STATE EX REL GOULD v COONEY
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IN THE SUPREMECOURT OF THE STATE OF MONTANA STATE OF MONTANAEX REL., R. BUD GOULD, H. W. "SWEDE" HAMMOND, JERRY NOBLE, JOHN E. PHILLIPS, and BOB THOFT, Petitioners and Relators, v. OPINION MIKE COONEY, Secretary of State of the State of Montana; KIM HARRIS, Election Administrator and Clerk and Recorder of Lewis and Clark County, Montana, individually and as representative of the class of all election administrators and clerk and recorders of the State of Montana, and THE STATE OF MONTANA, and ORDER Respondents. This is an application declaratory judgment. and petition Petitioners Montana legislature ask this Montana. They defendants and identified as election "Treasure ballot. State a declaratory attempt by the respondents House This Bill judgment from is the Endowment." that legislature registered Court 19 for from 1 on otherwise 19 is to the and of the members and taxpayers preventing a referendum and relators House Bill refer are an injunction appearing proposition of injunction voters, allowing Petitioners to writ and relators and residents, of for the measure June 1992 known as the also ask for an unconstitutional people of Montana a "bill" which has not been subject to the veto power of the Governor of Montana. Responses Kim Harris, Lewis and by Mike Harris, to the application Cooney, timely all Court should claim for In Secretary the county this of State out the state the relief filing failure supported failure to properly to bring a case by for join the action which the and failure in a Supreme to state a can be granted. and all petitioners However, administrators, of and relators the throughout the state. meet the Rule 23(a), that the members of the class of Respondents M.R.Civ.P., through- instead they class named the administrators of the election as respondents. representative for by and Recorder, Cooney, jurisdiction, action, election State. to present assume original have been filed Treasurer/Clerk action parties, failure which of the necessary fashion, County Secretary to dismiss moves and serve and Clark and petition of serving of named Rim Harris simply all as election argue that administrators this requirement case does not for a class action are so numerous that joinder of all members is impracticable. Because we conclude, necessary matter shall for and that proceed this Court as described to assume original the petition for to the merits to the method of service more fully an injunction of this of process 2 matter. below, jurisdiction that it is in this should be denied, we We make no ruling as used in this case. In order stated to that three constitutional 2) assume elements issues that the case constitutional of making ex Greely v. rel. 833; Mont. Water 768 The ultimate basis of final ruling on the the question of Bill 19 and of the Montana. Montana tion vote of the used in Article urgency and (1984), 214 Government case can v. and emergency State Mont. 143, State 691 (1989), on the original relators Constitution the people. resolved petition referendum 235 rapidly a purely in would the jurisdiction assert that the of suggest does 10, referendum. 3 Article governor not as June this the legal 2 of include House primary judicial matter. VI, to Section sign referendum term a unanswered identified a legislative that leave interests in of Delaying approaching and submission Section issues on measure requires They VI, be constitutional construction. and the and are constitutional Therefore, accept authorizing involved; statutory State of this application appear Petitioners that of that inadequate. which importance statutory we questions has 1) are process Local in whether economy, are appeal Court issues statewide in These importance 3) Court 327. major will normal this met. legal and Bow P.2d be statewide pure the Butte-Silver 398, ballot major construction; exist jurisdiction, must involves factors P.2d original 10, legislato "referendum" a legislative the as In Court resolving applies rules, disputes the rules the intent and must first used. of constitutional statutory of the framers be determined Butte-Silver Article of VI, construction, Under construction. of the Constitution from the plain this these is controlling language of the words Bow, 768 P.2d at 330. 10, of the Montana Constitution Section provides: Veto power. Each bill passed by the legislature, (1) except bills proposing amendments to the Montana constitution, bills ratifying proposed amendments to the United States constitution, resolutions, and initiative and referendum measures shall be submitted to the governor for his signature. [Emphasis added.] Article III, Section 5, of the Montana Constitution provides that: [a] referendum shall be held either upon order bv the lesislature or upon petition signed by at least five percent of the qualified electors in each of at least one-third of the legislative representative districts. [Emphasis added.] We conclude that "referendum Constitution means referendum. The plain Constitution referendum makes measure Petitioners measure and, therefore, However, it legislative language clear and of these that relators cannot as described Article claim 19 is III, be submitted in the sections legislation also 4 the Montana initiative of the Montana calling for the referendum an appropriations Section General's a by the governor. that to the people Attorney in and to be signed as House Bill under as used referendum is not required identified Constitution, both measures" 5, of measure the Montana as a ballot ballot issue. statement fiscal note, permanent this the trust "measure redirects to a treasure measure is not Section coal state 13-27-310(2), severance endowment an appropriation of tax trust." from On its the face, money. MCA, provides that: The secretary of state shall transmit a copy of an act referred to the people or a constitutional amendment proposed by the legislature and a copy of the form in which the issue will appear on the ballotto the attorney general no later than 6 months before the election at which the issue will be voted on by the people. Petitioners and passed by the election at relators legislature which ballot, and was General less than be removed argue from However, less the the because than House months before six legislature therefore six that, ordered necessarily months ballot 5 l-2-102, before it be Bill the 19 was special placed on Attorney submitted to the election, the measure the as violative of MCA, provides § 13-27-310(2), the must MCA. that: [i]n the construction of a statute, the intention of the legislature is to be pursued if possible. When a general and particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control a general one that is inconsistent with it. House place time this Bill 19 specifically referendum as the June legislature 1992 possesses Section 5, have not alleged of the on a special primary the election election. authority Montana that directs to do so, held under Petitioners steps 5 ballot As discussed Constitution. any procedural Secretary of State to at the same above, the Article III, and relators have been disregarded as a result to time of the the Attorney element their shortened did not to Bill 19 was delivered the statement of appear general IT of intent IS between submission and the General application measure time June 1992 election. prevent this petitioners Court to the June set forth ORDERED that nearly intent of in 1992 ballot at the three controls § 13-27-310(Z), application from months day of May, 6 delaying after House that Bill 19 that this over the statement MCA. for an 1992. Chief the We conclude State. House measure Further, DENIED. DATED this this and relators Secretary particular on the for of Just#'e injunction is Justice Karla I opinion. application M. Gray concur in Under the specially concurring: practical effect these and petition circumstances, of I the would majority have William E. Hunt, dismissed as untimely. Justldes Justice order Sr., did not 7 participate. I AA and the
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