State v. Cooney
| Decision Date | 12 April 1924 |
| Docket Number | 5507. |
| Citation | 225 P. 1007,70 Mont. 355 |
| Parties | STATE EX REL. CORRY v. COONEY ET AL. (SHEEHAN, INTERVENER). |
| Court | Montana Supreme Court |
Suit by the State of Montana, on the relation of Arthur V. Corry against Byron E. Cooney and others, as Board of County Commissioners of Silver Bow County, and another, in which M J. Sheehan intervenes. On motion to quash citation and demurrers to petition and complaint in intervention. Proceeding dismissed.
J. A Poore, of Butte, for relator.
Timothy F. Nolan, H. K. Jones, Roy S. Alley, F. K. Sullivan, Jas. H. Baldwin, J. H. Griffin, M. Kerr Beadle, N. A. Rotering, Clarence Hanley, C. E. O'Neill, J. T. Fitzgerald, A. R. Bertoglio, Earl Blodgett, D. T. Malloy, F. E. McCracken, J. T. Andrew, J. E. Healy, George Toole, Jeremiah J. Sullivan, M. F. Canning, Alex Levinski, Harry J. Freebourn, Timothy E. Downey, M. J. English, and Wm. Maloney, all of Butte, for intervener.
George Bourquin, of Butte, for respondents.
Charles R. Leonard, Templeman & Sanner, Thomas J. Walker, Miles J. Cavanaugh, Frank W. Haskins, Carl Christian, E. B. Howell, Jessie Roscow, Maury & Maury, Frank & Gaines, L. P. Sanders, and F. C. Fluent, all of Butte, amici curiæ.
The Seventeenth Legislative Assembly proposed an amendment to article 16 of the Constitution of Montana by adding thereto the following:
Chapter 113, Session Laws 1921, p. 119.
At the general election held in November, 1922, the people voted in favor of the proposed amendment, and by proclamation it was declared to be a part of the Constitution.
Acting in pursuance of the amendment, the Eighteenth Legislative Assembly enacted a law designed to authorize the consolidation of the corporate existence and government of the county of Silver Bow and all cities and towns within that county into a municipality to be known as "City and County of Butte." This act (chapter 160 of the Session Laws of 1923, p. 480) was approved March 14, 1923.
On January 22, 1924, a petition signed by at least, 2,500 electors of Silver Bow county was filed with the county clerk, requesting that the adoption of the act be submitted to the electors of Silver Bow county. The county clerk, having found that the petition was signed by the required number of electors, on February 4th certified the fact to the board of county commissioners, which on February 11 fixed May 12, 1924, as the day for holding the election. Thereupon Arthur V. Corry, as relator, brought this action against the board and the county clerk, seeking an injunction to prohibit those officers from proceeding with the election. We issued an order to show cause, returnable April 5, 1924. In the meantime M. J. Sheehan, a creditor of the city of Butte and also of the county of Silver Bow, by permission of the court filed a complaint in intervention, likewise asking for an injunction to prevent the election. The respondents, through the county attorney of Silver Bow county, appeared by motion to quash the citation and also filed a general demurrer to the petition for an injunction, as well as to the complaint in intervention. A number of attorneys and counselors at law residing in the city of Butte were permitted to appear as amici curiæ, and the cause was submitted upon the merits upon the date fixed in the citation.
Counsel for relator and intervener have attacked the validity of the constitutional amendment itself and of the act upon numerous grounds. A minor attack is based upon an alleged insufficiency of the petition submitting the Act to the people.
I. As preliminary we heed the voice of sections 1 and 2 of article 3, being the first two sections of the Declaration of Rights:
That the forms prescribed for the submission of the amendment to the people have been followed is not questioned, and here as always we enter upon a consideration of the validity of a constitutional amendment after its adoption by the people with every presumption in its favor: The question is not whether it is possible to condemn the amendment, but whether it is possible to uphold it, and we shall not condemn it unless in our judgment its nullity is manifest beyond a reasonable doubt. State ex rel. Hay v. Alderson, 49 Mont. 387, 142 P. 210, Ann. Cas. 1916B, 39; Martien v. Porter, 68 Mont. 450, 219 P. 817.
(a) The first objection, vigorously asserted, is that section 7 of article 16 is not an amendment to the Constitution, but an attempted revision. Revision, it is said, can be done only by a constitutional convention under the provisions of section 8 of article 19 of the Constitution, which provides:
"The Legislative Assembly may at any time, by a vote of two-thirds of the members elected to each house, submit to the electors of the state the question whether there shall be a convention to revise, alter, or amend this Constitution," etc.,
--while section 9, upon which the amendment is based, relates to amendments only.
The objection is not tenable. The Legislature in proposing section 7 to article 16 did not intend to "revise" the Constitution, either in whole or in part. Revision as contemplated in section 8 implies a re-examination and restatement of the Constitution, or some part of it, in a corrected or improved form. The revision may be with or without material change; but clearly, as the word is used in the section, it implies the probability of extensive and comprehensive action by the convention. See Sutherland on Statutory Construction (Lewis' Ed.) § 269; Pratt Institute v. City of New York, 183 N.Y. 151, 75 N.E. 1119, 5 Ann. Cas. 198.
In legislative parlance "amendment" is an alteration or change of something proposed in a bill or established as law. Bouvier's Law Dictionary. A statute which adds a provision to a section or an existing statute is an amendment. Henderson v. City of Galveston, 102 Tex. 163, 114 S.W. 108. Generally speaking, an amendment repeals or changes some provision of a pre-existing law or adds something thereto. Board of Public Instructions v. Board of Commissioners, 58 Fla. 391, 50 So. 574.
The word "amendment" is clearly susceptible to a construction which would make it cover several propositions, all tending to effect and carry out one general object or purpose, and all connected with one subject, as well as to the construction that every proposition which effects a change in the Constitution, or adds to or takes from it, is an amendment. Words and Phrases, "Amendment"; State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785; People ex rel. Elder v. Sours, 31 Colo. 369, 74 P. 167, 102 Am. St. Rep. 34.
That the act was simply intended as amendatory of the Constitution is indicated by its purpose.
When the convention which framed our Constitution was in session a committee, variously known as that on "County, City and Town Government" and as "City, County and Town Organizations," proposed article 16 under the head of "Municipal Corporations and Officers." This is the only article which has to do with municipal corporations and officers as such. It embraces the general subject of counties, county officers, and section 6 thereof says:
"The Legislative Assembly may provide for the election or appointment of such other county, township, precinct and municipal officers as public convenience may require and their terms of office shall be as prescribed by law, not in any case to exceed two years, except as in this Constitution otherwise provided."
The term "municipal officers" means city or town officers. State ex rel. Quintin v. Edwards, 38 Mont 250, 99 P. 940. That the framers of the section used the phrase advisedly to distinguish city and town officers from county and township officers is beyond question. They were endeavoring to comprehend in this section officers of counties, townships, precincts, cities, and towns. That they "did not intend municipal corporations to include counties is clear, for the two terms are used, as in this section, to distinguish different organizations." Hersey v. Neilson, 47 Mont. 132, 131 P. 30, Ann. Cas. 1914C, 963. It is true that for convenience the officers of clerk of the district court, county attorney, and justice of the peace are enumerated among judicial offices (article 8, §§ 18, 19, 20; ...
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