Lee v. StateLee v. State
- Reporters:
- , ,
- Before:
- Sheehy
delivered the opinion of the Court.
Plaintiff Gary Lee filed in the District Court, Eighth Judicial District, Cascade County, his complaint seeking declaratory judgment that
The full text of
“Declaration of speed limits — exception to the basic rule. The attorney general shall declare by proclamation filed with the secretary of state a speed limit for all motor vehicles on all public streets and highways in the state whenever the establishment of such a speed limit by the state is required by federal law as a condition to the state’s continuing eligibility to receive funds authorized by the Federal Aid Highway Act of 1973 and all acts amendatory thereto or any other federal statute. The speed limit may not be less than that required by federal law, and the attorney general shall by further proclamation change the speed limit adopted pursuant to this section to comply with federal law. Any proclamation issued pursuant to this- section becomes effective at midnight of the day upon which it is filed with the secretary of state. A speed limit imposed pursuant to this section is an exception to the requirements of 61-8-303 and 61-8-312, and a speed in excess of the speed limit established pursuant to this section is unlawful notwithstanding any provision of 61-8-303 and 61-8-312.”
The foregoing statute was enacted by the legislature as a part of Ch. 60, Laws of Montana (1974), where it was denominated section 32-2144.1, R.C.M. 1947. The statute became
The statute was enacted by the legislature in 1974, in response to the Emergency Highway Energy Conservation Act (Emergency Act) (Pub.L. No. 93-239). In effect, this federal act provided that no federal highway funds should go to any state failing to enact a 55 mile per hour maximum speed limit on its highways.
In section 2(e) of the Emergency Act, Congress provided that:
“This section shall cease to be in effect (1) on and after the date on which the President declares that there is not a fuel shortage requiring the application of this Act, or (2) on and after June 30, 1975, whichever date first occurs.”
The provisions of Ch. 60, Laws of Montana (1974), granting the attorney general the power to proclaim a speed limit, became effective March 2,1974. On that date, the Montana attorney general issued a proclamation “that the maximum speed limit day and night, for all motor vehicles on all public streets and highways in the state of Montana is fifty-five (55) miles per hour, effective midnight, March 2, 1974.”
Before the expiration of the Emergency Act, Congress adopted and the President of the United States approved on January 4, 1975, the “Federal-Aid Highway Amendments of 1974,”
There have been subsequent changes in the federal laws respecting the entitlement of states to federal funds for state highway purposes. The most recent change in Pub. L. No. 97-35, enacted in August 1981. It is enough to say here that as of the time
Since March 2,1974, no proclamation respecting a maximum speed limit has been issued by any Montana attorney general.
The parties have argued pro and con as to the effect of that lack of further proclamation in the light of the repeal of the original speed limit provisions in the Emergency Act. It makes no difference to our decision whether the proclamation of March 2, 1974, became void after the repeal of the original federal law, or whether the attorney general should have issued a new proclamation. We view the provisions of
Lee argues on appeal that
We look first to whether Gary Lee has standing to bring this action. In his complaint, he alleges that he is a resident of Fort Shaw, Cascade County, Montana; that he frequently drives a motor vehicle on the highways of this state, particularly Montana State Highway No. 200 and Interstate Highway No. 15 between Fort Shaw and Great Falls, Montana; that the attorney general has issued the proclamation to which we have adverted; that except for such proclamation, he-would be entitled to drive a motor vehicle under the provisions of
The state filed a motion to dismiss the complaint, raising the standing of the plaintiff to sue in the action. The District Court denied this motion, and did not treat the subject of plaintiffs standing in its. subsequent orders or judgments. The state did not cross-appeal, but we examine the issue of standing in any event under Rule 14, M.R. App. Civ. P.
Lee’s complaint is for declaratory judgment. It is brought under the Uniform Declaratory Judgment Act. Section 27-8-101, et seq., MCA. That act provides, in
“Any person . . . whose rights, status, or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute ... and obtain a declaration of rights, status, or other legal relations thereunder.”
The stated purpose of the Uniform Declaratory Judgment Act is remedial.
The test of whether a justiciable controversy exists is set forth in Matter of Secret Grand Jury Inquiry (1976), 170 Mont. 354, 357, 553 P.2d 987, 990. There this Court said.
“First, a justiciable controversy requires that parties have existing and genuine, as distinguished from theoretical, rights or interest. Second, the controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument invoking a purely political, administrative, philosophical or academic conclusion.Third, must be a controversy the judicial determination of which will have the effect of a final judgment in law or decree in equity upon the rights, status or legal relationships of one or more of the real parties in interest, or lacking these qualities be of such overriding public moment as to constitute the legal equivalent of all of them.”
It is readily seen that Lee’s complaint and attack on the constitutionality of the statute fit all three of the tests. Those tests are supported by a substantial number of cases decided in Montana, all set forth in Secret Grand Jury Inquiry, supra.
In arguing that Lee has no standing to sue in this case, the state relies chiefly upon Chovanak v. Matthews (1948), 120 Mont. 520, 188 P.2d 582. In that case Chovanak attacked a 1945 Montana statute providing for the licensing of slot machines owned and operated by religious, fraternal charitable, or nonprofit organizations. He sued as a resident, citizen and elector. This Court pointed out that he was suing against gambling in general, and said that it appeared from his complaint that slot machines, licensed or unlicensed, were utterly anathema to him. This Court found no controversy between him and the defendants in that case.
On the other hand, Gary Lee is directly affected by the operation of the statute he attacks in this case. His right or privilege to drive a motor vehicle by the basic rule of safety under
We should also note other conflicts with
Since 1974, no attempt has been made by the legislature to clarify these conflicts. The other statutes were enacted after due legislative consideration. Yet the provisions of these other statutes, legislatively enacted, may be and are being set aside
Thus we come to the essential invalidity of
Lee concedes that the legislature has the authority to adopt existing federal statutes or regulations in its enact ments. We agree. See Wallace v. Commissioner of Taxation (1971), 289 Minn. 220, 184 N.W.2d 588 (the statute adopted the federal definition of adjusted gross income for state income tax purposes.)
The constitutional infirmity of
Almost without exception, the cases which recognize the right of a legislature to adopt as a part of its enactments existing federal laws and regulations also except from that right any adoption of changes in the federal laws or regulations to occur in the future. Wallace v. Commissioner of Taxation, supra; People v. DeSilva (1971), 32 Mich.App. 707, 189 N.W.2d 362 (statute upheld on ground of severability); Cheney v. St. Louis Southwestern Railway Co. (1965), 239 Ark. 870, 394 S.W.2d 731; Idaho Savings & Loan Association v. Roden (1960), 82 Id. 128, 350 P.2d 225; Seale v. McKennon (1959), 215 Or. 562, 336 P.2d 340; Dawson v. Hamilton (Ky. 1958), 314 S.W. 2d 532; State v. Urguhart (1957), 50 Wash. 2d 131, 310 P. 2d 261; Brock v. Superior Court (1937), 9 Cal.2d 291, 71 P.2d 209, among others.
Three states have upheld legislation similar to Montana’s and denied constitutional challenges to statutes incorporating federal speed limits. Masquelette v. State (Tex.Crim. 1979), 579 S.W.2d 478; State v. Dumler (1977), 221 Kan. 386, 559 P.2d 798; State v. Padley (1976), 195 Neb. 358, 237 N.W.2d 883. All three can be distinguished from this case by the terms of the Montana statute. In the other three cases, either the legislature pegged the speed limit, or the power granted to a state official or body to adopt speed limits was couched in permissive instead of mandatory terms. No state that we can find has approved a delegation of sovereign power involved here for mandatory action in the future, based upon the federal law.
The state further argues that in any event, if we were to determine that the ability of the attorney general in the future to change the maximum speed limits is unconstitutional, nonetheless, the statute can be saved by declaring that portion severable so as to preserve the constitutional validity of the rest of the act. However, there is no severability clause either in Ch. 60, Laws of Montana (1974), or in Ch. 421, Laws of Montana (1979), § 66, where this statute was enacted and reenacted. Moreover, the power of the court to sever an unconstitutional portion cannot be effectively exercised in this case because the attorney general’s proclamation must issue “whenever” the federal law changes, and must terminate whenever the federal requirement
We want to state clearly that had the legislature itself established the speed limit originally or at any subsequent session, we should then have found such enactment constitutional, even though it may have been in response to the federal requirements. Moreover, we see no constitutional infirmity, if an emergency of the sort presented here arose, in granting such proclamation power to a state official, if it were only for the interim between legislative sessions. The evil we find in the present legislation is the permanent delegation of the legislative sovereign power.
We consider now the effect of our determination that this legislation is invalid. We invite chaos to our highway system, and grave damage to the economy of our state, if because of this decision the federal funds were to be shut off. The maximum speed limit of 55 miles per hour is in harmony with the national goal of conservation of gasoline and oil, and with improved safety. It is imperative for the best interests of the state that the maximum speed limit be continued until the legislature has had a chance to act, and that law enforcement officers continue the enforcement thereof until valid legislation is enacted.
We have the power as an appellate court to order the effect of our decision to be retrospective or prospective, and in effect, to postpone the effective date of our decision. Such action is in order here.
Accordingly, the decision of the District Court that