Vaughn & Ragsdale Co. v. State Board of Equalization ( 1939 )

This is an appeal from a judgment in favor of the defendants in an action to recover license fees paid under protest. The cause was tried by the court sitting without a jury on an agreed statement of facts supplementing admissions contained in the pleadings. The action involves the validity of Chapter 199, Laws of 1937.

The agreed statement of facts contains this provision: "The defendants tender and offer the following facts which are admitted by the plaintiff, but without admitting the competency, relevancy and materiality thereof; it being expressly stipulated and agreed that plaintiff objects to each and all of said facts on the ground that each of them is incompetent, irrelevant and immaterial to any of the issues herein, and particularly on the ground that the court has no power to go behind the enrolled bill as signed by the Speaker of the House and Lieutenant Governor as President of the Senate, and approved by the Governor of the State of Montana and deposited by him in the office of the Secretary of State, and that said facts, or any of them, are to be considered herein only as the court may determine them to be competent, relevant and material."

The established rule on this question is clearly set forth in[1] the case of State ex rel. McTaggart v. Middleton,94 Mont. 607, 28 P.2d 186, 187, where it was said: "This court can look behind the enrolled bill for one purpose only, and that is to see whether the constitutional mandate requiring that on the final passage of a measure the vote has been taken by ayes and noes, and the names of those voting have been entered on the journal." The rule applied in that case is in accord with all former decisions of this court on the same point, but, for the reasons that will appear later in this decision, to determine that question in the action at bar is not material. Here we are dealing with plain and unambiguous provisions of the Constitution and what the journals show as to the procedure relative to the passage of the bill by the legislative assembly is of minor importance and cannot be permitted to take precedence over the more vital constitutional questions involved. Whether this court will, in other actions, elect to depart from the established rule relative to going behind the enrolled bill to obtain evidence to sustain or impeach a legislative Act on other grounds than those specified in the McTaggart Case, is not of material importance in the case at bar. That question can be determined when an action comes before the court in which it is a determinative factor.

House Bill No. 38 resulted in the enactment that appears in the 1937 Session Laws as Chapter 199. The bill as introduced carried the enacting clause prescribed by the provisions of section 1, Article V of the Constitution, which is in the following words and form: "Be it enacted by the people of Montana." This is the form of enacting clause prescribed by the above provision of the Constitution for measures initiated by the people. After the bill had been introduced and referred to a committee, it was amended so as to carry the correct enacting clause provided for a bill introduced in the legislative assembly, as prescribed by section 20, Article V of the Constitution, which is as follows: "Be it enacted by the Legislative Assembly of the State of Montana." Somewhere during the progress of the bill through the legislature, the committees, or through the hands of engrossing and enrolling clerks, the enacting clause was changed from that prescribed for a bill enacted by the legislature to the form that the bill first carried — that is, the form of enacting clause prescribed by the Constitution for measures initiated by the people.

With this defective enacting clause, the bill was signed by the presiding officer of each house, presented to the Governor, approved and signed by him, and deposited in the office of the Secretary of State, and the enrolled bill so deposited in the office of the Secretary of State was incorporated in the volume which contains the Acts of the legislative assembly of the State of Montana of the Twenty-Fifth Session, and is found in the Acts of that session with the enacting clause provided for measures initiated by the people, instead of the enacting clause prescribed by the Constitution for bills introduced and passed by the legislature.

The enacting clause is of the very essence of any bill[2] introduced in the legislature. It is a matter of common knowledge that if a member desires effectively to kill a bill he moves to strike the enacting clause, and if the motion carries the bill is dead.

It is quite obvious that in the course of the bill through the[3] legislature, and before it was signed by the presiding officer of each house and approved by the Governor and became a law, the enacting clause was changed. In the construction of this Act it is entirely immaterial, so far as this court is concerned, as to how, when, for what purpose or in what manner the change in the enacting clause was made. The measure comes before this court in the condition we find it in the duly authorized volume of the Session Laws of 1937, and in determining whether Chapter 199 is invalid or not we are confronted with a factual situation. It is entirely immaterial how the defective enacting clause happens to be a part of the measure. It is a legislative defect, and a defect which the legislature alone had the power to remedy. The legislative assembly of the 1939 session recognized the defect in the 1937 Act, and corrected that defect by reenacting the 1937 Act with an enacting clause as prescribed by the Constitution. (Laws 1939, chap. 163.) For the future, the license tax on chain stores has been fully and completely set at rest by the new Act, to remain so at the pleasure of the legislature, and this court is now concerned only with the controversy which involves the payment of the license tax paid under protest for the year 1938 imposed under the provisions of Chapter 199 of the 1937 Laws, which has been repealed. The 1939 Act did not specifically repeal the 1937 Act, but the new Act carries a general repealing clause (sec. 14) and there can be no doubt from its form and substance that the 1939 measure was enacted for the sole purpose of correcting the defective enacting clause and intended to replace the prior Act.

This court has the power to declare a legislative Act invalid,[4] but it has no power to correct or amend an Act, or even construe it when expressed in plain and unambiguous language. "The courts must declare the law as they find it." (Putnam v.Putnam, 86 Mont. 135, 282 P. 855, 860, and cases cited.) "In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted." (Sec. 10519, Rev. Codes; see, also, Mitchell v. Banking Corporation of Montana, 83 Mont. 581,273 P. 1055.)

It is vitally important that we refresh our minds by a review of the pertinent constitutional provisions essential to transform a bill introduced in the legislative assembly into a law:

Section 20, Article V of the Constitution provides: "The enacting clause of every law shall be as follows: ``Be it enacted by the Legislative Assembly of the State of Montana.'" It is admitted that instead of this form of enacting clause, Chapter 199 of the Session Laws of 1937 carries the enacting clause prescribed by section 1, Article V, as heretofore quoted.

Section 27, Article V of the Constitution provides: "The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the legislative assembly," etc.

Section 12, Article VII, provides: "Every bill passed by the legislative assembly shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it, andthereupon it shall become a law," etc.

Clearly, the legislature cannot enact a law. It merely has the[5] power to pass bills which may become laws when signed by the presiding officer of each house and are approved and signed by the Governor, or which he allows to become laws without his signature by lapse of time, in the manner prescribed by the Constitution. The presiding officer of each house and the Governor have under the Constitution, an indispensable part of the making of every law. They are part of the machinery set up by the Constitution to make laws. Exercise of the veto power of the Governor raises a question not involved here.

House Bill 38, passed by the legislative assembly, is not the[6] bill that was signed by the presiding officer of each house, approved and signed by the Governor, deposited by him with the Secretary of State, and which we find in the published Acts of the legislative assembly of the 1937 session as Chapter 199. This is true for the very simple reason that it was not made a law in the form and manner prescribed by the provisions of the Constitution heretofore quoted. The bill passed by the two houses is not the identical bill approved and signed by the Governor and this court has no authority "to insert what has been omitted."

In the case of Katerndahl v. Daugherty, 30 Idaho, 356,164 P. 1017, 1018, the house and senate passed a bill; it was signed by the presiding officer of each house, approved and signed by the Governor, but the enrolled bill failed to carry an amendment by the senate that had been agreed to by the house. A writ of mandate was sought to compel the Secretary of State to insert the amendment. The court quoted section 10, Article IV of the Idaho Constitution, which is identical with our section 12, Article VII, and then said: "By the agreed statement of facts the bill as amended was never presented to the Governor, and therefore cannot be a law of the state."

Section 29, Article III of the Constitution provides: "The[7] provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise."

Chief Justice Brantly, speaking for the court in State exrel. Peyton v. Cunningham, 39 Mont. 197, 103 P. 497, 498, 18 Ann. Cas. 705, after quoting section 20, Article V of the Constitution, supra, relating to the enacting clause of bills introduced in the legislative assembly, amongst other provisions of that instrument, said: "These provisions are to be construed as mandatory and prohibitory, because there is no exception to their requirements expressed anywhere in the Constitution."

That section 20, Article V, is mandatory there can be no[8] question. The English language is not susceptible of a more mandatory expression. It says that the enacting clause of every bill shall be in the words prescribed. "When the terms of a statute are plain, unambiguous, direct, and certain, it speaks for itself, and there is nothing for the court to construe." (State ex rel. Public Service Com. v. Brannon, 86 Mont. 200,283 P. 202, 206, 67 A.L.R. 1020. See, also, State ex rel. Du Fresne v. Leslie, 100 Mont. 449, 50 P.2d 959, 101 A.L.R. 1329.) This is a rule universally followed by all authorities on statutory construction, and the same rule applies in the construction of provisions of the Constitution. (State exrel. Gleason v. Stewart, 57 Mont. 397, 188 P. 904; State exrel. Du Fresne v. Leslie, supra.) "If no ambiguity exists * * * the letter of the law will not be disregarded under the pretext of pursuing its spirit." (Cruse v. Fischl, 55 Mont. 258,175 P. 878, 881.)

The view has been advanced that the enacting clause of bills[9] introduced in the legislative assembly is merely a "flag" under which bills run the course through the legislative machinery, and that substance is sacrificed to form by insistence on regularity in such procedure. Such contentions might be plausible if the enacting clause of bills were not set down in the Constitution in plain and mandatory form. The painstaking work of the framers of our Constitution is worthy of greater consideration. It was said in State ex rel. Woods v. Tooker,15 Mont. 8, 37 P. 840, 841, 25 L.R.A. 560: "It is but fair[10] to presume that the people in their Constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication." The tendency to disregard the profound regard shown for provisions of the Constitution by our predecessors has become all too common in these modern and iconoclastic days. Some wisdom at least was possessed by the men who carefully framed the Constitution. Again it was said in the Woods Case, quoting from Cooley's Constitutional Limitations, fourth edition, pages 94-96: "If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law so great as that which is done by a habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed."

In the arguments in the case at bar liberal quotations are taken from cases decided by the courts of last resort of Kentucky, Tennessee and South Carolina, in which the courts of those states upheld legislative Acts wherein the bills carried enacting clauses not in entire accord with that prescribed by the respective Constitutions. These cases are of little value here. In none of them did the defective enacting clause purport to derive legislative power from any other source than the legislative assembly. In fact, in none of the three states mentioned is the initiative in effect, and all legislative power is in the legislative assembly, and hence any Act passed by the legislative assembly must have been the Act of the assembly. In this state laws come from two sources: from legislative Acts, and from measures initiated by the people. The Act under consideration purports to have been enacted by one of our legislative bodies — in fact it was enacted by the other.

We think the provisions of the Constitution are so plainly and[11] clearly expressed and are so entirely free from ambiguity that there can be no substantial ground for any other conclusion than that Chapter 199 was not enacted in accordance with the mandatory provisions of that instrument, and that the Act must be declared invalid. It is unfortunate that the legislature failed to follow the mandatory requirements laid down by the people in the Constitution, but the courts have no more authority to overrule the people in that respect than has the legislature.

In view of our conclusions as set forth in the foregoing opinion, we deem it unnecessary to give further consideration to the numerous contentions and citations of authority of respective counsel.

The judgment is reversed and the cause remanded with instructions to enter judgment for plaintiff.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICE STEWART concur.