*1 Appellant, COTTINGHAM, JAMES E. Plaintiff EXAMINERS, STATE BOARD OF Defendants etc., Respond- Harvey Respondents. Sanders, Intervenor ent. 9869. No. July 15, 1958. January 13, 1958. Decided
Submitted (2d) (1) *3 R, Floyd Small, Clayton Herron, Helena, appellant. for O. Floyd orally. argued O. Small Bennett, Atty. R. Anderson, Gen., and Gordon
Forrest H. orally respondent. for Atty. argued Gen., Asst. Pew, orally for Helena, argued E.
Gene and C. Picotte intervenor.
MR. CHIEF HARRISON: JUSTICE appeal judgment of district court of
This is from the the an the judicial plaintiff action of dismissing the first district the restraining theretofore dissolving temporary order and the granted. 1951, (Laws page 781), No. 54 herein-
Initiative Measure of 54,” adopted by general to as “Initiative after referred electorate the 1950 general provided at election, payment for anof honorarium to II; Montana veterans of World War sale of provide payment; bonds to funds levy for and the such a cigarette of tax, proceeds of were to used to re- be deem pay interest constitutionality on the The bonds. of Initiative 54 was rel. established the case of State ex Gra- Examiners, 419, ham v. (2d) Board of Thirty-fifth Legislative Assembly Montana an enacted amendment passage of House Initiative Substitute (Chapter Bill No. 3 of the Laws of hereinafter re- ferred to “Chapter 44”) payment providing an hor- orarium to Montana veterans of Korean war on substan- tially the same basis War paid as veterans of World II were under $6,000,000 Initiative sale worth of bonds to provide payment; levy funds for such and the of an additional cigarette tax, proceeds excise be which were to used to pay redeem and interest on the bonds. Chapter per
Pursuant pack- collection a one cent age February excise tax was commenced on and has present authority Chapter continued On time. 44, respondent, Examiners, passed State Board a resolution authorizing on June and sale certain issuance $6,000,000 described bonds in purpose the amount of for the of providing payment funds for Korean veterans’ honorarium, bonds to redeemed with funds collected cigarette excise. July 23, 1957, appellant complaint petition
On filed injunction judicial for writ of in the district court of the first district, in alleged Chapter which the 44 is invalid cannot ever become effective in that: $100,000 liability in excess of with-
(1) It creates a debt or general at a election having out been submitted *4 XIII, of the Montana 2, section Article Con- required by as ; stitution liability having been sub- It a debt or without
(2) creates of of Montana at an taxpaying electors the State mitted to the
5' IX, Montana tbe of by 2, Article required section election Constitution; Montana Con- tbe III, of 27, Article
(3) It section violates Amendment Fourteenth 1 of the and section stitution deprives persons it States, in that of the United Constitution levying an by of law process without due property of their excessive; is cigarettes which excise tax on Montana of obligation the State (4) impairs It of April Bonds dated Compensation Veterans’ of War holders 54, in viola- Initiative of issued under Constitution; Montana 2, Article III of the tion of section in section uncertainty provides it in that (5) It void for Chapter said by section of 14-A, added to Initiative $6,000,000 bonds money arising from the sale of that the admin- expense of pay the thereby authorized shall be used to in the amendment Chapter 44, provides istration and also Montana of the Revised Codes of of section 84-5621 of Veterans’ Com- the War Chapter made section 7 pro- into which Fund No. pensation Bond Retirement levy paid, are to be tax cigarette excise ceeds of the additional inter- and the of the bonds only payment not for shall be used expenses of admin- payment of the est thereon but also for Chapter istration of 84-5621,R.C.M.
(6) It in the amendment of section provides Chapter section of said 1947, which amendment made Bond Retirement Compensation Veterans’ 44, that the War expenses payment used Fund No. shall be for thereby requiring payments out Chapter 44, administration of therefor, in viola- treasury appropriation state without of the Constitution, and, V, the Montana tion Article of section years, two held, longer term than appropriation an if XII, Montana Con- Article in violation stitution. null and void Chapter 44 be declared prayed
Appellant tempo- Montana; that the court State of and not a law au- under the issuing bonds respondents rarily restrain *5 thority of Chapter respondents and that be directed to cause why show said temporary restraining should not order permanent. be made
The court temporary restraining below issued the order prayed by for appellant granted and an order to show cause returnable August 1957. petition
On his by stipulation parties, and the court Harvey allowed intervention of of the re- Sanders behalf spondents. August 15, respondents
On generally appel- demurred lant’s complaint, argument respondents, and of counsel for appellant, duly and intervenor was heard.
Respondents’ 20, and, August ap- demurrer was sustained pellant electing plead further, judgment given was not for respondents, the dismissing prejudice court the action with dissolving and temporary restraining Appellant order. appeals now judgment from the court. of the district The presented complaint issues are set out appellant’s in the above. pertinent parts Chapter necessary of to be consid- are ered as follows:
“Whereas, began Korean war submission before the 54, adopted No. by Initiative vote of of Mon- people general at regular tana election of November permit but too late to in the provisions inclusion of said persons military during war; act service said Korean and
“Whereas, it the intent Montana to was recognize provided the honorarium in said Initiative No. rendering all residents military of Montana service on be- half emergency; of said state in the then and
“Whereas, said Korean war was of said World a recrudescence II properly War of said includable within Therefore, Initiative No. Now Assembly Legislative State of “Be in enacted Montana:
[******] be, No. 54 Initiative Section of said That “Section follows: to read as hereby amended so as and the same “ pay- for providing purpose 12. For the ‘Section compensation, pro- herein honorarium, adjusted ment of the paying expenses of administration vided for the direction and law, there shall issued sold under obligations supervision examiners, bonds of the board of limited twenty-two million dol- the State of Montana the sum of *6 in that amount as ($22,000,000.00) sum within lars or such shall dis- may necessary be for such Such bonds purposes. or tinctly are shall never be become they state that not and shall general obligation Montana, pay- a be of the State of but in the manner only proceeds cigarette able from the a tax of of provided; pledge shall of State this law contain cigarette levy Montana to and tax continue collect thereof provided place proceeds and in the this law for Fund, Compensation War Veterans’ Bond Retirement until all thereon, hereunder, accruing bonds issued and interest shall paid; been shall not more than have draw interest at rate of %) (4% annum, four semi- percent per payable and one-half * * * annually; signed by shall be the members Such bonds of of great the board of issued seal examiners and be under the Montana, a all the State of and record of such bonds issued and * * * be in the state treasurer. Pro- sold shall made office of the however, moneys issue vided, derived said first from if twenty-two ($22,000,000.00) as million bonds dollars of of provided pay all claims this Section above shall be insufficient by said with and ór allowed hereafter heretofore heretofore filed provisions original examiners under said Initia- board of of amended, pay No. 54 as all claims tive and heretofore filed amendatory act, together with the ex- and allowed under this penses amendatory act, there be administration this shall of of supervision sold the board issued and under direction and of obligation Montana limited bonds examiners the State of of of million Montana in the sum six dollars State of of of further may be sum that amount as ($6,000,000.00) within such necessary purposes. such shall be The issuance such bonds for of made in subject the same manner such bonds shall to the and be limitations, restrictions, same apply as to said original twenty-two ($22,000,000.00), issue million dollars of except that such bonds shall draw not more and one- than four per (4% %) only cent payable interest shall be out half cigarette provided amendatory tax as in this of hereinafter act.’
“Section 6. That is hereby there added to Initiative said 54No. a new section 14-A, to be Section numbered read as follows: money
“Section 14-A. The arising the sale such said from ($6,000,- additional bonds in the amount six million dollars 000.00) in amendatory above-provided may act as be sold provided as herein deposited treasury shall be in the state credit special created Initiative No. said fund Fund,’ known ‘War Compensation as the Veterans’ and the moneys now in fund, payment said hereto- all claims after with and allowed board fore filed heretofore hereafter original provisions examiners under the said Initiative 54, shall, together No. may with such additional funds derived the sale said bonds under the issue six mil- *7 ($6,000,000.00) lion by amendatory act, authorized this be used pay by (b), said honorarium granted (c), subdivisions and (d) hereof, by Section and Section said Initiative No. of of hereby 54 as amended, expenses and administration of of amendatory purpose pro- this carrying act. For the out the of hereby amendatory appropriated visions this act there is of from War Compensation Fund, ap- Veterans’ addition Initiative No. as ori- propriation said made Section of remaining moneys now in said not ginally enacted, the and fund persons the honorarium to who payment served needed for of ($6,000,- sum six million II, dollars in World War and of may necessary pay as 000.00), or much be said so thereof military persons served in honorarium to who forces n saidKorean War. be, No. 54 and “Section 7. That section 16 of said Initiative hereby the same is amended to follows: read as “ ‘Section 84-5621. [******] * * * All taxes levied, imposed and provisions (2) assessed under the said section of subdivision of shall, 84-5606 when and collected, paid be to the state treasurer special credited to a fund Veterans’ known as the War Com- pensation Fund, kept Bond Retirement which fund shall be segregated from money treasury shall, all in the and state while any of the purpose bonds hereafter issued and for sold paying honorarium, adjusted an compensation, or to the resi- dents of Montana military who were in military service in the forces of the United II, any States World War thereon, interest unpaid, remain payment be available for the thereof. “ moneys ‘All derived from such additional tax shall be paid to the state treasurer special and credited to a trust fund to be known as the War Compensation Veterans’ Re- Bond Fund, tirement kept segregated which shall be money from all state treasury shall, and any while of the bonds herein any authorized or interest unpaid, thereon remain be available solely for payment thereof.’ levied, imposed
“All taxes assessed under the (3) Subdivision said Section 84-5606 shall, when collected? paid to the state treasurer special and credited to a to- fund be known as War Compensation Veterans’ Bond Retirement 2,No. kept Fund shall be segregated all other fund money treasury in the shall, any state while the bonds- sold, tiventy-iwo issued and in addition to the million hereafter ($22,000,000.00) dollars authorized said Initiative Measure- such, originally enacted, any No. the interest bonds, additional remain unpaid, only be used payment thereof, expenses administration this act.” any provision amendatory- If contained in
“Section not; invalid, shall for reason be held such decision act shall remaining provisions of this act.” invalidate the *8 10 entering involved,
Before we into a discussion of the issues should restate problem certain applicable rules of law facing this court. First, we certain features should consider of our organic law, state’s and rules certain of construction governing interpretation organic of that law. Certain of maxims well-worn, hereinafter them so referred to are some of oft-quoted appear they as to are a funda- trite. Nevertheless part mental our legitimate of in aid- law and serve functions ing the court to at arrive the correct result. III, Montana, pro-
Article section of Constitution political vides: “All power is in and derived from vested people; government all right originates people; with the solely only, founded their instituted for the will and is good whole.” III, 2, provides power alter and
Article section this state. abolish their constitution resides in the III, states: “The this con- Article section prohibitory, mandatory by express stitution are unless they words are declared to be otherwise.” IV, provides separation powers section for the Article branches, separate legislative, into three executive judicial. Porter, this Mills regard In see v. Cunning rel. Schneider Pac. A.L.R. State ex v.
ham, 165, 168, 101 Pac. 39 Mont. initiative and referen- V, 1, provides for the
Article dum. legislative presumed, act is and this constitutionality beyond a doubt overcome reasonable must be
presumption expression legislative an will. may overturn this court before Dixon, Mills 66 Mont. rel. in State ex said As was discussion of constitu approaching a 227, 229: “In governed by we the axioma question, are the act in tionality court, law, repeated oft of constitutional tic rule prima enactment is constitutionality legislative of a facie its favor will un- intendment be made every presumed, *9 doubt. a reasonable beyond nnconstitntionality appears less its ” [Citing numerous eases.] Arps in admonition is this court’s kept Also to be mind Pac. 152, 160, 300 Commission, 90 Mont. Highway v. State 549, 553: receive must hitherto,
“As Constitution we have observed pur with interpretation a liberal consistent broad and may it adopting it, that pose of the framers and the interpretation state; proper growing serve the of a ‘the needs it that any provision requires us to remember of constitutional that only in the sense part organic organic is a not law— thing is living it sense that it a fundamental, is but also society, all the designed progressive meet the needs a amid society subject.’ a changes progressive detail to which is State 1156, 1158.” Keating, 53, 371, ex rel. Fenner 163 Pac. v. frequently It has also stated that the Mont ana been States, is Constitution,unlike the our United Constitution of prohibition upon legislative power, grant rather than a Moore, 146, 167, 477; 56 power. Hilger v. Mont. 182 Pac. State Stewart, 18, 309; ex 53 161 rel. Evans v. Mont. Pac. Butte & Mining McIntyre, 254, 730; 229 Superior Co. v. 71 Mont. Pac. Dixon, 58, ex rel. Bonner v. 59 Mont. 195 State Pac. 841. validity in- governing The rules the consideration of the validity legislative clearly ex acts were stated State rel. Leslie, (2d) 959, 962, 100 Mont. 50 Du Fresne v. Pac. 101 1329: A.L.R. validity invalidity legislative acts, considering
“In governed well-established rules. One we are validity in favor of every must be resolved doubt County Treasurer, 98, 82 Mont. 265 act. Hale v. legislative Equalization, 95 Board of Mont. 6; State Pac. O’Connell v. A 114, cited. second that while (2d) and eases 25 Pac. 91, consideration,, entitled a statute is legislative construction ex rel. Basin State Judith Coun binding the courts. it is not 352; Fargo 203 Wells 600, Mont. Pac. Co. v. Poland, 61 ty v. & 463; City 235, 169 McClintock v. 54 Mont. Harrington, 12 Falls,
Great
Ry.
Mont.
163 Pac.
Northern Pacific
Brogan,
Co. v.
Mont.
A
With these considerations in mind we enter a discussion presented of the issues in this case question presented Legislat The first is whether the ive Assembly power has the inherent to amend an initiative of the people question of Montana. The first was answered in State Stewart, 144, 151, 641, rel. Goodman 57 Mont. ex v. 187 Pac. proposed in which the court held that laws and enacted by the under initiative clause of the the amendment subject .are to the same constitutional limitations as are other may by statutes, repealed Legislature and be amended or at will. Holloway holding from a in dissented
Mr. ma- Justice in the result that decision, legis- but concurred “The jority’s plenary making power, law possesses except this state lature of by state by limited Constitution and as it is in so far * * *; this rule the land was law of not af- supreme referen- by adoption of the initiative fected the least dum amendment.” Mont. Pac.
In ex Dixon, State rel. Bonner v. 58, 82, case, supra, holding this the Goodman court followed the measure, and stated insofar as it created that an initiative liability 2 of Article debt or within the of section XIII, Legislature amended from time could be time to prin Legislature pay if the revenue determined cipal proved on retire interest the bonds insufficient them. subject pronouncement the court this most recent
may Bottomly Ford, 117 Mont. be found v. 160, 169, course, “It (2d) is, was said: well- wherein it repealed; or may established that initiative acts amended changed by legislative assembly.” power Legislature
While it is that the has the well-settled amend, change measures, is repeal, power plen- or initiative this ary only the legislation proposed insofar as does not contravene express an limitation prohibition Constitution of regard either Montana United States. See this State Stewart, ex. rel. 187 Pac. Goodman supra. court, Chapter 44, Therefore the amendment before light objections must be in the of the made. tested constitutional express prohibition, If there is no constitutional law valid, the amendment is valid. appellant,
We first contention made come now the XIII, Chapter 44 violates section Article *11 liability a Constitution, or Montana insofar as it creates debt $100,000, question of a in of submission the to excess without people. of vote the “* * ** XIII, part, provides: in Article 2 of Section singly, liability created which or shall be shall but no debt or liability, the existing exceed debt aggregate the with ($100,000) except sum thousand dollars hundred of one insurrection, unless suppress war, repel invasion of to case been submitted to the authorizing shall have the same the law people general majority at a election and shall have received a votes and against the cast for it at such election.” authority appellant
As for contention, his cites State ex rel. Highway Comm., Diederichs v. State 89 Mont. 296 Pac. Legislature law, 1033. In that passed Chapter ease the had a 1931, authorizing Highway Session Laws of the sale of State $6,000,000 Debentures in the sum of out special to be retired of a highway composed fund of revenue from tax upon an excise gasoline. the pledged Legislature sale The the law that gasoline not tax would reduce the excise until the bonds were Diederiehs, case, appellant sought redeemed. the en join grounds they the sale of the bonds on the a created or liability debt within the constitutional debt limitation of XIII, supra, section Article and therefore should have been approval. submitted to the In upholding the conten Diederiehs, tion of the court held that a the bonds created “liability” XIII, under section 2 of Article page 211, and 89 Mont. at at page we find the following liability, “It in certainly statement: creates a debt, expressly obligated cludes a for the state is not to reduce by Twenty-Second taxes on motor fixed excise fuels Legislative Assembly the tax to cause to be collected and paid prohibited by debenture holders. This is plain Constitution, approved terms people. unless special “The fact that fund is imposition a created of the license or tax excise on motor' fuels with which pay importance.” no debentures Angstman specially concurred, stating
Mr. Justice only contention that section XIII referred Article an distinguished an clearly ad valorem tax as tax excise was ground without merit. Mr. Justice Matthews on the dissented Legislature special had created a fund and therefore not liability the state. debt or has subsequently ap- Diederiehs case holding been Examiners, State Board in Graham v.
proved ex (2d) 956; State rel. 155 Pac. State Aeronautics
15 194 402, 429, Mont. Examiners, 121 Commission v. Board of (2d) 633. Pac. in given the Diederichs case were suffi-
While the reasons ciently declaring the to the court act uncon- sound warrant light apper- in the and the law stitutional Constitution sufficiently taining assuming 44 is time, Chapter at Chapter 1, 1931, comparison, similar has Laws to warrant Organic subsequent change been in the of Mon- there Law reasoning in persuade tana to this court to overthrow Diederichs case? people 2,
In 1932 Montana amended section Article inserting IX, by following qualifications per- relevant voting liability on sons debt or in an election: issues question any levy, “If the submitted concerns the creation of liability person, possessing quali- debt or in addition mentioned, taxpayer must fications above also be a name whose upon appears preceding completed roll, last in assessment question.” entitle him order to to vote such It will be remembered the Diederichs case was in decided 1931. Inc., Highway Comm., Motors, v. State 118 Mont.
In Pioneer 796, (2d) this court held 333, 338, 340, 165 Pac. that section 2, IX, XIII, amended section Article inso- effect 2, Article liability stated that a debt or in ex- provision latter far as the to “the $100,000 people.” should be submitted “The cess of 1932, qualified amendment and there- were people” any question submitted which creates a the court said after necessity liability only of have to be would submitted debt rolls. the assessment The rule appearing on those subsequently Thomas Board was followed v. ease Pioneer (2d) Pac. 207 see Examiners, 122 Mont. County, District of Cascade 129 High “C” School Habel (2d) Highway Martin v. State Com- Pac. Mont. (2d) 41. 88 Pac. mission, the assessment appearing rolls? Those areWho property, per- tax on their real been assessed have who sonal. See 84-501; R.C.M. High Habel v. School “ ” District C of County, supra, page Cascade Mont. at (2d) page at
Now this early court has held from an taxes date that are assessed, levied imposed. whereas licenses are State v. Camp Sing, 18 Pac. L.R.A. Rep. Am. St. In Camp Sing the case court held that when “assess,” the Constitution “levy,” used the words “rate,” taxes, it whereas, referred to it when used word “imposed” it referred licenses.
In Hilger Moore,
146, 168,
56 Mont.
Holloway
Mr.
speaking
Justice
for the court said: “In the
Sing
Camp
Case,
great length
the court
at
reviewed
the sev
provisions
eral
explained
of article 12,
their purpose, and reach
conclusion,
effect,
ed the
that all the
imposed
restrictions
upon
Legislature by
that article are restrictions with refer
property
ence to
We
taxation.
are asked now to overrule
decisions,
judgment
these
but
our
correctness
each
beyond question.” Approved
of them is
in State v. Silver Bow
Refining Co.,
78 Mont.
In the instant the tax case is levied “each package of cigarettes containing twenty not (20) more than cigarettes, and package when a twenty shall contain than (20) cigar- more ettes, (1)c then one twenty (20) cent for each or fraction of twenty (20) cigarettes in package.” Chapter 44, such section cigarettes 7. While the tax is levied on the themselves and is sale, the time collected at nevertheless there is no formal purview assessment made within Camp Sing case, supra. people pay appear who tax do not as- guide sessment to determine rolls—the those who vote on a liability.” “debt or people they the intent of the when
Was this enacted 2, Article IX? to section amendment effectually away would a conclusion take the voting Such actually paid who franchise from those the tax. Such manifestly unjust at and unfair. Although result is once a it will case, supra, be observed that in the Pioneer Motors court tax, had before it license factors here considered were brought never to the attention of the court at that time. There- fore, presumed it must be that the decision was not made in light of these observations.
In the instant case we are confronted awith debt retired special cigarette from a excise tax fund. The tax is collected purchaser delivery before sale and taxpayer. Chapter 44, section B.C.M. 1947, 84-5606, subd. 1. Thus the situation exists many persons where appearing on may assessment rolls nonsmokers, many while persons not appearing on the rolls are smokers. While we do deny not result perhaps legally follow, could appar- it is so ently unjust manifestly think unfair that we do not such a result was intended.
“A constitution, thereof, should receive a practical
reasonable and interpretation in accord with *14 common 16 sense.” C.J.S. Law, 14, Constitutional section pages 66, 69; See also United Wainer, States v. Pa., D. C. 49 (2d) 789; F. ex State rel. Lockhart, Jones v. 76 390, Ariz. 265 (2d) 447; Pac. McMillan v. Siemon, 36 App. (2d) Cal. 721, (2d) 98 Pac. 790; Higer Hansen, v. 45, 67 Idaho 170 (2d) Pac. 411.
All of the Constitution bearing upon the subject
same
matter are to receive appropriate attention
together.
and be construed
Hilger Moore,
v.
supra, 56 Mont.
146,
477;
182 Pac.
Martien
Porter,
v.
68
450,
219
817;
Pac.
Corry
Cooney,
State ex rel.
v.
The construction which to an justice innate sense of 2 IX, and fairness is that section of in adding Article property holding qualification voting on or debts liabili qualification ties, only confined additional those debts which look to ad valorem taxes for their liabilities retire way an ment. In this we avoid unreasonable construction and 18 just, believe, interpretation
arrive at a that and we correct XIII, section. It 2 Article logically follows that section imposed, “liability” insofar as there is a limitation “debt” or only prop- refers to those debts or liabilities which look to erty only retirement, or ad that valorem taxes their presented “peo- those debts or liabilities must first be ple,” taxpayers. now restricted to effect,
In IX, section amended the words “debt Article liability” they appear XIII, as and has section Article effectively them must be confined to debts or liabilities which retired out of In this avoid a ad valorem taxes. manner we conflict unreasonableness.
Looking case, bonds, we that the as- now to instant find they suming liability,” create a “debt or do not create type liability” XIII, pro- of “debt or which section Article scribes, since in this case retirement of bonds looks to levy taxpayer being of an excise tax without the enrolled the assessment rolls.
It apparent court in the case was not Diederichs logic developed opinion confronted with the this for the very reason that the amendment Article IX was not enacted until after the court had decided case. Had been at Diederichs the amendment enforceable do not think the at time we court would have arrived the con clusion it did. That the conclusion reached court lends judicial approval amply itself to verified State ex rel. Bldg. Connelly, Capitol Addition Commission v. 39 N. M. (2d) 1097, 878, approved City 100 A.L.R. Pac. Stone v. Hobbs, (2d) (unanimous 54 M. 220 Pac. N. City Wyo. opinion); Laramie, and see Banner (2d) *15 Legislature provided ease the had In the first above-cited con- bonds and debentures excess of the for the issuance of limitation, payable special out of fund created a stitutional debt every in the upon filing the civil action imposed a fee the district courts. state clerks of various office of the until pledged the fees so collected to fund the bonds were retired. The court held that “in the completely fee was 312,M. (2d) nature of an excise” tax. N. [39 1103.] obligation Contention was made that the act created a debt or express provision. of the state in contravention of constitutional provision (Constitution question The constitutional Mexico, 8) provided New Article that no debt should part $200,000 be contracted on the of the state in excess of question without qualified submission to a vote of the Although voters of the state. the constitutional limitation re- distinguished ferred to liability” “debt” from “debt or Constitution, found in our important distinction is not question type since the sole to be determined is the of debt or liability Thus, proscribed. whether the limitation be confined to liability” “debt” be broadened to “debt or is not ma- terial. holding
In the act did not contravene the pro- constitutional court, Capitol Bldg. vision the Addition Commission ease, reviewed debt limitation of their Consti- tution, pages and 39 N. M. 319-320-321-322, (2d) on 46 Pac. page “Significantly, by said: Constitutional Amend- ment No. submitted as Senate Joint Resolution No. 7 Regular (Laws 1933, Eleventh Session in 1933 page 538), and subsequently adopted, ownership of real estate in the district qualification was added as a right to ques- vote * * * creating tion proposed. debt “Certainly, framers when Constitution in section 8 lim- they had ited amount of such debt as in mind to per property subject the assessed valuation of all centum of state, shown preceding general in the ‘as taxation they assessment,’ enjoined in sections 10 and 12 pay- or when during year property preceding tax as a ment of condi- vote, they must right tion of the have conceived that said relationship thought the debt. assessment bore some Could this, than that such assessment roll and the have been other year year to from there listed would be resorted property *16 by general taxing tbe power as the repay- source of funds for ment of the debt so think not, but, so, created? We if ex- no * * * planation naturally so as suggested. arises the one
“Now, either the debentures here assailed are to be con- repayable proceeds demned because not prop- a erty tax levy, they or are not within the interdiction of article 9, 8, section because not contemplated. the kind of debt therein One or the other inescapable. conclusion seems framers unacquainted the Constitution were not with the excise taxation a revenue, as source of as language witness the of article sec- originally adopted. tion as They thus either purposely denied state, through Legislature, power employ its same as a basis credit whatsoever, extent deliberately imposed the whole of repaying burden such indebtedness as lawfully might upon be property taxpayers; created they Legislature possession left in plenary powers of its touch- subject. ing the employed not
“It unusual to find words in a Constitution comprehensive they capable bearing. in a less sense than are surely enough ‘Taxes’ a term broad to cover excise as well property yet as And taxes. we have held accordance with ‘taxes,’ the courts of other states the word as used guaranty equality uniformity, constitutional does not apply Taylor to excise taxes. State ex rel. Mirabal, 33 N. M. 928, 62 together 273 Pac. A.L.R. 296. Construing these companion sections of article in order to arrive at the true intent meaning and of the framers of the [Citing Constitution contemplated cases.], we hold debt in section 8 thereof is * * * by property tax, a and not one secured an excise tax. argue respondent that the 1921 amendment of “Counsel Graham State v. N. M. 16 of article involved [32 legislative interpretation, a 623], constitutes en- 485, 259 Pac. a amendment weight, constitutional was neces- titled to so, there assailed. Even authorize the debentures such sary persuasiveness controlling only should have interpretation meaning construction, a condition doubtful not case of Regular present. here The submission the Eleventh Session adding of the Amendment to section of article the own- ership estate a of real within school district as a condition right proposed a to vote creation of debt such district, might argued with almost the same force reflect- ing Legislature the view of that that the debt so to be created repayable by property was tax affecting to be the owners of real estate.” *17 language Capitol
The above utilized in the Bldg. Addition amply proposition Commission case illustrates the promulgated by this court.
Many reached the courts have conclusion at this arrived property holding qualifications court without the benefit of prerequisite voting on the regard a debt. In this see 35 Commission, (2d) Gruen v. State Tax Wash. 1, 211 Pac. (2d) 651-679; Roddey Byrnes, ex 485, State rel. v. 219 S. C. (2d) 33; 66 E. ex Fatzer S. State rel. v. Board Regents, (2d) 373; 587, Boynton 167 Kan. 207 Pac. State ex rel. v. Kan Highway Commission, sas 913, 917-918, State 138 Kan. 28 Pac. (2d) 770; Jur., States, Territories, 49 Am. Dependencies, 67, page 280; 100 900, section Annotation A.L.R. holding that the debt limitation refers to debts those which look to ad val- extinction, orem taxes for their rather than license or excise many jurisdictions taxes. There are also cases and which have expressly apply holdings refused to of the above cases to In provisions. regard their constitutional debt see State Kemp Liquidation Dept., ex rel. v. Board of of State 214 La. 890, (2d) 333, 336; Taxpayers 39 So. and Citizens of Town Georgiana Georgiana, 654, 265 (2d) v. Town Ala. 93 So. 493; Lyons Bottolfsen, 281, 61 Idaho (2d) v. Pac. Peo ple City Chicago Barrett, ex rel. v. 373 Ill. 26 N. E. State, (2d) 478; 181 Okl. (2d) 940; Boswell v. (2d) Appeal, 32, 36; Hamilton’s 340 Pa. 16 A. Foss, Boe v. However, (2d) 1, D. 77 N. W. it S. should be noted jurisdictions property that none of above have assessment prerequisite voting liability as a on the debt or created, to be the reasoning apply
and therefore eases does not here. those clearly In addition the provision Illinois for a debt limitation payable was intended from possibility to include the of debts (Illinois 18, S.H.A.), Constitution, excise taxes Article section tax) payable levy (property for it includes debts a tax payable from “other Peo- those sources of revenue.” See ple City Barrett, supra. The Chicago ex rel. v. court State, supra, emphasized Boswell v. that their con- also the fact thus, by im- stitutional debt limitation to “revenues” referred plication Foss, including all sources revenue. See Boe supra.
For the reason that the of the states constitutional holding materially contrary to the rule are differ- New Mexico ent, precedent we are constrained to and the reason- follow the ing Capitol Bldg. case, supra. in the Addition Commission validity Chap- argument against
Appellant’s second presented qualified elector- that it has not been ter IX. Article ate as demanded require IX does not of Article It will be noted that section liability peo- submitted to the of a debt or be question that a liability involving a debt or ple, rather, question but if only it presented then must submitted to *18 electorate, appearing the assessment rolls. those qualified Commission, supra, 118 Inc., Highway Motors, v. State Pioneer 796; Thomas Board of Examin- (2d) 165 v. Pac. (2d) 553. the 564, 207 Pac. Therefore 122 Mont. ers, supra, question must be is whether the sub- question to determine first provi- constitutional particular under the people the mitted to case, propriety legis- instant In the question. sion in by tested is section submission lation without Aj’tivle question given has been The answer to the XIII. and needs further discus- opinion no foregoing part of this a Chapter 44 was not debt held that have sion. Since we this XIII, Article contention by liability proscribed merit. is without by objection appellants raised is
The third constitutional-
23 with property their Chapter deprives persons 44 state and federal meaning of process out due of law within the provisions. constitutional appellant was also raised argument by
The raised same this regard regard with thereto court with to Initiative and practice merit. The wholly said: “This contention is without levying tax is so well established an excise tobacco it ex rel. longer open question.” is State Graham no supra, (2d) 239 Examiners, Board of 125 Mont. 283, 291. regard arguments by appellant made with process” eloquent
“due issue are but futile. arguments made would attempt An to discuss each of the questions nothing opinion lend to this because the raised have finality jurisdictions. been in this other settled with argument Chapter impairs The fourth made is that obligation contractual of the State of Montana to hold under 54 in of section ers of bonds issued Initiative violation III, 11, Article of the Montana Constitution. (1) That argument
The basis twofold: the increased Chap- tax cigarette enacted to fund the bonds issued under price cigarettes, result resulting ter increased on will cigarettes sold, “drying up” being in less therefore the source originally provided payment for the the bonds of revenue That (2) under the bonds issued under issued Initiative loan in the amount Chapter provide for interest on the whereas, provided Initiative percent interest 4% less only per cent, making thus the latter bonds desir- was thereby depress market for them and able, tends to which pledge reduce their cash value. purely speculative made are na-
Both of the contentions particulars out pointed has not appellant ture, impaired, Initiative are if created obligations which impaired.
(cid:127) agreement, elements: analyzable two into A contract obligation parties, which comes comes
24 agreement
from the law and makes the binding parties. on the obligations impaired? When are the of a contract Jus- Chief Hughes, Building Ass’n., Blaisdell, tice in Home & Loan v. 398, 431, 231, 237, 54 S. L. Ed. A.L.R.
U.S. Ct. states: obligations impaired by “The of a are a law which contract * # # invalid, extinguishes releases or them
renders them * * * predicated impairment has been of laws which with destroying derogate from substantial contractual out contracts rights.” commenting Blaisdell said: Black,
Mr. on the decision Justice represented appreciation “The Blaisdell decision realistic society gen- that evolving that is an the fact ours clause were not intended to reduce eral words of contract helpless impotency.” legislative government branch of L. Ed. 61 S. Lovett, 313 U.S. Ct. Wood by Initiative 54 obligation imposed instant In the case the cigarettes to continue the tax on obliged the State of Montana from provided, deposit and to the revenue the amount Chapter 44 alter special tax in a fund to retire the bonds. Did obligation remains in Obviously not; obligations? these it was en- exactly the manner force and effect the revenue of the state portion acted. The fact some govern- retiring prevent bonds does not the state up tied the same source seeking new revenue from ment result, it imposed. If such were the former tax was which the “helpless im- taxing power the state to reduce the would ’’ potency. As to the interest rate. was applied logic can be same The any materi- “If there were respondent: by stated aptly so increase the State could never allegation an ality to such existing rate above the lowest obligations its interest on rate of fact the bonds obligations.” outstanding its are funded subject matter and the same are issued *20 legal ef- that one same tax does not alter the fact source fect does not affect the other. rights impaired. agreement
Nor has the been No substantial by Chapter of 44. Under derogated the bondholders have been to maintain agreement by Initiative 54 there no the State was obligate it cigarette level, nor did the entire tax at its then per- 4 at a mere any subsequent itself to issue bonds date agreement part of the cent interest rate. If these were not Obviously, they not. For they impaired? how could could be is these fourth contention without reasons we find merit. appellant
The last of have hereinbefore been contentions ambiguities exist set out and deal with certain in the 6 and 7 act. Of course the conflict between sections n of 44, ex Chapter relating payment of administrative to the penses patent, however, pledged is this court to reconcile (cid:127)conflicting statutory provisions operative them in ac and make intent, possible it to do legislative cordance with insofar as Naegele, 129, Paige, iso. In 70 224 Fletcher v. re Mont. Pac. 124 (2d) 484, (2d) 220 19 A.L.R. 1108. money provided
In 54 raised from Initiative the law purpose of sale the bonds would used “For of be honorarium, adjusted com providing payment for the of the expenses pensation, provided paying the herein for and for of * * Emphasis supplied. Sec administration this law of tion Initiative 54. provision orig- of the Chapter
Section retained this Chapter inal 44 also directs that Initiative Section expenses proceeds paid shall be from the of the administrative sale of the bonds. is self-evident that act it portions of the foregoing
From the provide intended amending Initiative Legislature, pro- act from the payment for administration 84-5621 However, amending section sale. ceeds of the Legislature provided: Chapter under the levied, imposed and assessed “All taxes collected,, shall, (3) Subdivision when of said Section 84-5606 fund paid special to the state treasurer and credited to to be Bond Retire- Compensation known as the "War Veterans’ ment kept segregated Fund No. which fund shall be any all money shall, other in the of" treasury and while state twenty- the bonds hereafter sold, issued and addition two million Initia- ($22,000,000.00) dollars authorized said in- originally enacted, tive No. of the Measure only bonds, terest unpaid, such additional remain be used payment expenses thereof, administration and of (Emphasis this act.” supplied.) It latter-quoted provision is obvious this was a mere over- sight part on the Legislature, governing- that their *21 intent, gleaned foregoing parts from is that of the act the administrative paid costs should be from the fund created proceeds interpre- of the this sale of bonds. Given severability tation there is ambiguity. no conflict or Under the (section 1.1, 44), clause of act Chapter this court is author- ized to expenses strike “and of administration” avoid illegality.
Appellant Chapter 44, 7 insofar maintains section proceeds cigarette as it attempts appropriate license- period tax years, for a than is unconstitutional as more two conflicting 12 with section of Article XII of the Montana Con- provides part: appropriation pub- stitution which “No moneys years”, lic a longer shall be made for term than two 34, and with V, provides part: section Article “No money paid treasury upon shall be except appropri- out of the * * * ations ”. made law
Appellant 6, Chapter 44, admits that under section there 34, V,
would be no violation of section Article sec 12, tion Article XII. agree. With this we See ex State rel. Graham v. Board Examiners, supra, 419, 435, 125 Mont. 436, 239 (2d) 283, Pac. therein; and cases cited State ex rel. Cooney, Normile v. 100 (2d) State Pac. Education, ex 97 Mont. rel. Blume v. State Board of (2d) 34 Pac. Chapter 44, reveals
Since we have held that section sec- governing portion Legislature, intent of the then seeming- 7, Chapter tion 84-5621, and section R.C.M. ly contrary express that inten- should be read as to so tion.
Putting the set out construction the act heretofore clearly attempting consequences avoids which follow appropriation to make an more from the “General Fund” for years. “special than two fund” and The fund created is a XII, V, neither of Article nor section of Article any application. have We believe this the correct construc- Chapter tion of 44—a not emasculate construction which will Legislature, the intent of the but effectuate it.
For judgment in this opinion reasons set out trial court is affirmed.
MR. ANGSTMAN, JUSTICES THE CASTLES and HONORABLE BLACK, Judge, sitting place W. M. District of MR. JUSTICE BOTTOMLY, concur.
MR. ADAIR (dissenting). JUSTICE Examiners, 125 Mont.
In ex rel Graham v. Board of State authorizing (2d) 283, that an court held act pur- veterans’ issuance of bonds for that honorarium pose payable cigarette public purpose tax serves a from a attempt compensate veterans for their partially is valid as an *22 by meas- particular compensated sacrifices. The veterans had served the United ure there considered were those who by participa- their Montana States of America and the State of Subsequent in as World War II. tion that conflict known II, the United States in World War cessation of hostilities conflict, again and once in another overseas became involved participants that con- furnished for State of Montana has made sacrifices for and have flict who served therein who they compensated. which should
In case, supra, authorizing the Graham the legislation initiative, honorarium was an Initiative Measure No. Laws directly to, passed by people submitted voted and passed by the entire state. The measure so the direct vote of the which authorized the honorarium for the veterans War II World did not the veterans of the more cover recent Korean conflict.
In an endeavor to amend Initiative Measure Laws No. 1951, page 781, provide compensation so as to for veterans conflict, of the Korean Thirty-fifth Legislative As- State sembly, 1957, sought in to amend Measure No. Initiative supra, by introducing Legislature passing a bill Chapter became of the Montana Session Laws of 1957. By such Legislature provide amendment the seeks to payment of an honorarium to the veterans of Korean conflict substantially paid on the same basis as that to the vet- erans of War II through World the enactment of Initiative 54, supra, by provide Measure No. such amendment for the issuance and sale of additional bonds the amount of $6,000,000 $22,000,000 originally over and above the amount of provided for in Initiative No. 54 further pro- Measure and to levy vide for the of an tax cigarettes additional one cent over and cigarettes originally provid- above the two cent tax on ed for Initiative Measure No. 54.
By authority purporting granted virtue to have been Thirty-fifth Legislative Assembly in its enactment of Chapter Laws of the state board examiners com- proceedings carry Chapter effect, menced said into where- upon, complaint filed the district court for Lewis and County, plaintiff, Cottingham, sought Clark E. here James enjoin proceeding. the board of examiners from so injunc- refusing to issue an made an order The district court that order. appeal by plaintiff tion this is an assigned speci- some six appellant Cottingham appeal On opinion the determination of my error. In correct fications of appeal. decisive of the specifications would be but one of such *23 only stated, 1957, As seeks Chapter before Laws of No. Chapter 44, supra, provides amend Initiative Measure larger for an honorarium for a number and different class of It veterans. levies an tax it an in- additional and authorizes liability crease of in the further and amount of additional $6,000,000. It provision makes submission no whatever for acceptance their people measure to the vote for rejection. or passage by Legislature signing by Its and governor was deemed final. appellant’s
It provide contention the omission to for the (Chapter 1957), submission law Laws people the vote invalidates the act for the reason that liability the act creates a $100,000 debt or in excess of with- being out the issue people required by submitted to the as sec- XIII, Constitution, tion Article of the Montana pro- vides: legislative
“The assembly any any shall not in manner create except by debt law irrepealable which shall be until the indebt- provided fully edness therein shall paid for have been or dis- charged; purpose such law shall specify the which the funds so applied provide levy raised shall be and for the lax aof pay sufficient to on, the interest extinguish principal and of such debt within the time limited law pay- such for the thereof; liability ment bid no debt shall be created which singly, or shall aggregate existing with debt or lia- bility, exceed ($100,- the sum one hundred thousand dollars 000) except war, in case to repel suppress invasion or insur- rection, authorizing unless the law the same shall have been sub- people mitted to the general at a election and shall have received majority against votes it cast at such election (Emphasis supplied.) specific question presented is: here In view of the above
The may Legislative provision in our State the State Constitution Assembly No. lawfully Initiative Measure amend Laws amount liability of the debt page wherein $6,000,000 some passed by voted raised six million dol- submitting first such amendment without lar people? raise to a vote of the High- 1931, the State presented is not new. In question provided The Act way passed. Treasury Anticipation Act was *24 principal pay the fuel to be used to for an excise tax on motor sold authorized to be debentures highway and interest on state by the passage the Act $6,000,000. After of in the amount of by governor the signing thereof Legislative Assembly and the brought significant date, Diederichs January a one on selling the debentures. enjoin or of proceeding a the issuance to February 9, 1931, this court The action was submitted to 21, 1931. February opinion herein was rendered the Mont. Commission, 89 Highway ex rel. Diederichs v. State State 205, 296 Pac. case, supra, was Diederichs principal contention the the question, violated Legislature, the there Act of the creating debt or lia- by a State of Montana
Constitution of the to submitting the measure $100,000 without bility in excess of of section by required as is the a vote of the There, here, the XIII, our State Constitution. 2, Article of rules of law cognizance of the required to take full court was constitutionality legisla- aof question a of the applicable when presented there was argument primary raised. The tive act is within the constitutional liability a was not created debt or been indebtedness had repay to the special a fund bar because the and held rejected such contention this court created. There it sub- was not because as violative of the Constitution law void in the Diederichs By the decision people. reason of mitted to the holding dis- necessary out the court’s ease, I it to set believe XIII, wherein 2, Article cussing application of section court said:
“* * * to run tendency governments Knowing the faith and thereby to affect liabilities, debt, to incur finance, imposing thus addi- in matters of state credit of the the framers of taxpaying public, upon tional burdens power upon limitations positive placed Constitution liability upon Legislative impose to Assembly incur a debt a beyond referring prescribed, tbe state the limit without * * * proposition approval. electorate its funds, obligation, payable “The creation of an from these liability is a state; large part its a effect is to divert the revenues highway state fund for a into the state period of ten years, might pay otherwise be used public debt defray expenses govern- general ment, relieving thus the heavy burden of taxes levied property. If process designed chapter not does create liability, state the Legislature undoubtedly then could do thing taxes, taxes, the same with other license the inheritance and the net proceeds properly all taxes, mines of which are determining considered in expenditures the limitation appropriations under section of our Constitu- of article (State tion ex Toomey Examiners, rel. Board supra State 316], accomplish and thus indirection [74 what the prohibits directly. Constitution done *25 people “The gravely pur- are as concerned to how and the poses for money spent. They may which their is eagerly desire proposed to sell the debentures, thereby matching the sums provided by generous a Congress, may end that our state be good delay; afforded roads' without but measure another pledging large excise in special purpose taxes for amounts some might encounter their disapproval. definite examples demonstrate,
“The any needed, if demonstration salutary purpose the provision of the constitutional here under * * * consideration. upshot in order it must re- “The is that to validate act approval ceive the electorate.” Angstman specially concurring opinion in his said:
Justice opinion supporting “The reasons stated the court’s payment fund special that of the for the conclusion the creation creating prevent the act from a lia- of the debentures does not for a bility my why provision special fund does are reasons provided creating save the a debt. The scheme not act a loan public payment by chapter 1 diverts revenues to if full faith and credit effectually by the state as the debentures. payment actually pledged were state 2, ar- purview within the fact that it creates a debt make the law justification attempting to 13, is the for ticle by learned was said irrepealable. tax Much imposing the excise arguments to the oral respondents in the brief and counsel for ‘levy use the words Article in the effect that section ’ so, then this tax. If this were tax, only means an ad valorem a a vote of would with section act is conflict interpretation placed be useless. If that correct construction, con- section, by would 2, then that upon section shall not create Legislature: ‘You tain this command to the levy for the of an you provide manner unless a debt in and interest pay principal tax sufficient ad valorem tax Confessedly ad valorem has provided.’ time no within the 2 would make it read of section been levied. That construction * * * re- substantially as Iowa Constitution annual tax.’ Under such a of a direct quires ‘the collection Legisla- Supreme has held that provision Court the Iowa power authority mortgaging a over to exercise ture was without ex taxes. State rel. gasoline and motor vehicle license future Council, 923, 223 207 Iowa N.W. Fletcher v. Executive tax,’ ‘levy as used however, opinion, the words my “In Legislature when creat- only that the contemplate in section pay revenues to raising sufficient provide for ing a debt shall meth- the constitutional interest either of principal it includes purposes, and public raising revenues ods of (Em- here.” tax, as or excise levy imposition a license phasis supplied.) of Montana of the State the law February
Thus on liability excess of a debt or the creation required *26 of the validity upon the outcome $100,000 depended for its May Legis- changed? this law been people. Has vote of the $22,000,000 amend a people of the today without vote lature that it is increased so approved which the bond issue of to and $28,000,000 becomes a issue? Article bond Section XIII, today precisely reads in 1931. as it read This section of our changed Constitution has not been It or amended. follows amendatory act, Chapter 44, 1957, attempting Laws of liability $100,000 create a of the state in excess of without submitting question presents people, the identical question long by ease, since decided this court in the Diederichs supra.
In the instant urged case it is the Diederichs no case longer controls a situation presented such as is here because in 1932 the pro- Constitution was inserting amended a new vision in section IX pro- Article of the Constitution which vides: the-question “If any submitted concerns the creation of levy, liability person, debt or possessing in addition to qualifications mentioned, taxpayer above must also be a whose name appears upon preceding completed the last roll, assessment in order to entitle him question.” to vote such
While change the above qualifica- clarified defined tions persons question entitled to vote on a which con- cerns the any levy, creation liability, yet debt it did not change amend or meaning liability” of the words “debt or as used in IX Article of the Constitution so as to make the section read liability “debt or founded on an ad valorem tax” as is majority opinion stated herein. case, supra, Diederichs held that “tax” word as
used in XIII, section Article provided was tax for Constitution, either a property license or excise tax or a tax. The tax involved in the instant an case is excise tax. It is not a license.
In ex rel. State Aeronautics Commission v. State Board of Examiners, (2d) 633, 636, 121 Mont. 194 Pac. this court Attorney rel. quoted approval with from State ex General v. Constructors, Wisconsin Wis. 268 N.W.
follows: “ imposed purpose general ‘Taxes are revenue. ordinarily imposed other are Licenses and fees cover the cost *27 of supervision regulating. [Citing or The distinction cases.] police powers a is imposition between tax and an under the Ed.), well Cooley (4th pages stated in Taxation on 3528: ‘“ money under the “The distinction between a demand of police power power to tax is not so and one made under the may proceedings much one as The be of form of substance. essentially cases, though purpose the in is same the two the regulation different. one and the other The is made for regulation imposition ordinarily purpose revenue. If the is the is police power, purpose is an while if the rev- exercise of imposition taxing power enue the is and is an exercise of in- If, therefore, any particular tax. purpose is evident stance, difficulty classifying there be the case and can no ’ ” * * *” referring proper power. it to the imposed nothing tax
The here has whatever do with simply is regulation any thing person. purpose or Its and solely cigarettes. It is a to raise revenue. It is an excise tax on property. Although “imposed” tax used alone on the word is Laws of 1951 at Measure No. Initiative 787-789, imposition 3 of sec- pages the actual subdivision 84-5606, amended, pertinent part tion R.C.M. provides: whereof (3). effective date of From and after the
“Subdivision — Assembly amendatory Thirty-fifth Legislative act of the levied, Montana, hereby imposed State of there is paid assessed, to the State and there shall be collected state, cigarettes Montana, upon possessed sold in this * * following (Emphasis supplied.) tax excise *.” It is not a li- property. on imposed is an excise tax The tax of a tax levy assessment This law looks cense tax. persons names of on retirement. The for its property on property personal either persons paying rolls are assessment Why should these then taxes, or both. property real taxes or right to them the State Con- given denied taxpayers liability, debt or creation of pass upon stitution to singly, aggregate any existing “which shall or in debt with liability, exceed the sum of dollars one- hundred thousand ” ($100,000) liability when such debt and be retired an additional tax property. majority opinion poses proposition herein also
from the amendment to section of Article IX of Consti- tution changed by limiting was also an and amended elector taxpayer to a appears upon preceding “whose name the last completed roll,” assessment XIII and that section of Article *28 of the Constitution by providing was further amended that the debts or liabilities be voted must be debts or liabilities which look to ad valorem taxes for their retirement.
I am unable theory to subscribe to the thus advanced. The majority opinion implies therein that the constitutional amend- ment of 1932 holding was enacted in to overcome this court’s case, the supra. Diederichs purpose Such was neither the nor intent of the amendment. an The intent of amendment to the Constitution like Legislature the intent of an act the must be determined as of the date or time of its introduction. The constitutional 2 amendment to section of Article IX intro- was duced in January 1931, whereas, the house on the Dieder- ichs case was supreme not submitted court until Febru- ary 9, 1931, it February 21, and there was decided on 1931. Now the Legislature question act of the in in the Diederichs passed case was not until January 26, hence it becomes most difficult to believe that the amendment to section IX proposed January 13, 1931, Article of the Constitution was with thought in mind particular act should be if passed, supreme and court should thereafter hold the if void, then, event, act and in that there would be the constitu- amendment, which, future, tional in the would cure such defect supreme might find court in the act at some future time when the Diederichs this case should be submitted to court for decision. on section Article XIII of the
The effect above amend- ment to the has been considered later Constitution eases con- Martin State urged. here See cerning question this same (2d) Highway Commission, 88 Pac. Commission, 118 Mont. Motors, Highway Inc., Pioneer v. State validity elec In (2d) upholding the amend implied necessity tions the their view court even expected pass upon ment, not be court should to be validity oi; should be deemed an election if such election . wholly unnecessary proposition I am Likewise unable to subscribe to interpreted must here involved be of the Constitution many provisions “fair.” There are light in the of what is violently “fairness” would be contested the Constitution whose respective on their upheld by depending some and others The constitutional varying points interests and of view. mandatory question of and the provision question here in for either con- before this court its fairness or unfairness not sideration or determination. man- see that the constitutional plain duty is to
This court’s state Legislature. The revenues obeyed by the date has been property specific by taxes such as principally must obtained Prop- license taxes. taxes or excise or taxes, property ad valorem weight these taxes. It is greatest erty presently bears Bearing this mind all taxes. unavoidable most *29 Mon- State of the the and our Constitution framers of legislative power to create debts upon the a brake put tana have retirement, because for their pledge taxes and and liabilities provided are here into funds such as money segregated be if the other imposed upon is the revenue general the then the burden the extreme here sanc- finally, if and carried tax sources stage where reach may when we tioned, the time come then only being source taxes property valorem with ad we end Surely, persons state. general fund of the of revenue have as keen taxation subject to ad valorem owning property nontaxpayers. as have government in the functions interest in- nontaxpayers. The than more at stake they have Certainly, it is how to be irrespective of obligation, any state currence vitally financed, fin- taxpayers concerns such whose roots are ally planted through property ownership. in this state their responsible These taxpaying this state should have citizens of the opportunity by right given to exercise to them the Con- pass creating stitution upon to vote and these measures debts and liabilities far in excess of the one hundred thousand dollar by limit set the Constitution.
The it majority opinion mischief inherent in the is that leaves the ad taxpayer valorem defenseless to exercise control over liabilities, yet places creation of debt and principal burden of such debts and him. liabilities is yet question major-
There
another
left unanswered
ity opinion
quite
herein.
is
It
clear that the 1932 amendment
designed
proposed
Constitution
nor
was never
with the
purpose
thought
abrogating
mind of
the result of the
case,
Diederieh
supra.
purpose
The
was
view
to narrow
class of
liability
voters on
questions
debt or
those voters
primarily
naturally
questions.
interested in such
holding in the
against
Diederichs
argument
case was
contention that the
a
“levy
words
tax” meant an ad valorem
my opinion
tax. In
Legislature
the act of the
under
here
con-
governed
sideration is
rulings
controlled
this
court’s
supra,
Diederichs case. As
ease,
said in
Diederichs
Mont.
“Nor is it concern of court whether the act is ex- wise, pedient, Dixon, ex rel. Bonner unwise. State It legislative power, policy, not that is mindful question. presump- drawn in And while are we acts, yet, being legislative support, tions in favor bound protect, Constitution, an and defend when enactment trans- beyond doubt, gresses limitations reasonable the constitutional duty our and sworn to so declare it. are mind- it solemn We ful, placed too, that the declaration of Constitutions are therein away by obeyed, and are not to be frittered construction. City Butte, Less v. 28 Mont. 72 Pac. L.R.A. duty respect Rep. 545. Our remains
98 Am. St. *30 money same to obtain urgent may no matter how be the desire highway carry program with of on the much-needed Taney jurist, construction. As stated that able Chief Justice Court, famous Dred Scott Supreme the United States in the decision (Scott Sandford, How. 15 Ed. L. [691] 692): change public policy can public opinion questions ‘No given construing of a Con- any weight provisions ever be clear, meaning adoption stitution a Con- where the for might time unwise at stitution that at one deemed wise judicial court and abrogate another would character ’ day. opinion passion make it the reflex of the popular of the or lia- If the act in of a debt question authorizes the creation bility $100,000 are available methods excess of there two accomplishing one is to amend the Con- proposes: what the act stitution, and the other is obtain the consent purpose.” at an election my opinion Legislature In here under con- act of the by this decision governed sideration is court’s and controlled agree with the in the case. I am therefore unable to Diederichs mandatory interpretation the above and construction accorded majority by the prohibitory provision of the Constitution opinion in the opinion I hold herein. would this court’s that the appeal act Diederichs ease is determinative of this wholly fails question is in that it violative of the Constitution people on the provide the vote of the for the submission to liability plainly question of debt and the creation of the provided required by for in and XIII Montana. Article of the Constitution ma- agree with the foregoing I am unable In view of jority opinion herein.