State of Montana.’ ” Article 5, § 1.

The amended section is the following:

“The legislative authority of the state shall be vested in a legislative assembly, consisting of a Senate and House of Representatives; but the people reserve to themselves power to propose laws, and to enact or reject the same at the polls except as to laws relating to appropriations of money, and except as to laws for the submission of constitutional amendments, and except as to local or special laws, as enumerated in article V, section 26, of this Constitution, independent of the legislative assembly; and also reserve power at their own option to approve or reject at the polls, any act of the legislative assembly, except as to laws necessary for the immediate preservation of the public peace, health or safety, and except as to laws relating to appropriations of money, and except as to laws for the submission of constitutional amendments, and except as to local or special laws, as enumerated in article V, section 26, of this Constitution. The first power reserved by the people is the initiative, and eight per cent. of the legal voters of the state shall be required to propose any measure by petition; provided, that two-fifths of the whole number of the counties of the state must each furnish as signers of said petition eight per cent. of the legal voters in such county, and every such petition shall include the full text of the measure so proposed. Initiative petitions shall be filed with the secretary of state, not less than four months before the election at which they are to be voted upon.

The second power is the referendum, and it may be ordered either by petition signed by five per cent. of the legal voters of the state; provided, that two-fifths of the whole number of the counties of the state must each furnish as signers of said petition five per cent. of the legal voters in such county, or, by the legislative assembly as other bills are enacted.

Referendum petitions shall be filed with the secretary of state, not later than six months after the final adjournment of the session of the legislative assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people by the legislative assembly or by initiative referendum petitions.

All elections on measures referred to the people of the state shall be had at the biennial regular general election, except when the legislative assembly, by a majority vote, shall order a special election. Any measure referred to the people shall still be in full force and effect unless such petition be signed by fifteen per cent. of the legal voters of a majority of the whole number of the counties of the state, in which case the law shall be inoperative until such time as it shall be passed upon at an election, and the result has been determined and declared as provided by law. The whole number of votes cast for Governor at the regular election last preceding the filing of any petition for the initiative or referendum shall be the basis on which the number of legal petitions and orders for the initiative and for the referendum shall be filed with the secretary of state; and in submitting the same to the people, he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor. The enacting clause of every law originated by the initiative shall be as follows: ‘Be it enacted by the people of Montana.’ This section shall not be construed to deprive any member of the legislative assembly of the right to introduce any measure.”

At the election held on November 6, 1906, the amendment was ratified by the following vote: For the amendment, 36,374; against the amendment, 6,616--the affirmative and negative vote cast in the several counties being approximately in the same ratio. On December 6, 1906, by proclamation the Governor declared the amendment to be in force. Prior to the election publication was directed by the secretary of state to be made in newspapers in the several counties to meet the requirement of section 9, art. 19, of the Constitution. In most of the counties publication covered the full period of 3 months immediately prior to the day of the election. In about one-third of the entire number publication was made for 13 consecutive weeks only from and after July 27, 1906, the earliest date of any publication, thus leaving 10 days or more--in one instance 23--to intervene between the date of the last publication and the day of election. In three counties publication was made in one issue each week in a daily paper. In one instance publication was made in the Sunday issue only of a daily paper, except that during the last week before the election publication was made daily. In another publication was made only in the alternate issues of a semiweekly paper.

Opinion.

1. The relator's first contention is that the amendment in question is invalid, because not submitted in conformity with the provision of section 9, art. 19, of the Constitution, as follows:

“Should more amendments than one be submitted at the same election, they shall be so prepared and distinguished by numbers or otherwise that each can be voted upon separately.”

From the language of the amendment itself, from the nature of the functions involved, and from historical considerations, it is possible to view the initiative and the referendum as separable propositions and thus to construct an argument of such plausibility as to completely justify the reference of the question to this court, in order that doubt upon the subject should be set at rest. To briefly illustrate: It is suggested by the relator that the amendment itself distinguishes the initiative from the referendum, specifically characterizes them as “the first power” and “the second power,” respectively, and prescribes different conditions upon which they may be invoked; that, as submitted, the elector was obliged to accept or reject both, although one of them--the initiative--is wholly legislative in character, and commends itself to minds who might oppose the referendum as calculated to disturb rights vested under enactments of the Legislature, while the referendum is a veto, pertains to the executive power, and commends itself to many who might view the...