State Ex Rel. Woodahl v. Dist. Cour

No. 12517
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1973
STATE EX REL, ROBERT W O A L , ODH
A t t o r n e y General o f t h e S t a t e
o f Montana, and LAWRENCE G. STIMATZ,
County A t t o r n e y o f S i l v e r Bow County,
Montana,
Petitioners,
THE DISTRICT COURT O THE SECOND JUDICIAL
F
DISTRICT O THE STATE O MONTANA, I N AND FOR
F F
THE COUNTY O SILVER BOW, and t h e HONORABLE
F
JAMES D. FREEBOURN e t a l . ,
Respondents.
ORIGINAL PROCEEDING :
Counsel o f Record :
For P e t i t i o n e r s :
Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
Montana.
Edward Laws a r g u e d , A s s i s t a n t A t t o r n e y General,
Helena, Montana.
Lawrence G. S t i m a t z appeared, County A t t o r n e y , B u t t e ,
Montana.
William K i r k p a t r i c k appeared, B u t t e , Montana.
For Respondents:
Hon. James D. Freebourn, D i s t r i c t Judge, a r g u e d ,
B u t t e , Montana
Maurice F. Hennessey a r g u e d , B u t t e , Montana.
Submitted: June 1, 1973
Decided
'W 9 9 977.3
Filed :
Mr. Justice Wesley Castles delivered the Opinion of the Court.
This is an original proceeding seeking a writ of supervisory
control over the district court of the second judicial district,
the Honorable James D. Freebourn presiding.. Petitioners are the
Montana Attorney General and the County Attorney of Silver Bow
County. On exparte application this Court issued an order which
stated in part:
"Petitioners in this original proceeding seek
a writ of supervisory control or other appropriate
writ to reverse the action of the district judge in
quashing an information and dismissing the action
filed therein and in finding that gambling and lot-
teries are now authorized in the state of Montana.
Counsel was heard ex parte and the matter taken under
advisement.
"The Court now being advised in the premises,
it desires that an adversary hearing be held herein
to ascertain whether or not this Court should assume
jurisdiction and decide this controversy and the
respondent district judge through counsel and appli-
cant, be and appear before this Court at the hour of
9:30 a.m. on June 1, 1973, to orally argue and present
briefs in typewritten form on the issues involved.
"That the parties herein be prepared to argue the
force, effect and validity of sections 94-2401 through
94-2403, R.C.M. 1947, under the provisions of Article
XIX, section 2, Constitution of Montana, 1889, and
Article 111, section 9, Constitution of Montana, 1972.
"That the actions of the respondent district
judge in Cause Number 9033 be and are stayed pending
the determination of the matters in the cause of action."
Return and answer was made, briefs filed and the matter argued.
On May 14, 1973, petitioner County Attorney Stimatz filed
an Information in respondent district court charging one Nick
Elakovich with possession of gambling equipment under the pro-
visions of section 94-2401, R.C.M. 1947. Immediately upon the
Information being filed, defendant" attorney moved to quash the
Information. The motion and ruling by respondent court were:
"MR. HENNESSEY: At this time, Your honor, I would
move to quash the information on the grounds and for
the reasons that the information taken together with
the request for leave of information, does not consti-
tute a public offense under the laws of the State of
Montana. It being my position that when the Constitutional
Convention presented t o t h e people of t h e S t a t e
of Montana a referendum v o t e on whether o n o t w
gambling should be allowed i n t h e S t a t e of Montana,
t h e people of the S t a t e of Montana voted one hun-
dred t h i r t y - n i n e thousand t h r e e hundred eighty-two
(139,382) t o eighty-eight thousand seven hundred
f o r t y - t h r e e (88,743) i n favor of allowing gambling
i n t h e S t a t e of Montana. I would l i k e t o have
marked a s an e x h i b i t f o r m motion t h e c e r t i f i c a -
y
t i o n of t h e Secretary of t h e S t a t e a s a r e s u l t of
t h e vote. It i s m p o s i t i o n , t h a t because of t h e
y
expression of t h e opinion of t h e people of t h e
S t a t e of Montana, t h a t we have i n e f f e c t a r e f e r e n -
dum and t h a t t h e r e a r e no laws on t h e books which
p r o h i b i t s gambling i n t h e S t a t e of Montana. I have
a second p o s i t i o n t h a t t h e information does n o t s t a t e
a cause of a c t i o n o r a c r i m i n a l o f f e n s e a g a i n s t t h e
defendant, i n t h a t Section 94-2401, Revised Codes
of Montana, 1947 a s amended, allows a l i m i t e d form
of gambling within t h e S t a t e of Montana and t h e
C o n s t i t u t i o n s p e c i f i c a l l y provided, t h e new Consti-
t u t i o n s p e c i f i c a l l y provided, i r r e s p e c t of t h e
referendum t h a t a l l laws t h a t a r e on t h e s t a t u t e s ,
t h a t a r e on t h e books, t h a t a r e not c o n t r a r y t o t h e
new C o n s t i t u t i o n s h a l l be i n f u l l f o r c e and e f f e c t
unless otherwise changed o r allowed t o e x p i r e ,
M p o s i t i o n , t h e L e g i s l a t u r e having met and having
y
not repealed t h a t s e c t i o n of t h e law, t h a t t h e
information charging t h e defendant i s i n s u f f i c i e n t
and should be quashed. I f e e l we a r e i n t h e p o s i t i o n
where t h e r e a r e e i t h e r no laws a s a r e s u l t of t h e
referendum, o r t h a t t h e most o r t h e l e a s t a f f e c t would
be t h a t t h e r e a r e laws on t h e books allowing gambling
which have n o t been repealed, and t h e referendum a t
l e a s t proves t h e s e laws and t h e new C o n s t i t u t i o n by
i t s saving c l a u s e o r affirrnment c l a u s e .
"THE COURT: Let t h e records show t h a t appearing t o
t h e Court t h a t t h e C o n s t i t u t i o n a l Convention by i t s
a c t i o n and by t h e a c t of t h e people with t h e i r v o t e
and by t h e L e g i s l a t u r e of i t s proceedings, t h a t t h e r e
appears t o t h e Court t o be laws a u t h o r i z i n g gambling
i n Montana with no laws p r o h i b i t i n g gambling i n Montana.
Therefore, t h e motion of counsel f o r t h e defendant i s
granted and t h e information i s ordered quashed a s prayed
f o r by and moved by counsel."
Thus, respondent c o u r t ' s order i s based upon t h e reasoning
t h a t t h e v o t e of t h e people on June 6 , 1972, on t h e 1972 C o n s t i t u t i o n
i n favor of contingent proposition number 3 and t h e a c t i o n of t h e
1973 L e g i s l a t i v e Assembly i n not r e p e a l i n g s e c t i o n 94-2401, R.C.M,
1947, l e f t Montana with no laws p r o h i b i t i n g gambling, and p a r t i c u l a r l y
no law p r o h i b i t i n g possession of gambling equipment.
P e t i t i o n e r s contend t h e t r i a l judge a c t e d under a mistake of
law i n quashing t h e Information. They s e t f o r t h t h e s e t h r e e
issues:
.. C . i .
1 Whether the 1937 amendment of what is now section
.
94-2401, Revised Codes of Montana, 1947, is invalid and of no
force and effect under the provisions of Article XIX, section 2,
Constitution of Montana, 1889?
2. Whether the passage of the Constitution of Montana,
1972, and specifically Article 111, section 9, Constitution of
Montana, 1972, and the actions of the Forty-third Legislative
Assembly made valid now or in the future the 1937 amendment to
what is now section 94-2401, R.C.M, 1947, and invalidated all laws
of the state of Montana prohibiting gambling?
3. Whether this Court has jurisdiction to issue a writ of
supe~isorycontrolor other appropriate writ in this matter?
Respondent court, appearing pro se by brief and oral argu-
ment, expands its ruling quoted above by asserting that (a)
possession of punchboards in themselves is not a violation of
section 94-2401; ( ) that section 94-2401 is made inoperative by
b
the vote of the people at the constitutional election; and (c)
that, in any event, as of July 1, 1973 when the new Constitution
becomes operative, section 94-2401 was repealed by the vote of
the electorate on the new Constitution, As to petitioners' issue
No. 3, set forth heretofore, on the availability of the writ of
supervisory control, respondent court asserts that the remedy by
appeal is adequate. We shall deem this assertion to be a motion
to quash and hereby deny that motion.
We will first discuss issue No. 3. Petitioners assert that
remedy by appeal is not adequate since the ruling of the district
court creates grave uncertainty as to the status of Montana law
regarding gambling and thus imposes an impossible burden on law
enforcement officials. We agree with this assertion and under
the authority of State ex rel. Whiteside v, First Judicial Dis-
trict Court, 24 Mont. 539, 63 P. 395, and State ex rel, Harrison
v, District Court, 135 Mont, 365, 340 P.2d 544, we exercise our
discretion to invoke original jurisdiction.
We next consider ~etitioners'issue No. 1, the validity or
invalidity of section 94-2401, R.C.M. 1947, particularly as to the
1937 amendment to what was then section 11159, R.C.M. 1935, (now
94-2401, R.C.M. 1947), the so-called "Hickey Law" passed as
Chapter 153, Laws of 1937.
In the 1947 Revised Codes of Montana, the compiler's note
following section 94-2401, states:
f 'The
second proviso of this section (shown in
brackets) was rendered void by the decision of
the supreme court in State ex rel. Harrison v.
Deniff; the validity of the first proviso was
cast into serious doubt by that decision. See
annotation on I constitutionality' below. II
Indeed, the entire 1937 amendment was unconstitutional and
void. In State ex rel. Harrison v. Deniff, 126 Mont. 109, 113,
245 P.2d 140, this Court said flatly:
"Sections 94-2401 et seq. and 84-5701 et seq. au-
thorizing and licensing so-called trade stimulators,
are void and invalid as violative of the constitu-
tional prohibition." [Art, XIX, see. 2, Montana
Constitution].
This Court, in speaking of Article XIX, sec. 2, Constitution
of Montana, 1889, in State ex rel, Steen v. Murray, 144 Mont. 61,
65,66, 394 P.2d 761, to make it even more clear said:
"The provisions of Article XLX, 52, are both manda-
tory and prohibitory. Proposed Initiative Measure
No, 63 is directly opposed to Article XIX, 52.
Measure No. 63 would repeal sections 94-3001 through
94-3011which sections deal with lotteries in so
many words as required by Article XIX, 52, supra.
The proposed Initiative Measure No. 63 refers only
11
to 'gambling'; it does not mention I lotteries' speci-
fically but does so by code section reference. Even
so, that lotteries are gambling has keen determined
by this court. In State ex rel. Leahy v. ~ ' ~ o u r k e ,
115 Mont. 502, 504, 146 P.2d 168, 169, this court said:
ambling is a generic term, embracing within
its meaning all forms of play or game for stakes wherein
one or the other participating stands to win or lose as
a matter of chance. Play at lottery is gambling. t
"This court has ruled in a number of cases, always con-
sistently. In State v. Cox, 136 Mont. 507, 511, 512,
349 P.2d 104, 106, the court said:
11 t To our mind, the framers of the Montana Consti-
tution who expressly forbade the Legislature to authorize
lotteries or gift enterprises and commanded it to pass
laws to prohibit the sale of lottery or gift
enterprise tickets in Article XIX, 52 of the
Montana Constitution, were seeking to suppress and
restrain the spirit of gambling which is culti-
vated and stimulated by schemes whereby one is induced
to hazard his earnings with the hope of large winnings.
The statutes which define and prohibit lotteries must
therefore be interpreted with this purpose in mind. I
See also State ex rel. Harrison v. Deniff, 126 Mont.
109, 245 P.2d 140; State v. Tursich, 127 Mont. 504,
267 P.2d 641.
"It is clear from the foregoing cases that the Legis-
lature could not constitutionally legalize lotteries,
'%Je have also held that the people exercising the
initiative are subject to the same rules as the
Legislature. See State ex rel. Palagi v, R.egan,
113 Mont. 343, 126 P,2d 818; State ex rel. Bonner
v. Dixon, 59 Mont. 58, 74, 195 P. 841,"
Thus, the 1937 amendment to section 11159, R.C.M. 1935,
was invalid leaving the section intact as it had been before the
attempted amendment.
The effect of a ruling by a court that a statute or portion
thereof is unconstitutional was discussed in Commissioners of
Roads and Revenues of Fulton County v. Davis, 213 Ga, 792, 102
S.E.2d 180, 182, 183, There the court said:
11 1
The time with reference to which the constitu-
tionality of an act of the general assembly is to
be determined is the date of its passage, andl if it
is unconstitutional, then it is forever void. Jones
v. McCaskill, 112 Ga. 453, 456, 37 S.E. 724, 725.
he general rule is that an unconstitutional statute,
though having the form and name of law, is in reality
no law, but is wholly void, and in legal contemplation
is as inoperative as if it had never been passed.
Such a statute leaves the question that it purports to
settle just as it would be had the statute not been
enacted. 1 I1 Am.Jur., Constitutional Law, 827 5 148.
Grayson-Robinson Stores v, Oneida, LTd., 209 Ga, 613,
617, 75 S.E.2d 161,163. 'A void staute can be made
effective only by re-enactment.1 Grayson-Robinson
Stores v. Oneida, Ltd., supra. 11
The Supreme Court of Washington in Boeing Company v, State,
74 Wash.2d 82, 442 P.2d 970, 974, stated the proposition in this
manner :
"1t is the rule that an invalid statute is a nullity.
It is as inoperative as if it had never been passed.
State ex rel. Evans v. Bhd, of Friends, 41 Wash.2d 133,
247 P.2d 787 (1952).
he natural effect of this rule is that the invalidity
of a statute leavesthe law as it stood prior to the en-
. : . Statutes 5 75
actment of the invalid statute. 82 c 3 ~
at 132 (1953); 16 Am.Jr, 2d, Constitutional Law 5 177 at
405 (1964)."
See a l s o City of Albuquerque v. Reynolds, 7 1 N.Mex, 428, 379
P.2d 73, 82.
From t h e above, i t i s c l e a r t h a t t h e decision of t h i s Court
i n Deniff n u l l i f i e d t h e a c t r e l i e d upon by respondent c o u r t i n
i t s order.
Respondent c o u r t a l s o contends t h a t t h e v o t e recorded on
contingent proposition number 3 presented with t h e 1972 C o n s t i t u t i o n
t o permit t h e l e g i s l a t u r e t o a u t h o r i z e gambling should be con-
s i d e r e d a s a "popular referendum" of t h e people t o e s t a b l i s h
gambling within the s t a t e of Montana and t h u s , impliedly, r e p e a l s
a l l p r o h i b i t i o n s a g a i n s t gambling c u r r e n t l y i n f o r c e and e f f e c t
within the s t a t e .
However, such a unique proposition f i n d s no support i n law
or i n fact. Proposition number 3 on t h e o f f i c i a l b a l l o t f o r t h e
June 6 , 1972, e l e c t i o n f o r t h e r a t i f i c a t i o n of t h e new C o n s t i t u t i o n
read :
"3A, FOR. allowing t h e people o r t h e l e g i s l a t u r e
t o a u t h o r i z e gambling,
" 3 ~ . AGAINST allowing t h e geople o r t h e l e g i s l a -
t u r e t o a u t h o r i z e gambling,
Proposition 3A passed, and thus included w i t h i n t h e new Constitu-
t i o n A r t i c l e 111, s e c t i o n 9 , which s t a t e s :
" A l l forms of gambling, l o t t e r i e s , and g i f t e n t e r -
p r i s e s a r e p r o h i b i t e d u n l e s s authorized by a c t s of
t h e l e g i s l a t u r e o r by t h e people through i n i t i a t i v e
o r referendum. I t
I n both t h e language of t h e b a l l o t and t h e adopted c o n s t i t u -
t i o n a l provision, i t i s c l e a r t h a t t h e r e must be two a c t i o n s t o
l e g a l i z e gambling w i t h i n t h e s t a t e : (1) t h e passage of t h e
c o n s t i t u t i o n a l provision found i n A r t i c l e 111, s e c t i o n 9 , h e r e t o -
f o r e c i t e d ; and (2) an a f f i r m a t i v e a c t of t h e people o r t h e l e g i s -
l a t u r e subsequent t o t h a t adoption. In the instant situation
respondent r e q u e s t s t h a t t h i s Court f i n d both a c t i o n s accomplished
by t h e s i n g u l a r v o t e of t h e people a t t h e e l e c t i o n f o r t h e r a t i f i -
c a t i o n of t h e c o n s t i t u t i o n . This was not contemplated by t h e
framers of the c o n s t i t u t i o n , t h e c o n s t i t u t i o n a l document i t s e l f ,
o r t h e b a l l o t on which t h e people voted.
The plain meaning of the language of a statute will be used
in construing its meaning, Section 93-401-16, R.C.M, 1947; State
ex rel. Cashmore v. Anderson, -Mont *-9
500 P.2d 921, 29 St.
Rep. 653; Anderson v. United States Civil Serv. Comm., 119 F,Supp.
567 (Mont. 1954), The opinions and speculation of the voters and
citizens of the state as to the effect of their vote are not
permitted to alter the clear meaning of the language employed,
By adoption of the new Constitution the people have authorized
the people or the legislature to permit gambling, Until such
time as the people or the legislature affirmatively act with the
intention to execute the authority granted by Article 111, section
9, Montana Constitution ,1972, gambling is prohibited.
This brings us to issue No, 2, The passage of the Constitu-
tion of Montana, 1972, and the actions of the Forty-third Legisla-
tive Assembly did not validate the 1937 amendment to what is now
section 94-2401, R.C.M. 1947, and further did not invalidate all
laws prohibiting gambling, in particular possession of gambling
equipment under section 94-2401.
On June 6, 1972, the people of Montana ratified the Consti-
tution of Montana,l972, as submitted to them by the Constitutional
Convention. (See State ex rel. Cashmore v, Anderson, Mon t *-,
500 P.2d 921, 29 St.Repe 653). As a contingent alternative issue
the people authorized Article 111, section 9 of the 1972 Constitu-
tion. The issue as it appeared on the ballot is set forth above.
Section 3 of the Adoption Schedule of the Constitution of Montana,
1972, set forth the manner of presenting proposition number 3. It
provided :
"1
() If separate issue 3A is not approved by a
majority of those voting at the election and if
the proposed Constitution is approved by the electors,
then section 9 of ARTICLE 111, GENERAL GOVERNMENT
shall be retained.
"2
() If separate issue 3A is approved by the electors
and if the proposed Constitution is approved by the
electors, then section 9 shall be deleted from ARTICLE
111, GENERAL GOVERNMENT and the followi.ng substituted
therefor: I Section 9. GAMBLING. All forms of gamb-
ling, lotteries, and gift enterprises are prohibited
unless authorized by acts of the legislature or by the
people through initiative or referendum,I 1 1
Section 1 of the Adoption Schedule, Constitution of Montana,
1972, provides:
"This Constitution, if approved by a majority of
those voting at the election as provided by the
Constitution of 1889, shall take effect on July 1,
1973, except as otherwise provided in sections 1
and 2 of the Transition Schedule. The Constitution
of 1889, as amended, shall thereafter be of no effect."
Thus, upon the effective date of July 1, 1973, the Constitu-
tion of Montana will no longer prohibit the legislature from
authorizing gambling, lotteries or gift enterprises. Until that
time the Constitution of Montana, 1889, is still in effect and
lotteries and gift enterprises are prohibited and cannot be
permitted by acts of the legislature.
The theory was presented to respondent court in cause No.
9033, that the transition schedule of the new Constitution coupled
with section 94-2401, R..C,M. 1947, permitted a limited form of
gambling. In essence, the theory is that the heretofore unconsti-
tutional provisions of section 94-2401 will be brought to life with
the new Constitution on July 1, 1973, since the legislature has not
acted to repeal the unconstitutional provisions.
We have already discussed the matter of the status of an
unconstitutional piece of legislation such as the so-called
"Hickey Law", (Chapter 153, Laws of 1937) , That amendment is
null and void and of no force and effect now or in the future.
The "Hickey Law" will not be resurrected by Section 6 of the
Transition Schedule of the new Constitution on July 1, 1973.
Section 6 of the Transition Schedule presupposes that the
laws which will be in force upon the effective date of the new
Constitution are those which are not contrary to or inconsistent
with such constitution and which are presently in force, The
"Hickey Law" is not presently in force. This interpretation is
consistent with case law throughout the United States dealing with
the effect of new amendments which permit something previously
prohibited or unconstitutional under previous provisions. While
most cases cited hereinafter deal with amendments to existing
constitutions, rather than the adoption of a new constitution, they
are applicable to the situation here,
A recent New Mexico case, Fellows v. Shultz, 81 N,M, 496,
469 P,2d 141, 146, discussed the effect of a constitutional
amendment upon an existing statute which was unconstitutional.
The court noted:
"1t is a well-established rule of constitutional
law that an unconstitutional statute is wholly
void from the time of its enactment and is not
validated by a subsequent constitutional change
which would allow the enactment of such a statute,
[Citing cases]".
A like result was found in Banaz v. Smith, 133 Cal. 102,
65 P. 309, 310, where the California court, in discussing the
effect of an amendment on an invalid statute, said:
"1f void from the beginning, the amendment to
section 6, art. 11, in 1896, did not give life
to such provisions. That would give the amend-
ment the effect af enacting laws instead of
merely authorizing the legislature to do so,
and it would be to enact a law to which no refer-
ence was made, and which the people in adopting
the amendment could not have had in mind. Such
is not the ordinary function of a constitutional
provision, and such effect will not be given to
it unless it is expressly so provided."
In speaking of a constitutional amendment permitting the
use of voting machines where not permitted before, the court
said in City of Little Rock v. Cavin, 238 Ark. 333, 381 S.W.2d
11It is a well recognized rule of constitutional
law that the adoption of a constitutional amend-
ment which merely permits the enactment of a
statute of a certain type does not, of itself,
validate such a statute which was void when en-
acted before the adoption of the constitutional
amendment, [Citing authorities 1. 11
Other cases to the same effect are: Jamison v. City of Atlanta,
225 Ga. 51, 165 S.E.2d 647; Fortson v. Clarke County, 97 Ga. App.
410, 103 S.E.2d 597; Northern Wasco County people's Utility Dist.
v. Wasco County, 210 Ore, 1, 305 P.2d 766; Commissioners of Roads
and Revenues of Fulton County v. Davis, supra; Plebst v. Barnwell
Drilling Co., 243 La. 874, 148 S.2d 584. See generally: Annotation,
171 A.L.R. 1070-1081.
A number of c a s e s supporting t h e proposition t h a t a new
c o n s t i t u t i o n does not r e s u r r e c t previously u n c o n s t i t u t i o n a l
s t a t u t e s can be found, The Supreme Court of N w J e r s e y i n Ex
e
p a r t e D Falco, 9 N , J .
e 236, 87 A.2d 707, 709, found t h a t an un-
c o n s t i t u t i o n a l amendment t o an e x i s t i n g law d e a l i n g with punish-
ment of v i o l a t o r s of bookmaking s t a t u t e s was not v a l i d a t e d by
adoption of a subsequent c o n s t i t u t i o n . The c o u r t s a i d :
"1t i s urged any c o n s t i t u t i o n a l d e f e c t i n t h i s
regard , i n t h e 1940 s t a t u t e , has been corrected
by t h e adoption of t h e 1947 C o n s t i t u t i o n , which
c o n t a i n s no l i m i t a t i o n on t h e L e g i s l a t u r e ' s
power t o i n c r e a s e o r diminish t h e p e n a l t i e s f o r
t h e enumerated offenses.
I I The argument i s without m e r i t , A s t a t u t e which
i s u n c o n s t i t u t i o n a l a t t h e time of i t s enactment
does not a c q u i r e a v a l i d s t a t u s simply by reason
of a subsequent amendment t o t h e b a s i c c h a r t e r o r
by t h e adoption of a new one. I n Washington
National I n s . Co, v. Board of Review, 1 N . J , 545, 6-4
A. 2d 443, 445 (1949), we s a i d : '* * the consti-
t u t i o n a l v a l i d i t y of l e g i s l a t i o n i n t h i s regard i s
t o be measured by t h e organic law i n f o r c e when t h e
l e g i s l a t i o n was adopted, except t o t h e e x t e n t t h a t
t h e l a t e r c o n s t i t u t i o n i s made r e t r o a c t i v e . 1 1 1
To t h e same e f f e c t see: S t a t e v. Hogan, 20 N.J.Super. 1, 89
A.2d 76; People ex r e l , Hanrahan v. Caliendo, 50 I11,2d 7 2 , 277
N,E,2d 319,
Based on t h e above a u t h o r i t y , i t i s c l e a r t h e "Hickey Law"
was n o t automatically r e s u r r e c t e d by t h e i n a c t i o n of t h e 1973
L e g i s l a t i v e Assembly nor w i l l i t be on J u l y 1, 1973,
Chapter 513, Session Laws of 1973, i s a general r e c o d i f i c a -
t i o n and r e v i s i o n of t h e Montana Criminal Code. Sections 94-
2401 through 94-2403, R.C.M. 1947, were renumbered by Chapter
513 b u t were otherwise unaffected. The new code i s e f f e c t i v e
January 1, 1974,
The renumbering of s e c t i o n s 94-2401 through 94-2403 d i d n o t
r e e n a c t t h e h e r e t o f o r e i n v a l i d provisions. The " ~ i c k e yLaw",
while s t i l l c a r r i e d by t h e c o d i f i e r i n t h e Revised Codes of
Montana, i s n e v e r t h e l e s s n u l l and void and has been s i n c e i t s
passage i n 1937. It cannot be r e s u r r e c t e d without a s p e c i f i c
amendment done under t h e a u t h o r i t y of A r t i c l e 111, s e c t i o n 9 ,
Constitution of Montana, 1972. An attempt to amend section
94-2401, R,C.M. 1947, by reference to that title only would
have been void under the provisions of Article V, section 25,
Constitution of Montana, 1889, which provides:
"No law shall be revised or amended, or the
provisions thereof extended by reference to
its title only, but so much thereof as is
revised, amended or extended shall be re-enacted
and published at length."
Also of note is the Criminal Law Commission's explanatory
comment with its Revised Proposed Montana Criminal Code of 1973,
which was introduced substantially as Senate Bill 109 and passed
to become law as Chapter 513, Session Laws of 1973. The comment
reads :
'I
The preceding substantive criminal code includes
nothing on the crimes of abortion, gambling,
lotteries and gun control because of the emotional
nature of these issues. It is assumed that the
existing law on abortion, gambling, lotteries and
gun control will be retained,"
Having considered the issues, we order that a writ of
supervisory control be issued directing respondent court to
vacate its order dismissing the Information in Cause No. 9033
in the district court of the second judicial district.
--
Associa stice
( concur:
0
t
fssociate Jus ices.