State ex rel. Mitchell v. Holmes ( 1954 )

MR. JUSTICE FREEBOURN:

This is an original proceeding in this court whereby the relator Sam W. Mitchell seeks a writ of injunction to enjoin and restrain the state auditor from approving claims, and issuing warrants therefor, and the state treasurer from paying the same, as made by the eight respondent members of the Thirty-third Legislative Assembly of the State of Montana, assuming to act as the “Montana Legislative Council,” and to enjoin and restrain the eight respondent members of such Legislative Assembly from acting as such council.

It is the contention of the relator that the legislative act of the 1953 Legislative Assembly, which purports to create the “Montana Legislative Council,” is unconstitutional.

With such contention we agree.

Chapter 143, Laws of 1953, enacted by the Thirty-third Legislative Assembly of the State of Montana and purporting to create the “Montana Legislative Council” is unconstitutional and invalid for the following reasons:

1. In addition to the $30,000 appropriated by the Legislature for the work of this council the Act provides: “In accomplishing the purposes of this act, the council is empowered to accept grants of money * * * from any * * * person or corporation * * Section 8.

All the members of the council are members of the Thirty-third Legislative Assembly of Montana and, as such, public officers. If public officers of the state, whether legislative, executive or judicial, were permitted to accept grants or gifts of money from any person or corporation, the grantors and givers of such money would have a financial interest, for it is well known that he who controls the purse pulls the string, to the detriment of the individual citizen. The taking of such money, whether attempted to be sanctioned by statute or not, would encourage an unwholesome condition and would be in direct conflict with and violative of tbe constitutional oath, taken by all public officers in this state, whereby each swears:

“I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity; * * * that I will not knowingly receive, directly, or indirectly, any money or other valuable thing for the performance or non-performance of any act or duty pertaining to my office other than the compensation allowed by law, so help me God.” Article XIX, sec. 1, Montana Constitution.

2. This Act allows members of the 1953 Legislative Assembly (four members of the House of Representatives and four members of the State Senate), who were to comprise the council, “actual traveling and other expenses incurred in the discharge of their duties, including attendance at meetings.” This violates Article V, sec. 5, of the Montana Constitution which provides the per diem and mileage allowed each member of the legislative assembly and says that he “shall receive no other compensation, perquisite, or allowance whatsoever.”

3. The Act contravenes Article V, sec. 8, of the Montana Constitution which provides: “No member of either house shall, during the term for which he shall have been elected, receive any increase of salary or mileage under any law passed during such term.”

4. The Act contravenes, also, Article V, sec. 26, of the Mon- tana Constitution which provides: “The legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * creating, increasing or decreasing fees, percentages or allowances of public officers * * *. ’ ’

5. Every member of the purported council is a member of the 1953 Legislative Assembly, the House members being elected for a term covering 1953 and 1954. The term of the House members or representatives who are members of this council ceases at the end of 1954. Yet this Act, in the face of

Article V, sec. 2, of tbe Montana Constitution which limits the terms of representatives to a “term of two years,” permits the legislators on such council to extend their work and investigations throughout 1953, 1954 and during the 60-day session of the next or 1955, Legislative Assembly.

6. The Act contravenes Article V, sec. 7, of the Montana Constitution which provides: “No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office imder the state * * *.”

7. The Act, also, contravenes Article IV, sec. 1, of the Mon- tana Constitution which provides: “The powers of the government of this state are divided into three distinct departments : The legislative, executive, and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

The Act permits the legislative department, through this council, to exercise powers of investigation properly belonging to the executive and judicial departments of the state government. It permits the legislative department, through this council, to exercise powers of the judicial department by giving such council the power to “compel the attendance of witnesses before its hearings and require the production of papers, documents or other evidence required by it, and to issue subpoenas for such purposes.”

8. It is clear from a reading of the Act that the duties of the proposed council are the same as those performed by members and committees of the regular legislative assembly during a regular 60-day session, with the exception of finally enacting proposed measures into law. Among these duties are: Examining state offices, state institutions, state funds and appropriations; receiving messages and reports from the Governor and other state officials; holding public hearings and investigations; and reporting its findings and proposed legislative enactments to each, succeeding regular session of the legislative assembly, on or before the tenth day of such session.

The intent and purpose of this Act is to permit the legislative assembly to perform duties and exercise powers, acting through but eight of its members, over a period of more than two years, which the Constitution permits only to be performed and exercised by a duly organized legislative assembly over a 60-day period. The Act, therefore, violates Article V, sec. 5, of the Montana Constitution which provides, in part, that “No session of the legislative assembly * * * shall exceed sixty days.”

It is this court’s duty to interpret this Act as directed by the Constitution which provides: “The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” Article III, sec. 29.

The members of the legislative department, like the members of the executive and judicial departments of our state government, are bound by the plain mandates and prohibitions of the State Constitution as it is written and when, as here, it is sought to do that which the Constitution does not allow, the remedy is to first submit the proper amendment or amendments to the Constitution to the vote of the people and thus obtain their sanction and approval to do that which the fundamental law does not now permit.

Let the peremptory writ issue. It is so ordered.

MR. CHIEF JUSTICE ADAIR and MR. JUSTICE BOTTOMLY concur.