No. 13100 

IN THE 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, as presiding Judge thereof, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record : 

For Petitioner: 

Michael J. Whalen, Billings, Montana 

James J. Sinclair argued, Billings, Montana 

For Respondents : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

John F. North, Assistant Attorney General, argued, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Thomas C. Honzel argued, Helena, Montana 

Diana S. Dowling argued, Helena, Montana 

Submitted: July 30, 1975 

Filed: .y,ipj 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an original proceeding before this Court which 

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 Yellowstone County Jury Commission, the District 

Court of Yellowstone County and its three judges, the Montana 

Attorney General, and the Legislative Council. Additionally 

Montana's County Attorneys Association appeared as a respondent. 

The action seeks an interpretation of Chapter 298, 1975 

Session Laws (Senate Bill 161), which amends sections 93-1301 and 

93-1402, R.C.M. 1947, providing for qualifications of jurors and 

method of selection. Answers, returns and briefs were filed and 

oral argument had. 

Chapter 298 amended section 93-1301 to 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 Former requirements were repealed.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 the most recent list of 

registered electors, rather than the last assessment roll. 

The effective date of Chapter 298 was July 1, 1975. 

The problem arises because section 93-1401, R.C.M. 1947, 

provides the jury commission of each county shall meet 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, there will 

be no list of eligible jurors. This argument presupposes that the 

list prepared in December 1974 is no longer valid. Then the 
argument goes on that Article 11, Section 24 of the 1972 Montana 

Constitution guarantees tl-e right to a speedy public 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 to mean that the various county jury selection commissions shall meet 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 is made 

consistent with the intent of the legislature and in keeping 

with this Court's rule making power in matters of practice and 

procedure under Article VII, Section 2(3), Constitution. 

"'It is both a common-law and a statutory rule of 

construction of statutes that the intention of the 

Legislature must be discovered, and, if possible, 

pursued. "' State v. Smith, 57 Mont. 563, 574, 

190 P. 107 (1920). 

" * * * however, this Court is pledged to reconcile 

conflicting statutory provisions and make them 

operative in accordance with the legislative intent, 

insofar as it is possible to do so." Cottingham v. 

State Board of Examiners, 134 Mont. 1, 25, 328 P.2d 

907 (1958). 

"Every presumption must be indulged in favor of the 

validity [of a statute], so as to make it operative, 

if feasible." Ex parte Naegele, 70 Mont. 129, 135, 

224 P. 269 (1924); State ex rel. Keast v. Krieg, 

145 Mont. 521, 402 P.2d 405 (1965). 

"And the law imposes a 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, 71 Mont. 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-1 sections of what is now Chapter 14 of Title 93, Revised Codes of Montana, were originally enacted as part of the 

same act in 1895. Section 93-1401 provided 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 to meet 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. 

It was suggested during oral argument that this Court would 

be legislating by supplying a meeting and selection date other 

than the 2nd Monday in December. If this be so, the Court clearly 

has that power as rule making power under Article VII, Section 

2 (3), 1972 Montana 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 lists 
even 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 

is not of such importance as 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 the most recent 

list of registered electors in the county and that Chapter 298, 

1975 Montana 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