NO, 12171 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 71 

STATE ex re1 KEN NYBO, 

Petitioner, 

THE DISTRICT COURT OF THE FIRST JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND 

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. 

Stanley M. 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: 2 0 r,gV A. . 
PER CURIAM: 

This is an original proceeding seeking a writ of prohibition directed to the district court of the first judicial 

district, Judge Fall presiding. On November 15, 1971, a petition 

was filed in this Court seeking to set aside an order denying a 

motion to quash a writ of mandate issued by Judge Fall. 

Petitioner Ken Nybo had been named defendant in an 

application for an alternative writ of mandamus in cause No. 35351, 

filed October 26, 1971, in the respondent district court in Lewis 

and Clark County. The application for an alternative writ of 

mandamus was by Harry L. Billings who sought mandamus to inspect 

the books of one "Save Our State Committeef1 (hereinafter referred 

to as SOS), under the provisions of section 94-1431(4), R.C.M. 

1947. Billings was designated plaintiff and applicant, and it 

it was 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 to Sales ax" (hereinafter referred to as 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 at the election on November 2, 1971. 

Referendum !I68 was provided for by the 1971 Montana 

Revenue Act, whereby the legislature enacted into law a 40% 

income tax surtax effective on passage and approval of the Act, 

It then referred to the 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% sales and 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 difference being in who 

would pay. It would be a gross understatement to say that such 

a choice would be controversial. The legislature passed along 

this choice to the people at a special election on No.vember 2, 

1971. The Act called this special election a "special general 

election". 

In the district court mandamus action, the prayer for 

relief asked that an alternative writ of 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. 

Ah alternative 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 service had not been had, but asserted 

that defendant Nybo was "hiding out". After a brief hearing 

the following colloquy occurred: 

"COURT: Well, you are an officer of this Court. 

If you present that to be the fact, I will accept 

it as such. Prepare a Preemptory [sic] Writ of 

such a nature that if necessary, why the Sheriff 

may force his entry into the office and seize whatever is there, and Mr. Nybo I want brought forthwith 

before this Court to explain---Was he ever served? 

"MR. OLSEN: No, sir, he was not, and I submit that he 

has been evading us. 

I I COURT: Well, under the circumstances prepare an 

appropriate paper so that he will be forthwith 

brought before this court to explain his action and 

be subject to interrogation by you in open court. 

That's the way we do that ." 
It [~Ihe way we do that" became what is entitled "Peremptory Writ of anda am us" which is in part as follows: 

"THE STATE OF MONTANA to KhT 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 State Committee, herein after referred to as 

S.O.S., an unincorporated association formed for the 

purpose of promoting the passage of Referendum No. 68 

(the sales tax) which will appear on the ballot of the 

November 2, 1971, special general 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 to be under the name 

of KEN NYBO, S.O.S., Helena, Montana, and that address 

was found to be Room 305 of the Union Bank Building, 

Helena, Montana, and, 

"WHEREAS, this court has taken special note of 

Section 94-1431, Subsection (4), RCM1947: as follows, 

"' (4) the books of account of every treasurer of 

any political party, committee, or organization, 

during an election campaign, shall be opened 

a t a l l reasonable office hours to the inspection 

of the treasurer and chairman of any opposing politica 1 [party] or organiza tion for the same electoria 1 

district; and his right of inspection may be enforced by Writ of Mandamus by any court of competent jurisdiction. ' 

"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, 

at his offices at Helena, 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 

to open 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 to open the books 
to said plaintiff, HARRY L. BILLINGS, upon 

regular and orderly demand therefore [sic] at the 

ordinary and regular hours of business on 

the 26th day of October, 1971, at Room 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 Alternate Writ of 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 speedy justice 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, at any 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 to the office of the S.O.S. Committee at Room 

305 of the Union Bank Building and there demand oL 

anyone present or if no 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 to the 

above entitled court .It 

The foregoing rather interesting document would appear 

be a judgment, a search warrant, 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 1 defendant's counsel filed a motion to quash 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 to quash was filed 

and the respondent district court summarily, without even reading 
or hearing its contents, denied the motion and proceeded to allow 

plaintiff's counsel to cross-examine defendant Nybo and force 

production of the books. Counsel for Nybo made several objections, 

tried to offer some evidence, and asked to be heard; all in vain. 

He was summarily denied and the hearing terminated by the court 

announcing: "Court is in recess." 

The foregoing shows a lack of procedural due process and 

a lack of fundamental fairness to the extent that the entire matter 

is void. But, it did not even stop there! On November 5, the 

same district judge awarded costs, as well as attorney fees in 

the amount of $500, against Nybo. It is patently obvious that such 

costs and attorney fees awarded as a result of a void proceeding 

cannot stand. 

However, the instant petition for a writ of 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 to promote passage of Referendum #68 and 

thus was legislative in nature and not political within the sense 

and meaning of section 94-1431(4), R.C.M. 1947. 

Petitioner further alleges the respondent district court's 

denial of the motion to quash may have been a determination which 

would render petitioner and members and contributors to SOS liable 

to prosecution 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 to show cause requiring the 

district court to quash the writ previously granted therein, or 

appear to show cause why it was not done. The Court also ordered 

copies of the papers served on the Attorney General. The Amicus 
Curiae brief of the Attorney 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 to decide the question. 

In response to our 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 to make any holding to indicate whether 

or not SOS and its contributors were in violation of the Corrupt 

Practices Act. 

As to this 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 corI I porations paying or contributing in order to aid 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 1 party or organization"; unless, the legis la ture 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 

I I legislative" in character. State ex rel. Hay v. Alderson, 49 

Mont. 387, 407, 142 P.210; Fitzpatrick v. State Board of Examiners, 

105 Mont. 234, 240, 70 P.2d 285. When the legislature refers a 

measure to the 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. all may have views and cannot constitutionalLy 

be restricted from expressing their views. 
In the context of the Corrupt Practices Act, section 94-1444, R. 

C.M. 1947, the words "political party or organization" do not 

include the legislature's own processes nor such groups. 

The Ohio Supreme Court in 1939, considered this matter 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 to determine the legality 

of a corporation's contributions to a committee organized to promote 

the adoption of certain issues which were submitted to the voters 

at a general election. 

The statute invol-ved, section 3599.03, Ohio Revised Code, 

provided in part pertinent to this action: 

11 (A) No corporation engaged in business in this 

state shall, directly or indirectly, pay, use, offer, 

advise, consent, or agree to pay or use the corporation's money or property [a] for or in aid of a political party, committee or organization * JC *." 

(Emphasis supplied) 

In consideration ot the issue, the Ohio court stated: 

"It is obvious that, in the above-quoted * * * portion 

1 of the statute appearing after [a], the word political' modifies not only 'party' but also the words 

1 committee, or organization.' The words 'political 

party' have a well understood ordinary meaning. Those 

words describe an association of individua3.s whose 

primary purposes are to promote or accomplish elections 

or appointments to public offices, positions or jobs. 

Although the word 'political' may have a very broad 

meanding, its meaning may be considerably narrowed where 

it is thus used to modify the word 'party! See Heidtman 

v. City of Shaker Heights, 163 Ohio St. 109, 126 N.E.2d 138. 

Obviously, in referring to 'a political party, committee, 

or organization' in this statute, the General Assembly 

intended by the words 'committee, or organization; to 

refer only to a committee or organization which is an 

adjunct of a political party or an association formed 

for substantially the same purposes or performing substantially the same functions as a political party. 11 

The Ohio court then concluded: 

'1 Our conclusion is that respondent corpora tion could 

lawfully contribute to a committee organized and conducted merely for the purposes of advocating the 

adoption of a constitutional amendment and the passage 

or bond 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 set aside and the entire 

matter dismissed, with each party to pay its own costs.