No. 80-228 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

NORTH CENTRAL SERVICES, INC., Plaintiff and Respondent,

-VSKENNETH M. HAFDAHL, Defendant and Appellant.

Appeal from: District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable B. W. Thomas, Judge presiding.

Counsel of Record: For Appellant: Morrison, Ettien and Barron, Havre, Montana Chris R. Young argued, Havre, Montana For Respondent: Arnold H. Peterson, Havre, Montana Daniel R. Carpenter, Havre, Montana For Amicus Curiae: Hon. Mike Greely, Attorney General, Helena, Montana Rick Larsen and John Maynard argued, Asst. Atty. Generals, Helena, Montana

Filed: Submitted: January 12, 1981 Decided: March 11, 1981.



## MAR

## 121988Mr. JusticeFrank B. Morrison, Jr., delivered the Opinion of the Court. This isan appeal from a DistrictCourt judgment which upheld the constitutionality of the small claims procedure, Title 25, Ch. 35, MCA. The DistrictCourt, after sustaining constitutionality of the act, entered judgment infavor of theplaintiff for $678.25. This case was originally tried before a justice of the peace, sittingwithout a jury. Both partieswere present, but neither was represented by legal counsel. The justice of thepeace found infavor of plaintiff, and defendant appealed to the District Court. Defendant attempted to appear intheDistrictCourt through counsel but was denied thatopportunityby the trialjudge. A trialde novo is prohibited by theprovisions of the small claims procedure; and therefore, the trial court reviewed only questions of law. The judgment entered injustice courtwas affirmed. The issuespresented on appeal are: (1)Whether the small claims procedure injustice court, pursuant to Title 25, Ch. 35, MCA, unconstitutionally deprived defendant of the right tocounsel? (2)Whether the small claims procedure injustice court, pursuant toTitle25, Ch. 35, MCA, unconstitutionallydeprived defendant of the right to a trialby jury? (3)Whether the provision thata justice of thepeace may assista party inthe preparation of hispleading, pursuant to section 25-35-201 (2),MCA, unconstitutional.ly deprives the opposing party of due process? (4)Whether, if part of theprocedure isunconstitutional, thebalance can stand? Part 1 The small claims procedure makes no provision for a jury trial. Section 25-35-105(2), MCA, provides that aparty may notbe represented by an attorney unless all parties arerepresented by an attorney. Section 25-35- 403(2),MCA, prohibits a trialde novo inthe DistrictCourt and provides that appeals shallbe limited toquestions of law. The effectof the statutoryprovisions, above referred to, is to deny a jury trialand todeny counsel atall stages of the fact-finding process. The Montana Constitution is silenton right tocounsel incivil cases, but nearly allcourtshave held that such right isimplicit indue process guarantees. For example

see Prudential Ins. Co. v. Small Claims Court (1946), 76 Cal.App.2d 379, 173P.2d 38; Foster v. Walus (1959), 81 Idaho 452, 347 P.2d 120. Wehold that inMontana the right tocounsel isimplicitwithin constitutional guarantees of due process, and the right tocounsel must existatsome stageintheproceeding. The questionof whether the right tocounsel must be afforded ina small claims courtwas specifically treated by the Idaho Supreme Court inFoster 

### v. Walus, supra. The Idaho small claims procedure, unlike the presentprocedure inMontana, afforded a trialde novo with counsel on appeal. In answering the argument thatcounsel could notbe denied inthe small claims court, the Idaho Supreme Court said: "A plaintiff inthe smallclaims court, by knowingly commencing hisaction therein cannot thereafter object to the denial of counsel; and a defendant (as was appellant) may availhimself of the right to appeal to theDistrict Court ina trial de novo with assistanceof counsel therein. Such satisfies the due process requirement." 347 P.2d at125. The same resultwas reached inPrudential Ins. Co. of America v. Small Claims Court, supra.Section 25-35-403(2), MCA, provides: "There shall not be a trialde novo inthe District Court. The appeal shall be limited toquestions of law.

### " Subsection 2, above quoted, isunconstitutional because it effectively denies counsel atalllevelsof factual determination. The right to counsel can be denied inthe small claims procedure, as long asthe right isprotected on appeal. Sincewe have struck theprohibition against a trialde novo inDistrict Court, we find section 25-35- 105(2),MCA, tobe constitutional, if the unconstitutional provision canbe severed. Part 2 The question of whether a jury trial isrequired in small claims court, provides a more difficultquestion. Article 2, Section 26, theMontana Constitution, provides: "Trial by jury. The right of trialby jury is secured toall and shall remain inviolate

# .. ." This Court has the right to interpret its own constitution ina manner which grants greater rights than are secured under the federal constitution. However, it is the duty of the courts touphold the constitutionality of legislativeenactments if such can be accomplished by reasonable construction. Foster v. Walus, supra. Wehold that the constitutional rightto trialby jury is satisfied if it isgranted atthe DistrictCourt level, though denied atthe small claims level. This questionwas addressed by the U. S. Supreme Court inLivingston v. Moore (1833). 32 U.S. (7Pet.) 469, 8 L.Ed. 751. ArticleXI, Ch. I, Constitution of Pennsylvania adopted in 1776, provided "That incontroversies respecting property, and insuitsbetween man and man, the parties have a right to trialby jury. which ought tobe held sacred." IntheConstitution of Pennsylvania adopted in 1790, ArticleIX, section 6, declared "That trialby jury shallbe asheretofore, and the right thereof remain inviolate." The statutes of Pennsylvania, from 1782, required all accounts between the stateand its officers tobe settledby the comptroller general and approved by an executive counsel. If a balance was found tobe due the state, the comptroller general was authorized to directthe clerk of the county where the officer resided toissue summary process to collect the amount due. Itwas further provided that theperson aggrieved by the process should be allowed tohave a trial of the factsby a jury through appealing from the settlement of the comptroller general tothe Supreme Court of the state. The law further required that the aggrieved party enter sufficient surety asa prerequisite to theprosecution of such appeal. The constitutionalityof these statuteswas attacked asbeing inderogation of the "right to trialby jury" secured by thePennsylvania Constitution. Inresolving thisquestion, theU. S. Supreme Court said: "As to the sixth section of the Pennsylvania bill of rights, we can

see nothing inthese laws on which tofasten imputation of theviolation of the rightof trialby jury; since, in creating the lien attached to the settled accounts, the right of an appeal toa jury is secured to the debtor; 

# . . ." This casewas citedby approval inCapital ~raction Co.

v. Hoff (1898), 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873. Wehold that section 25-35-403(2), MCA, is unconstitutional. because it effectivelydenies the right to trialby jury atall levels. We further hold that the right to trialby jury, as secured by theMontana Constitution, remains inviolate if provided on appeal to the District Court.Part 3 Appellant further attacks the constitutionality of section 25-35-201(2), MCA, which provides: "The justice shall assistany claimant inpreparing his complaint or instructhis clerk toprovide such assistance

# . 

# . ." Appellant contends thathe isdenied due process of law by virtueof the justice of thepeace assistingone of theparties to the litigation. We find no meritin this contention. By guaranteeing a trialde novo on appeal to the DistrictCourt, allconstitutional guaranteeswillbe satisfied. Part 4 The remaining question iswhether the balance of the small claims procedure, section 25-35-101, MCA, through 25- 35-406, MCA, exclusive of section 25-35-403(2), MCA, can stand. The procedure contains the following severability clause: "If a part of this actis invalid, allvalid parts that are severable from the invalid partremain ineffect. If a part of this actis invalid inone ormore of its applications, thepartremains ineffectinallvalid applications thatare severable from the invalid applications." Ch. 573, Section 21, Laws of Montana (1.977). Wemust find theprocedure constitutional if (1)severance leaves an otherwise complete procedure, and (2) we can accomplish severance while honoring legislative intent as to thebalance of the act. Section 25-35-303, MCA, provides that allcivil actions tried in small claims courtmust be electronicallyor stenographically recorded. Section 25-35-404, MCA, provides the entirerecord of proceedings inthe small claims court shall be transmitted to the District Court, including the recording

or transcript referred toinsection 25-35-303, MCA. Thesetwo sections, which constitute the heart of the appeal procedure provided, contemplate an appeal limited to questions of law. Since we have struck theprohibition against a trialde novo, the appeal procedure which remains is incompatible with the appeal procedure required. We arenot able to ascertain legislative intent. The legislature intended toprohibit a trialde novo, and the appeal procedure provided is tailored toa review of legal questions only. For example, no mention ismade of a bond requirement on appeal. Yet, inan appeal from justice court to DistrictCourt, where a trialde novo isrequired, a bond must be posted, section 25-33-201, MCA, through section 25- 33-207, MCA. Because theprohibition againsta trialde novo isunconstitutional, we areleftwithout an appropriate appealprocedure. For the reasons previously stated, an appeal must be made availablewith a trialde novo inDistrict Court. We, therefore, find thatwe cannot sever the unconstitutionalprohibition, section 25-35-403(2), and have a complete act. Neither arewe able to determine what the legislators' intenton an appeal procedure would have been had they known of the constitutional requirement for a trial de novo inDistrictCourt. Wehold the small claims procedure injustice court, section 25-35-101, MCA, through section 25-35-406, MCA, inclusive, tobe unconstitutional and void. Furthermore, we hold that a judgment obtained under thisunconstitutional actisnot void and the unconstitutionalityof the actdoes not deprive the judgment of its effect. Chicot County Drainage Dist. v. Baxter StateBank (1940)~ 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed 329.This opinion is effectiveas to the litigants inthis

case and effective as tojudgments becoming final after the date hereof. Part 5 We remand thiscase to the DistrictCourt with directions tovacate the judgment. Plaintiff may refile inany court having jurisdiction.

We concur:

### Mr. Justice John C. Sheehy specially concurring:

I concur that the act establishing a small claims court division in the justice courts, Ch. 572, Laws of 1957 (Title 25, Ch. 35, MCA) is unconstitutional because itmakes no provision for a jury trial, contrary to 1972Mont. Const., Art. 11, § 

### 26. I disagreewith the foregoing opinion, authored by Justice Morrison, however, when it concludes that it is constitutionallypermissible under our state constitution to deny a jury trial at the small claims court level in the justice court if a trial de novo is afforded on appeal in the District Court. An unwelcome result of the reasoning of the foregoing opinion is that it holds constitutionally invalid a provision which is normally perfectly valid, namely, that an appeal from the justice court is not to be by trial de novo. There is nothing constitutionally impermissible in a legislature providing that appeals from a justice court shallbe only

on questions of law. Himovitzv. Justice's Court (1926) 77 Cal.App. 95, 246 P. 

### 82. Itwould not be necessary in the foregoing opinion to hold such a provision invalid if we decided that to provide a jury trial at the first stage of the small claims court procedure is a constitutional requirement.The foregoing opinionposits that if a litigant has a right to a jury trial on appeal through a trial de novo, his jury right ispreserved. The fact remains, however, that the litigant must firstpass through a trial in the small claims courtwithout a jury before he can get to the appeal stage. He would be given no right to a jury trial in the

### first layer of of the decisional system. The state constitution says that "[tlhe right of trial by jury is secure to all and shall remain inviolate." 1972Mont. Const., Art. 11, § 

### 26. The foregoing opinion, by holding the litigant's right to a jury trial in an appeal de novo setting preserves the right inviolate,violates it. The litigant is in truth denied a jury trial until his appeal. The state constitution is not thereby obeyed. T 

### further disagree with the foregoing opinion that the right to counsel in the small claims court can be constitutionallydenied, if the right to counsel is guarantied

on appeal in a de novo procedure. The right to counsel is implicit in the constitutional guaranties of due process, and I insist that the right to counsel must exist in the small claims court under the present statutory scheme. The opinion foregoing relies on the Idaho case of Fosterv. Walus (1959), 81 Idaho 452, 347 P.2d 120, and upon the California case of Prudential Ins. Co. v. Small Claims Court (1946), 76 Cal.App.2d 379, 173 P.2d 38. 

### California, however, in later cases,has had tomodify its position somewhatwith respect to the right to counsel. InMendoza

v. Small Claims Court of LosAngeles J.D. (1958), 49 Cal.2d 668, 321 P.2d 9, itwas held that the denial of right to counsel in unlawful detainer actions in a small claims court

was invalid since under the provisions there, a tenant for month tomonth could be deprived of the possession of his property after a hearing where the tenant was not represented by counsel. Additionally, in Brooks v. Small C1. Ct., Downey J.D., LosAngeles Cty. (1973), 8

### Cal.3d 661, 504 P.2d 12431 the California court held that the requirement in the small

### claims court statutes of an undertaking on appeal from a judgment in a small claims court constituted a taking of property prior to a due process hearing with 

### a right to counsel. With the later California cases in mind, I direct attention to our section 25-35-406,MCA, in the small claims court procedure. That statute provides: "Executionof judgment. Proceedings to enforce or collect a judgment are governed by the laws relating to execution upon justice's court judgments." Under section 25-31-1101, et seq., and section:25-13- 501, et seq.,~~,the holder of a judgment in a small claims court under the present statutory scheme can procure execution

on the judgment debtor's property. Since the judgmentdebt~r has been denied the right to counsel in the small claims courtprocedure, any such execution would constitute a taking of his property and a denial of due process because the judgment-debtor is not given an opportunity to have counselbefore his property is levied upon. There is no provision for a stay of execution under our present small claims court procedure. Because a judgment debtor in a small claims court procedure may have his property executed upon, and because of the provision that in the small claims court the claimant

can have the assistanceof the justice in framing his complaint,

(section25-35-201(2),MCA.) 

### I would hold that the denial of right to counsel in the small claims court is an unconstitutionaldeprivation of due process to the litigants. The constitutional defect of no right to counsel could not be cured by using the severability clause to uphold the remainder of the act. When a court holds that a 

### lawmay be upheld by severing invalid provisions, the remainder of the

### lawmay be sustained as valid only 

### --- if it is complete 

### - in itself 

## - and capable 

### - of being executed 

### - in accordancewith the 

### -- legislative 

### -- intent. Gullickson

### v. Mitchell (1942), 

### 113 Mont. 359, 126 P.2d llC6. Furthermore, the appellate court must be able to say that after the elimination of the invalid portions, the remainder of the act would have been enacted by the legislature. Statev. Holmes (1935),100 

### Mont. 256, 

### 47 P.2d 624. I am judicially out of shape for such a long j ump

# . Therefore, 

### Iwould hold that such an act isunconstitutionalunless itprovides a jury trial in the first instance and right to counsel to allparties at all stages.Mr. Justice Daniel J. Shea concurring in part and dissenting in part:

I agree that the small claims procedure set up in Title 25, Ch. 35, MCA, is unconstitutional, and that the severability clause will not save the substance of this act. In enacting this act, the legislature ignored the constitutional right to jury trial guaranteed by 1972 Mont. Const., Art. 11, 

### 5 26. Themajority, however, holds that it is sufficient if a new small claimsprocedure act guarantees the right to jury trial by an appeal to District Court and a second trial held there. Ipart with the majority here becanse I believe that the right to jury trial must be guaranteed in the court of original jurisdiction--the court that first conducts a trial on the merits. A fsir reading of Art. 11, § 26, requires this interpretation. Themajority seizes on the first sentence of Art. 11, § 25, "[tlhe right of trial by jury is secured to all and shall remain inviolatew--butignores the remaining language of this section. It is not enough to quote the first sentence, for the remaining language of section 26 shows without question that the right to jury trial is guaranteed in each of the trial courts of this state. The 1972 Mont. Const., Art. 11, 

### 5 26 provides: "Trialby jury. The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the lawmay provide, all casesmay be tried without a j:lry or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jurymay render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous." This sectiondoes not distinguish between levels of trial courts.

### Themeaning of this section, when read in its entirety, is crystal clear. The explicit guarantee is set out in the first sentence: "the right of trial by jury is secured to all and shall remain inviolate." Ey the second sentence, trials in allMontana trial courts canbe by less than the - 

### required number of jurors if the parties agree, or if a party defaults. By the third sentence, trial of a civil

case in all trial courts of this state,required the agree

### - ment of two-thirds of the jury in order to reach a verdict. By the fourth and last sentence, trial of a criminal case in - 

### all trial courts of this state requires the unanimous agreement of the jury in order to reach 

### a verdict. I don't knowwhat could be more clear. However, reference to the 1889 constitutional provision guaranteeing the right to jury trial, shows the intent of the framers in transforming the 1889 constitutional provision to the 1972 provision. The 1889Mont. Const., Art. 111, 5 23, 

### provides: "Theright of trial by jury shall be secured to all, and remain inviolate, but in all civil cases and in all criminal cases not amounting to felony,upon default of appearance, or by consent of the parties expressed in such manner as the lawmay prescribe, a trial by jurymay be waived, or a trial had by any less number of jurors than the number provided by law. A jury in a justice's court,both in civil cases and in cases of criminal misdemeanor, shall consist of notmore than sixpersons. In all civil actions and in all criminal cases not amounting to felony, two-thirds in number of the jury may render a verdict, and suchverdict so rendered shall have the same force and effect as if all such jury concurred therein.

### " A careful comparison of the 1889 provision with the 1972provision, shows that there are only two substantial changes--the other changes are style and drafting changes. First, under the 1889 Constitution, a defendant could not felony waive a jury trial in a/criminal case,but under the 1972 Constitation, 

### a defendant by agreement of the parties, can

### w~ive a jury trial. Second,under the 1889 Constitution in nonfelony cases, only two-thirds of the jury need agree to reach a binding verdict;but under the 1972 provision, in all criminal cases the verdict must be unanimous. The ConventionNotes on the right to jury trial show that thesewere the only changes contemplated by the delegates. The note to section 26 states: "Revises 1889 constitution [Art. 111, sec. 231 by permitting a defendant to waive a jury trial in felony cases as well as civil and misdemeanor cases and by requiring all jurors [rather than 2/31 agree before a defendantmay be convicted of amisdemeanor." No onewould argue that a person did not have a right to a jury trial in justice court under the old constitution; and no one should argue that a person does not have a right to a jury in justice court,police court, or a small claims court under the 1972 constitution. The right is there--it is "secured to all and shall remain inviolate." A&. 11, 

### 5 26. For reasons I don't understand, the majority cites, without explanation, two United States Supreme Court decisions: Capital Traction Co. v. Hoff (1898), 174U.S. 1, 19 S.Ct. 580, 589, 43 L.Ed. 873; and Livingston v. Moore (18331,32 1J.S. (7Pet.) 469, 8 L.Ed. 751. Neither case is applicable to the question raised here. In Livingstonv. Moore, suprz,a Pennsylvania case, the procedures 

### in that state set up an administrative method for settling of accounts between the state and its officers. No trial was involved at all. Once the comptroller authorized the clerk to issue summary process to collect the amount he decided was due, any aggrieved state officer could immediately cut off that process by appealing to the Pennsylvania Supreme

### Court and demanding a jury trial. Therefore, the right of jury trial was guaranteed the moment the administrative proceedingswere completed and the comptroller reached a decision. Another reason Livingston does not apply here is that the court interpreted constitutional provisions wholly unlike the provision - 

### in Montana. The constitutional provisions actually involved in Pennsylvania, stated: "Incontroversies respecting property, and in suits betweenman and man, the parties have a right to trial by jury,which ought to be held sacred." Art. 22, Const. of Penn. adopted in 1776. "Trialby jury shall be as heretofore,and the right thereof remain inviolate." Sec. 6, 

### Bill of Rights, Const. of Pznn. adopted in 1790. These provisions cannot be compared at all with Montana's constitutional provision,Art. 11, 5 

### 26. I seeno reason why Livingston has any bearing on interpreting our own constitutionalprovision. Nor does Capital TractionCo. v. Hoff, supra, have any bearing on the issue raised here under our own constitution. That case involved issues not even involved in this case. The first issuewas whether the trial procedure in the District of Columbia violated the right to a jury trial as provided for in the Seventh Amendment to the United States Constitution. The second issuewas whether the right to jury trial based on law existing before the District of Columbia became a ward of the United StatesGovernment, applies after the districtbecame a ward. These issues are totally irrelevant to an interpretation of our own constitutional provision on jury trials. It is clezir that in holding that the right to jury trial under 1972Mont. Const., Art. 11, 

### 5 26 can be preserved

### by providing for a jury trial at a second trial on appeal, the majority has totally ignored the provisions of our constitution. It is not enough to base a decision only on the first sentence of Art. 11, § 26. 

### As I have already stated, the majority got ahead of itself in holding that the first trial can take place without

a 

### jury,but that a second trialwith a jury must be guaranteed. It also appears by implication in the majority opinion that the right to counsel in a civil trial before a 

### jury,must be guaranteed, and that the absence of counsel amounts to a denial of dueprocess of law. I

### don't agree. I emphasize first that Iwould require a jury trial to be held in any small claimsproceedings if either one of the parties demanded a jury trial. I also believe there are benefits to a jury trial in a small claims court if it is conducted without benefit of counsel. One of themain objectivesof a small claims procedure is to have speedy and inexpensive justice. Although this concept is illusory at best, it is still an objective of which we 

### should not lose sight. The presence of counsel at

a trial oftenmakes it less speedy, and surely makes itmore expensive. A jury trialwithout benefit of counsel can reach the equities of a case. One of the objectives of a small claims court is to simplify pleadings, to do away with the technical rule6 of evidence, and to generally get to the heart of the issue in order to reach an equitable solution. This can be done only if the small claims court is more a court of equity than it is a court of law. Although Ihave no empirical evidence to back my statement, I

### don't think I am going astray in stating thatmost

### people in this country do not want to entrust the fate of 

### a case to the hands of one person. Most people would feel far better about their trial if itwas a jury of their fellow citizens deciding their case. People in this country are naturally suspicious of entrusting their fate to one person. If a jury, zather than a judge, decides a small claims case, I believe that a party on the receiving end of an adverse jury verdict, will more readily abideby the jury's decision. If so,he is less likely to take an appeal and the litigation will be ecded. A 

### small claims court judqewho genuinely wants to see the case fairly submitted to a jury,will do his best to see that the jury has thewhole story. If the proceedings are to be effective, the jury should be invited to participate in the trial by asking questions and generally getting to the bottom of the case so that the equities canbe felt. Once those equities are felt, I

### believe the collective judgment of a jury is more likely to reach an equitable result than is the judgment of one person. A 

### jury is the cross-section of the community and a jury is the conscience of the community. A 

### judge is not. I do not say that a jury decision in a small claims court should in all casesbe irrevocably final. Perhaps there should be an appeal process, and in that appeal process itmight be best to let counsel participate. Nor do I 

### say that a jury system as I 

### recommend would not have its abuses; there is no systemyet devised by man that has not been abused. But if abusesdo occur, surely the existing legal remedies could be fashione2to reach the abuses. If the abuseswere frequent and wide-ranging, 

### Ihave no doubt that the legislaturewould be asked to convert the small claims court into a court of law, with all the forinal procedures.

### Under Art. 11, 5 26 

### of our constitution,the right to jury trial in a small claims court is "inviolate." But if we have the faith in the jury system as'weall say

### we do (and Iam a true believer), we should let it operate in a small claims court differently than in a strict court of law. The resultsmay be good, or they may be bad, but we should give it a chance, for any abuses can be corrected. There are several unhealthy implications of 

### a decision thatpermits a jury trial only at a second trial, after there on the has already been a nonjury trial/ merits In the court below. The realities are that in nany if notmost of the trials, a jury trial waiver would be the result. We should not bury our heads in the sand. The legislature cannothelp but be aware that the district courts, are, for the most part, overburdenedwith cases to try--both criminal and civil. There is more than a probability that a case appealed from a small claims court will not have

as good a chance of getting on the jury trial calendar as

are the criminal cases and civil cases filed directly in district court. The case on appeal from the small claims courtmay well languish at the district court level for a long period of time before it is ever tried. Nor can itbe denied that district judges aremost reluctant to call in juries to try civil appeals coming to them from a lower court. A 

### district court judge undoubtedly will directly or indirectly pressure counsel or the parties to waive a jury trial. It is not unheard of that district judges have their own way of convi~cing counsel that it is best to waive a jury trisl, and that message inevitablygets back to the client. Only a 

### strongwilled client can prevail upon his lawyer and the 

### trial

### judge in his insistence on a jury trial. These are not theories; they are the realities. If the right to a 

### jury trial is to mean anything, this is not the way it should be. 

### Even if therewas no pressure from district judges and lawyers to waive a jury trial in an appeal from a small claims court, the undeniable fact is that itwould take a long time to get to trial,whether the trial is by jury, or whether the trial iswaived and a judge hears the case. If the general purpose of a small claims court is to be served, it is best to have the full trial on the merits, before a jury, in the small claims court. 

### We have today declared the small claims act to be unconstitutional. If the legislaturedecides to again create a small claims court, Iwould suggest that its members closely read the 1972Mont. Const., Art. 11, S 

### 26. 

### I think they would agree that they must provide for a jury trial in the small claims court. That sectiondoes not distinguish between district court trials and lower court trialswhen guaranteeing the right to jury trial. But the majority has erroneously done so here. /F"\Mr. Chief JusticeFrank I. Haswell, dissenting: I would declare section 25-35-403 (2), MCA prohibiting trial de novo in the District Court and restricting appeals to questions of law unconstitutional, sever it from the 

### rest of the Act, and declare the balance of the Act constitutional. Accordingly, I would vacate the judgment and remand the case to the District Court for 

### a trial de novo. I agreewith the majority opinion on allpoints save one. I part company with the majority in its holding that the entire Act 

### is unconstitutional because the appeal procedure which remains a£ter excising section 25-35-403 (2), MCA, I'is incompatible with the appeal procedure required;" that "we are unable 

### to ascertain legislative intent"with regard 

### to the appeal procedure; and therefore the remainder of the Act is incomplete and cannot be severed. Inmy view, legislative intent is 

### clear and unmistakable from the language of the Act: "Section 21. Severability. If a part of this 

### act 

### is invalid, allvalid parts that 

### are severable from the invalid-part remain in effect. If a part of this 

### act 

### is invalid inone 

### or more of 

### its applications, the part remains in effect in allvalid applications that are severable from the invalid applications." Laws of Montana (1977), Ch. 572, 

### 5 21. I find no difficulty in severing the prohibition against trial de novo in the District Court and limiting the appeal to quest ions of 

### law from the 

### rest of the Act. The small 

### claims procedure on appeal remains complete because the statutes governing appeals from the justice court to the District Court apply. Section 25-33-101 

### et seq., MCA. These statutesprovide a procedure for the filing of an appeal (sections25-33-101 to 25-33-104 inclusive, MCA), for an undertaking and stay of execution on appeal (sections25-33-201 

### to 25-33-207 inclusive, MCA)

## , for a 

### trial de novo in the District Court (section 25-33-301, MCA)and for the procedure in the District Court on appeal (section 25-33-301 to 25-33-306 inclusive, MCA). The provisions of the small claims procedure, a specific statute, control over the provisions governing appeals from justice court 

### to the District Court, a general statute, only to the extent of any inconsistencies. Martel Constr. Inc. v. Gleason Equip. Inc. (1975), 166Mont. 479, 483, 534 P.2d 883, 885. Fickes v. Missoula County (1970), 155 Mont. 258, 272, 470 P.2d 287, 294. It might be argued that the provisions regarding tapes 

### or transcripts of the justice court proceedings (section 25-35-404 and 25-35-405, MCA) are incompatible with 

### a trial de novo inDistrict Court, but their utility for impeachment of witnesses in the District Court and discouraging alteration of testimony in the District Court 

### are valid objectives and remain undiminished. As I see it, the remainder of the Act would have been enacted by the legislature a£ter excising the unconstitutional part by reason of the severability provision in the Act itself, and in conformity with the other requirements inGullickson v. Mitchell (1942), 113Mont. 359, 375, 126 P.2d 1106, 1115, and City of Missoula v. Holmes (1935), 100Mont. 256, 291, 47 P.2d 624, 636. Likewise, the provisions on appeal provide a complete appeal procedure by incorporation of existing statutes governing appeals from justice court to District Court. Viewed in thisway, I find the Act complete in itself and one which the legislature would have intended to be in effect even without section 25-35-403(2), MCA. For the foregoing reasons, I dissent from the majority holding that the entire Small Claims Court Act is unconstitutional.

Chief Justice \