No. 13100 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1975

STATE OF MONTANA ex rel, GLEN BENNICK, Petitioner,

THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, and THE HONORABLE C. B, SANDE, aspresidingJudge thereof, Respondents.

ORIGINAL PROCEEDING: Counsel of Record

### : For Petitioner: Michael

### J. Whalen, Billings, Montana James J. Sinclairargued, Billings, Montana ForRespondents

### : Hon. Robert 

### L. Woodahl, Attorney General, Helena,

Montana John

### F. North, AssistantAttorney General, argued,

Helena, Montana Harold F. Hanser, CountyAttorney, Billings, Montana Thomas C. Honzel argued, Helena, Montana Diana S. Dowling argued, Helena, Montana

Submitted: July

### 30, 1975

Filed: 

### .y,ipjMr. JusticeWesley Castles delivered the Opinion of the Court.
This is an originalproceeding before this Courtwhich began as a petition for a writ of supervisory control. Upon ex parte presentation this Court ordered that petitioner refile the action seeking declaratory judgment and naming as parties the following: the YellowstoneCounty Jury Commission, the District Court of Yellowstone County and its three judges, the Montana Attorney General, and the LegislativeCouncil. Additionally Montana's CountyAttorneys Association appeared as a respondent. The action seeks an interpretation of Chapter 298, 1975 Session Laws (SenateBill 161),which amends sections 93-1301and 93-1402,R.C.M. 1947,providing for qualifications of jurors and method of selection. Answers, returns and briefs were filed and oral argumenthad. Chapter 298 amended section 93-1301to provide that a person is competent to act as a juror if that person is a registered elector whose name appears on the most recent list of all registered electors as prepared by the county registrar. Former requirements were repealed. Chapter 298 amended section 93-1402 to provide that persons selected for jury duty will be taken from themost recent list of registered electors, rather than the last assessment roll. The effective date of Chapter 298 was July 1, 1975. Theproblem arises because section 93-1401,R.C.M. 1947, provides the jury commission of each county shallmeet on the second Monday of December of each year, for the purpose of making a list of persons to serve as trial jurors for the ensuing year. Since the effective date of July 1, 1975 applies, the argument is that between July 1, 1975 and December 8,1975, therewill be no list of eligible jurors. This argumentpresupposes that the list prepared in December 1974 is no longer valid. Then theargument goes on that Article 11, Section 24 of the 1972Montana Constitutionguarantees tl-eright to a speedypublic trial to an impartial jury;and thus between July 1 and December 8, 1975,
no such trial could be had. We hold that Chapter 298 is constitutional. We interpret Chapter 298 tomean that the various county jury selection commissions shallmeet as soon as possible after July 1, to prepare new lists of eligible jurors from the current county voter registration lists to serve as jurors. This interpretation ismade consistentwith the intent of the legislatureand in keeping with this Court's rulemaking power in matters of practice and procedure underArticleVII, Section 2(3), Constitution. "'It isboth a common-lawand a statutory rule of construction of statutes that the intention of the Legislaturemust be discovered, and, if possible, pursued."' Statev. Smith, 57 Mont. 563, 574, 190 P. 107 (1920). 

### " 

## * * * however, this Court ispledged to reconcile conflicting statutory provisions and make them operative in accordance with the legislative intent, insofar as it is possible to do so." Cottinghamv. State Board of Examiners, 134Mont. 1, 25, 328 P.2d 907 (1958). "Everypresumption must be indulged in favor of the validity [of a statute], so as to make it operative, if feasible." Ex parte Naegele, 70Mont. 129, 135, 224 P. 269 (1924); State ex rel. Keast v. Krieg, 145Mont. 521, 402 P.2d 405 (1965).
"And the law imposesa duty upon the judicial department to pursue the legislative intent so far as possible.

## * * 

## * It is our duty to reconcile the statutes, if possible, and make them operative." State ex rel. Ewald v. Certain Intoxicating Liquors, 71Mont. 79, 83, 227 P. 472, (1924). As expressed in the hearings record, the intent of the legislature in enacting Chapter 298 was to replace a jury selection system which it feared was constitutionally infirm. Al-1sections of what is now Chapter 14 of Title 93,Revised Codes of Montana,were originally enacted aspart of the same act in 1895. Section 93-1401provided the first meeting of the jury selection officers was to take place within ten days after the code took effect. The section also states that if the jury selection officers fail tomeet on the day specified,they must meet as soon thereafter as practicable. This, it seems to
us and we so hold,means that when a new and different system for juror qualifications is established--viz, registered voters as against assessment rolls--then the jury selection officers shall meet as soon as practicable to make the new list. That this imposes a large chore on the jury selection officers in each of 56 counties is regrettable,but necessary. Itwas suggested during oral argument that this Courtwould be legislatingby supplying a meeting and selection date other than the 2nd Monday in December. If this be so, the Court clearly has that power as rulemaking power under Article VII, Section 2(3),1972Montana Constitution. In State ex rel. Henningsen v. District Court, 136 Mont. 354, 348 P.2d 143, this Court approved the procedures whereby a clerical error in listing prospective jurors by the jury commission resulted in the necessity of including 15,000 additional
names. The Court struck down the failure to insert the names in capsules,but approved the procedures correcting the jury listseven though done long after the second Monday in December of the year 1958. While the Court requires substantial compliance with jury selection statutes; that is,no material deviations or departures are permitted, the date of selection of the list isnot of such importanceas to render the jury list unlawful
or improper. We hold then that county jury selection officers shall meet as soon as practicable to make a list of persons to serve as trial jurors for the remainder of 1975 from themost recent list of registered electors in the county and that Chapter 298, 1975Montana Session Laws, does not violate Article 11, Section 24, 1972 Montana Constitution. This opinion shall constitute a declaratory judgment. A copy of this opinion shall be served upon the parties and a copy mailed by the clerk of this Court to the clerk of the district court of the 56 Montana counties.

, /chief Justice