142 P. 210 | Mont. | 1914
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, Article XIX 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.”
In the case of statutes passed by the legislative assembly and assailed as unconstitutional the question is not whether it is possible to condemn, but whether it is possible to uphold; and we
that an amendment can be separated into two or more propositions concerning the value of which diversity of opinion may exist is not alone decisive. If, in the light of common sense, the propositions have to do with different subjects, if they are so essentially unrelated that their association is artificial, they are not one; but if they may be logically viewed as parts or aspects of a single plan, then the constitutional requirement is met in their submission as one amendment. This was the clear intimation of this court in State ex rel. Teague v. Board of Commissioners, 34 Mont. 426, 87 Pac. 450, and finds expression in the following authorities from other jurisdictions: State v. Timme, 54 Wis. 318, 11 N. W. 785; State v. Herried, supra; Gabbert v. Chicago, R. I. & P. Ry. Co., 171 Mo. 84, 70 S. W. 891; Lobaugh v. Cook, 127 Iowa, 181, 102 N. W. 1121; People v. Prevost (Colo.), 134 Pac. 129; People v. Sours, 31 Colo. 369, 102 Am. St. Rep. 34, 74 Pac. 167; Hammond v. Clark, 136 Ga. 313, 38 L. R. A. (n. s.) 77, 71 S. E. 479; State v. Mason, 43 La. Ann. 590, 9 South. 776. The unity of subject implicitly required by the provision in question does not essentially differ from the unity of subject required by section 23, Article V, of the Constitution, concerning Acts of the legislative assembly: “Nobill, except general appropriation bills, and bills for the codification and general revision of the laws sliall be passed containing more than one subject which shall be
So premising, we return to the amendment in question and observe:
(a) That its submission was in manner and form as prescribed
(b) Only one provision of the Constitution was changed, to-wit, the provision by which the entire legislative authority of the state had been lodged in the legislative assembly. This fact is not of great importance, but it is important that but one change was made, vis.; To express a reservation of legislative authority in the people. That such authority could be used in two ways — designated, respectively, as the power to propose and enact laws, and the power to approve or reject laws enacted by the legislative assembly — does not suggest disconnection, but enumeration of the parts of a whole. Nor is the fact that a greater proportion of the electorate is required for the initiative than lor the referendum necessarily significant of more than that one mode of using the reserved authority is deemed of greater value than the other. These provisions are purely detail, which might, without injury to the amendment, have been left for the legisla
(c) It is undoubtedly true that, as the amendment was submitted, persons who approved the initiative, and not the referendum, or vice versa, were obliged to take both or neither. But this circumstance is not fatal if they were both parts of a single plan or general purpose; such divergencies of opinion are conceivable as to any amendment involving particularization. “The unity of object is to be looked for in the ultimate end, and not in the detail or steps leading to the end.” (Lobaugh v. Cook, supra.) In this connection the supreme court of South Dakota has spoken in terms which commend themselves to our judgment: “Does the resolution contain more than one amendment, within the meaning of the Constitution? It is contended with much apparent reason that two distinct objects were intended, namely, the abolition of the trustees and a change in the number and powers of the regents; that these objects are independent of each other; that either might have been adopted without adopting the other and that there are numerous reasons why an elector might have desired one change, and not the other. The defect in this argument consists in substituting for the real object or purpose one of its incidents. Control of the state educational institutions is the subject to which the proposed amendment relates. Its purpose or object is to place such institutions under the control of a single board. The membership of such board, its powers, and the abolition of the local boards are but incidental to and necessarily connected with the object intended. Hence we conclude that only one amendment was submitted.” (State v. Herried, supra.)
We are cited by the relator to many decisions upon this branch of the case, all of which we have carefully examined. Some of them are not in point; others, invoking principles not materially different from those expressed above, announce results which are ■manifestly correct; and all serve to illustrate the difficulties and doubts which sometimes surround the application of acknowledged principles to concrete causes. None of them furnish any warrant for us to say that, as a matter of law, the amendment
2. Defective Publication, (a) Publication of the proposed amendment was made but once a week, though in some instances
Our Constitution is the charter of our government — the body of rules and maxims in accordance with which the powers of sovereignty are exercised. ‘ ‘ Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument,
(b) Publication on Sunday. The publication of the proposed
In the early case of Hauswirth v. Sullivan, 6 Mont. 203, 9 Pac. 798, it was held that valid service of a summons could not be made on Sunday, but this was overruled when the like question again presented itself in Burke v. Interstate S. & L. Assn., 25 Mont. 315, 87 Am. St. Rep. 416, 64 Pac. 879.
Counsel for relator cite Ormsby v. Louisville, 79 Ky. 197, Scammon v. Chicago, 40 Ill. 146, Shaw v. Williams, 87 Ind. 158, 44 Am. Rep. 756, Sawyer v. Cargile, 72 Ga. 290, and Sewall v. City of St. Paul, 20 Minn. 511 (Gil. 459), as supporting their contention; but every one of these cases was decided upon a particular statute held to prohibit the act in question on Sunday. Such eases are not even precedents here, where we do not have such a statute. They also direct our attention to Schwed v. Hartwitz, 23 Colo. 187, 58 Am. St. Rep. 221, 47 Pac. 295, but the Colorado court is in direct conflict with our own holding in the Burke Case above. The decisions of courts of other states are not binding upon us. Precedents are valuable or invaluable as they appeal to our reason, on the one hand, or fail to do so, on the other. "We prefer to adhere to the doctrine announced by our own court in the Burke Case, as clearly correct in principle and having the support of the decided weight of authority.
Counsel for relator err in assuming that we have an austere statute prohibiting publication of this character on Sunday. They cite section 6220, Revised Codes, identical with section 12 of the same Codes. Each of those two sections reads as follows: “Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed, by law or contract, to be performed upon a particular day, which day falls upon a holiday, it may be performed upon the next business day, with the same effect as if it had been performed upon the day appointed.” Instead of embodying a prohibition, this statute merely provides an extra day of grace. Any of the enumerated acts may be done
(e) It is charged that certain publications ran for less than three months, and certain ones ceased several days before election day. Whether the publication in the last issue of a weekly paper runs forward and serves the purpose of giving continuous notice for the ensuing seven days until the next regular day of publication, or whether the publication is complete for all purposes of imparting notice, upon the day the last issue comes off the press, is not of sufficient consequence at this time to deserve special consideration. Also, for the purposes of this proceeding, it may be admitted that the constitutional requirement for three months’ publication previous to the election refers to the three-month period immediately preceding election day; and it may be conceded, further, that in the two respects now under consideration the publication of this proposed amendment in several of the counties was not according to the Strict letter of the law, as declared by the Constitution itself in section 9, Article XIX. It would not, however, be argued by anyone that there was not a substantial compliance in every particular, so that, after all, the serious question presented is one of construction.
In the absence of any declaration upon the subject, we would be inclined to hold that, from the very nature of the document itself, every provision of a state Constitution positive in form is mandatory, but in this state we are not left in doubt. “The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” (Mont. Const., Art. Ill, sec. 29.)
The provision for publication of a proposed amendment falls within the general rule, and, because of this fact, it is insisted that nothing less than an absolute, literal compliance will suffice.
(a) Assume that there was absolute compliance with the language above in every county save one, and in that one there was a bona fide intention to make the same strict compliance, but on the day of the last publication, which occurred on the day before election, after the type had been set, the forms all arranged, and the presses ready to start, lightning should set fire to the building and destroy the entire plant. Because of this act of God there was not full three months’ publication in that one county, and yet, according to the rule or literal compliance, the amendment would fail, even though every qualified elector in that county had notice and actually voted in favor of the amendment.
(b) Again, the amendment must not only be published, but published in full. The rule of literal compliance will not permit the omission of a single sentence, phrase, or word. Let us assume again the facts in the illustration above, except that instead of the intervention of an act of God, a careless printer had omitted the word “all” in paragraph 5 of the amendment under consideration, beginning, “All elections on measures referred to the people,” etc., and in the last issue of the paper before election that paragraph was made to commence, “Elections on measures referred to the people,” etc. The omission does not change the meaning of the sentence in the least, and
(c) Indeed, to reach the very acme of absurdity, we need only-say that the rule of literal compliance requires that every word be spelled correctly, and if in the last illustration the printer inadvertently omitted the letter “a” from the word “measures,” and this was the only departure, the amendment would fail under the rule in question. A court which would nullify the expressed will of-the people upon such a flimsy pretext as any. one illustrated above would deservedly forfeit every claim to the respect or confidence of the community.
• But the enforcement of such a rule would also defeat the very purpose of the provision under consideration. Our Bill of Rights declares: “The people of the state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state, and to alter and abolish their Constitution and form of government, whenever they may deem it necessary to their safety and happiness, provided such change be not repugnant to the Constitution of the United States.” (Const., Art. Ill, sec. 2.) Section 9, Article XIX, deals with but one subject — amendments to the Constitution. In its adoption it was not the purpose of the people to render their fundamental law incapable of change, but, on the contrary, to provide a plain, simple and easily executed method of amendment.
So long as human agencies are to be employed in carrying out the constitutional scheme of amendment, slight errors and defects in procedure are certain to occur, and to impose the rule of literal compliance would, for all practical purposes, render the adoption of any amendment absolutely impossible and defeat one of the very purposes of the Constitution itself. We ought not, by any strained construction, make the language of our Constitution mean something altogether different from what the
In speaking of a slight deviation from the constitutional method of proposing an amendment, the supreme court of Mississippi said: “This objection would have more force if the Act of itself operated as an alteration of the Constitution. But it is merely a proposition to be submitted to the action of the people. It is a means provided by which the people may exercise their sovereign right of declaring whether they will change their Constitution or not, thereby establishing the mode in which the government shall be changed, instead of leaving it to unregulated popular impulse. -The proposition is presumed to emanate from the people, through their representatives, and is regularly submitted for the action of the whole people. There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot-box, and there can never be danger in submitting, in an established form, to a free people, the proposition whether they will change their fundamental law. The means provided for the exercise of their sovereign right of changing their Constitution should receivé such a construction as not to trammel the exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people; and the best security against tumult and revolution is the free and unobstructed privilege to the people of the state to change their Constitution in the mode prescribed by the instrument.” (Green v. Weller, 32 Miss. 650.)
If publication of a proposed amendment was one of the successive steps in its adoption, or if universal notice of the proposed amendment throughout the state before election was the sine qua non to the valid adoption of such amendment, then gome foundation would be laid for argument that the slightest
The proper proposal of the amendment by the legislature and the will of the people expressed at the polls in favor of such amendment are clearly emphasized as the factors of paramount importance in effecting-a change of our Constitution. (Constitutional Prohibitory Amendment Cases, 24 Kan. 700.) Whatever may be said of the rigidity with which the rules of law must be drawn whenever either of these paramount factors is in issue, we are clearly of the opinion that any question which may arise upon other features of the amending process is referable to the rule of substantial compliance, even though the provision of the Constitution invoked is mandatory.
Much confusion has arisen by assuming that every mandatory provision requires literal compliance, while a directory provision only is satisfied with substantial compliance. The terms “mandatory” and “directory” are employed in the same sense, whether applied to statutes or to constitutional provisions. The entire disregard of a provision would not necessarily invalidate
In Abbott’s Law Dictionary we find this exposition of the words “mandatory” and “directory”: “Mandatory. The principal technical use of this word is in distinguishing statutes which must be obeyed according to the substantial import of their terms under sanction of having the Act or proceeding adjudged void, from those which ought indeed to he obeyed, but, if disobeyed, do not invalidate what is done under them; which latter class of enactments are called directory.” (Abbott’s Law Dictionary, 78.)
In Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153, this court, in considering section 3612, Political Code of 1895, said: “The statute is mandatory, and substantial compliance with its provisions is necessary.”
In Walker v. Pennington, 27 Mont. 369, 71 Pac. 156, we said: “In the judgment of this court the decision in the ease of Purdum v. Laddin, above, has little or no application to the facts in this ease; but, so far as the statement contained therein to the effect that the provisions of section 3612, above, are mandatory, and that substantial compliance therewith is necessary to perfect a valid location, is concerned, we have no hesitancy in here reaffirming it.”
The rule that substantial compliance with the mandatory provisions of the Constitution for its own amendment is sufficient in the absence of any intimation that injury — substantial or unsubstantial — resulted was adopted by the supreme court of Kansas in Constitutional Prohibitory Amendment Cases, above, and by the supreme court of Georgia in Hammond v. Clark, above.
If these attacks had been made upon the proceedings prior to the election of 1906, doubtless they would have prevailed (Potter v. Furnish, 46 Mont. 391, 128 Pac. 542); but the general rule
In State ex rel. Woods v. Tooker, 15 Mont. 8, 25 L. R. A. 560, 37 Pac. 840, the proposed constitutional amendment under consideration was published but two weeks. The opinion delivered by the court, though covering more than nine printed pages, goes no further than to hold that the provision for publication is mandatory, and that, because the proposed amendment was published but two weeks, it was not legally adopted. No one would contend that two weeks’ publication substantially meets the requirement for three months’ publication; on the contrary, no one can seriously insist that in every detail the proceedings for publication of the initiative and referendum amendment did not substantially comply with the requirements of section 9, Article XIX, above.
The election returns of 1906 disclose that the proposed amendment was adopted by a vote of 5.5 to 1. That proportion was maintained or exceeded in every county where the publication is called in question, excepting in Cascade, Fergus, and Park counties. The vote in those counties follows:
Counties. For. Against.
Beaverhead..... 1050 135
Cascade...... 2486 883
Deer Lodge____ 1346 105
Fergus ........ 1666 494
Gallatin ....... 1856 343
Lewis and Clark 2712 446
Missoula....... 1087 147
Park........... 1431 412
Silver Bow ____ 7783 1211
Yellowstone____ 1128 194
When the proclamation of the Governor was made after the election in 1906, the initiative and referendum amendment became prima facie a part of the Constitution of this state (State
The order to show cause is discharged and this proceeding is dismissed.
Dismissed.