NO, 12171 INTHE SUPREME COURT OF THE STATE OF MONTANA 19 71

STATE ex re1KEN NYBO, Petitioner,

THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF LEWIS AND CLARK, and the HONORABLE VICTOR H. FALL, JUDGE, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Petitioner: Kendrick Smith argued, Butte, Montana. StanleyM. Doyle appeared, Polson, Montana, For Respondents: Arnold H. Olsen argued, Helena, Montana. For Amicus Curiae: Hon, Robert L. Woodahl, Attorney General, Helena,

Montana.

Submitted: December 21, 1971

Filed: 

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### r,gV
A..PER CURIAM: This 

### is an originalproceeding seeking a writ of prohibition directed to the districtcourt of the firstjudicial district, Judge Fall presiding. On November 15, 1971, a petition

was filed in this Court seeking tosetasidean order denying a motion toquash a writof mandate issued by Judge Fall. Petitioner Ken Nybo had been named defendant inan application foranalternativewritof mandamus in cause No. 35351, filed October 26, 1971, in the respondent district court inLewis and Clark County. The application for an alternativewritof mandamus was by Harry L. Billings who sought mandamus toinspect the books of one "Save Our StateCommitteef1(hereinafter referred toas SOS), under the provisions of section 94-1431(4), R.C.M. 1947. Billings was designated plaintiff and applicant, and it itwas alleged that Nybo, designated defendant, was chairman of SOS and had custody of the "booksf1. The application alleged that Billings was an incorporator, director and secretary-treasurer of an organization called "Citizens Opposed toSales

### ax" (hereinafter referred toas COST), and thus entitled to inspect the books of SOS. It was alleged that COST and SOS were opposing organizations concerned with defeating or passing Referendum !I68 atthe election on November 

### 2, 1971. Referendum !I68 was provided forby the 1971Montana Revenue Act, whereby the legislature enacted into law a 40% income tax surtax effective on passage and approval of theAct, It then referred tothe people a measure with two questions: (1) For reduction of the already imposed 40%income tax surtax to 10% and for enactment of a 2%salesand use tax; or 

### (2) against the reduction of the 40%income tax surtax to 10%and against enactment of a 2% sales and use tax.In other words, the legislature imposed an additional tax and gave the people a choice of continuing that tax or substituting a new one; the only apparent differencebeing inwho would pay. It would be a gross understatement to say that such a choicewould be controversial. The legislature passed along this choice tothe people ata special election on No.vember 2, 1971. The Act called this special electiona "special general election". In the district court mandamus action, the prayer for relief asked that an alternativewritof mandus be issued returnable within a very brief period, compelling defendant to open the books of SOS to inspection; that the applicant have costs and an attorney fee. Ahalternative

### writ of mandamus was issued by the respondent court on October 26. It was returnable on October 28 at 10 a.m. It was never served on defendant Nybo. Nonetheless, on the return day, the respondent court heard testimony by plaintiff Billings and statements by his counsel who admitted servicehad notbeen had, but asserted that defendant Nybo was "hiding out". After a brief hearing the following colloquy occurred: "COURT: Well, you arean officer of this Court. If you present that tobe the fact, 

### I willaccept it as such. Prepare a Preemptory [sic]Writof such a nature that ifnecessary, why the Sheriff may force his entry into the office and seizewhatever is there, and Mr. Nybo I want brought forthwith before this Court toexplain---Was he ever served? 

### "MR. OLSEN: No, sir, he was not, and I submit that he has been evading us.

IICOURT: Well, under the circumstances prepare an appropriate paper sothat he willbe forthwith brought before this court toexplain his action and be subject to interrogation by you inopen court. That's theway we do that

# ."It[~Ihe way we do that" became what is entitled "PeremptoryWrit of 

### anda am us" which is in part as follows: "THE STATE OF MONTANA toKhT NYBO, Chairman of the Save Our State Committee, Helena, Montana, Greeting:

11

WHEREAS, the above entitled came on regularly for hearing on the 28th day of October, 1971, at 10:OO A.M. and, "WHEREAS, the applicant and plaintiff, HARRY L. BILLINGS, was regularly and duly sworn and testified, and, "l.JHEREAS, this court has duly found and determined that the defendant, KEN NYBO, is the Chairman of the Save Our StateCommittee, herein after referred toas S.O.S., an unincorporated association formed for the purpose of promoting the passage of Referendum No. 

### 68 (the sales tax) which willappear on the ballot of the November 2, 1971, specialgeneral election, and, "WHEREAS,this court has duly found and adjudged that the defendant, KEN NYBQ, Chairman of S.O.S., has advertised urging passage of the Sales Tax Referendum and has represented the offices tobe under the name of KEN NYBO, S.O.S., Helena, Montana, and that address was found tobe Room 305 of the Union Bank Building, Helena, Montana, and, "WHEREAS, this court has taken specialnote of Section 94-1431, Subsection (4), RCM1947: as follows, 

## "'(4) thebooks of account of every treasurer of any political party, committee, or organization, during an election campaign, shallbe opened a t a l lreasonable officehours tothe inspection of the treasurer and chairman of any opposing politica1 [party]or organization for the same electoria1 district; and his right of inspection may be enforced by Writ of Mandamus by any court of competentjurisdiction.

## ' "wI.IEREAS, this court has duly found and adjudged that the books of account are in the possession and under the direction of said defendant Chairman, KEN NYBO, athis offices atHelena, Montana, aforesaid, and, "WHEREAS, this court has duly found and adjudged that the defendant, KEN NYBO, and the organization, S.O.S. Committee, have failed, refused, and neglected toopen to public inspkction as provided by law, and, "wHERUS, this court has duly found and adjudged that the organization S.O.S. Committee and the defendant, KEN NYBO, failed, refused, and neglected toopen the bookstosaid plaintiff, HARRY L. BILLINGS, upon regular and orderly demand therefore [sic] atthe ordinary and regular hours of business on the 26th day of October, 1971, atRoom 

### 305, Union Bank Building, Helena, Montana, and, "WHEREAS,this court has duly found and adjudged that the defendant, KEN NYBO, and the organization, S.0.S. Committee, Helena, Montana, have evaded the duly and regularly issued process, namely an AlternateWritof Mandate issued by the above entitled court, upon the application duly verified by the plaintiff, HARRY L. BILLINGS, "NOW THEREFORE, this court, being willing that speedyjustice be done in this case on behalf of him, the plaintiff and applicant, does command you, DAVE MIDDLEMAS, Sheriff, Lewis and Clark County, State of Montana, to forthwith seek out KEN NYBO, Chairman S.O.S. Committee, atany place that he can be found and bring him torthwith before the above entitled court; "AND, you, Sheriff Middlemas, are further ordered and this court does command you that you go tothe office of the S.O.S. Committee atRoom 

### 305 of the Union Bank Building and there demand oL anyone present or ifno one is present that you do enter that room and that you seize the books of account of that political committee, S.O.S. Committee and you bring such books of account forthwith tothe above entitled court.It The foregoing rather interesting document would appear be a judgment, a searchwarrant, a warrant of arrest, a body attachment---all without due process or any process of law; defendant not having been served nor the court having obtained jurisdiction over him. On the following day, October 29, counsel for defendant Nybo (apparently now a criminal deiendant also) appeared. On November 1defendant's counsel filed a motion toquash on the grounds that the "extraordinary writ of mandate was improvidently entered". A brief in support of the motion was also filed. On that same day, November 1, there appears in the court records another transcript, wherein the motion toquash was filed and the respondent district court summarily, without even readingorhearing 

### its contents, denied themotion and proceeded toallow plaintiff's counsel tocross-examine defendant Nybo and force production of the books. Counsel forNybo made several objections, tried to offer some evidence, and asked tobe heard; allinvain. He was summarily denied and thehearing terminated by the court announcing: "Court is inrecess." The foregoing shows a lack of procedural due process and

a lack of fundamental fairness tothe extent that the entirematter is void. But, it did not even stop there! On November 

### 5, the

same districtjudge awarded costs, aswell as attorney fees in the amount of $500, against Nybo. It is patently obvious that such costs and attorney fees awarded asa result of a void proceeding cannot stand. However, the instant petition for a writof prohibition goes further. It seeks, in effect, a ruling not only that the proceedings were void, but that they were void because the organization SOS is not within the purview of section 94-1431(4), R.C.M. 1947. In this regard petitioner asserts that SOS was a bipartisan organization topromote passage of Referendum #68 and thus was legislative innature and not politicalwithin the sense and meaning of section 94-1431(4), R.C.M. 1947. Petitioner further alleges the respondent district court's denial of themotion toquashmay have been a determinationwhich would render petitioner and members and contributors toSOS liable toprosecution under the provisions of section 94-1469 or section 94-1470, R.C.M. 1947, both of which contain criminal sanctions. This Court issued an order toshow cause requiring the district court toquash the

### writpreviously granted therein, or appear to show causewhy it was not done. The Court alsoordered copies of the papers served on theAttorney General. The AmicusCuriae brief of theAttorney General takes no position on the issue of whether the organization SOS 

### is a "political" organization subject to the so-called Corrupt Practices Act. The Attorney General does, however, urge this Court todecide the question. In response toour order to show cause, the respondent district court appeared by answer essentially asserting that since the records of SOS were inspected, the matter is moot. Further, it did not intend tomake any holding to indicatewhether or not SOS and its contributorswere inviolation of the Corrupt Practices Act. As tothis phase of the instant petition, we have examined the Corrupt Practices Act, particularly as to section 94-1444, R.C.M. 1947, which contains a prohibition against corII porations paying or contributing in order toaid or promote the interests, success, or defeat of any political party or organization.II A referendum measure of the legislature is not such as would be classed as the "interests, success, or defeat of any politica

### 1party or organization"; unless, the legislature classes itself as a "political party or organization1'---which it is not, in the sense of the terms used. This Court has long held that a referendum is entirely

IIlegislative" in character. State ex rel. Hay v. Alderson, 49 Mont. 387, 407, 142 P.210; Fitzpatrickv. StateBoard of Examiners, 105Mont. 234, 240, 70 P.2d 285. When the legislature refers a

measure tothe people, it is seeking the people's voice singly and collectively, by individuals or groups. For instance, labor unions, league of women voters, chambers of commerce, newspaper editors and reporters. allmay have views and cannot constitutionalLy be restricted from expressing their views.In the context of theCorrupt Practices Act, section 94-1444, R. C.M. 1947, thewords "political party or organization" do not include the legislature's own processes nor such groups. The Ohio Supreme Court in 1939, considered thismatter in

a similar situation concerning a tax levy. State ex rel. Corrigan

v. Cleveland-Cliffs Iron Co., 169 Ohio St. 42, 157 N.E.2d 331,333, 336, involved an action in quo warranto todetermine the legality of a corporation's contributions toa committee organized topromote theadoption of certain issues which were submitted tothevoters ata general election. The statute invol-ved, section 3599.03, Ohio Revised Code, provided in part pertinent tothis action:

11(A) No corporation engaged inbusiness in this stateshall, directly or indirectly, pay, use, offer, advise, consent, or agree topay or use the corporation's money or property [a] for or inaid of a political party, committee or organization

# * JC 

### *." (Emphasis supplied) In consideration otthe issue, the Ohio court stated: "It is obvious that, inthe above-quoted 

# *

# ** portion 1 of the statuteappearing after [a], theword political' modifies not only 'party' but also the words 1committee, or organization.' The words 'political party' have a well understood ordinary meaning. Those words describe an association of individua3.s whose primary purposes are topromote or accomplish elections or appointments topublic offices, positions orjobs. Although the word 'political' may have a very broad meanding, 

### its meaning may be considerablynarrowed where it is thus used tomodify the word 'party! See Heidtman v. City of Shaker Heights, 163 Ohio St. 109, 126 N.E.2d 138. Obviously, inreferring to 'a political party, committee, or organization' in this statute, the GeneralAssembly intended by the words 'committee, or organization; to refer only toa committee or organizationwhich is an adjunct of a political party or an association formed for substantially the same purposes or performing substantiallythe same functions as a political party. 11 The Ohio court then concluded:

'1

Our conclusion 

### is that respondent corporation could lawfully contribute toa committee organized and conducted merely for the purposes of advocating the adoption of a constitutionalamendment and the passage orbond issues and tax levies." (Emphasis supplied)We find then that the Corrupt Practices Act does not

cover the situation here and no further discussion is necessary. By what we have said heretofore, we hold that the orders of the district court referred to are setaside and the entire matter dismissed, with each party to pay its own costs.