IN THESUPREME COURTOFTHESTATEOFMONTANA

STATEOFMONTANAEXREL., R. BUD GOULD,H. W."SWEDE"HAMMOND, JERRYNOBLE,JOHNE. PHILLIPS, andBOBTHOFT,

Petitioners andRelators,
v. MIKECOONEY,Secretary of State of the State of Montana; KIMHARRIS, Election Administrator andClerk andRecorder of Lewis andClark County, Montana, individually and asrepresentative of the class of all election administrators andclerk andrecorders of the State of Montana, andTHESTATEOFMONTANA,

Respondents. OPINION and ORDER

This is anapplication andpetition for writ of injunction and declaratory judgment. Petitioners andrelators are members of the Montana legislature andresidents, registered voters, andtaxpayers of Montana. They ask this Court for an injunction preventing defendants and respondents from allowing a referendum measure identified as House Bill 19 from appearing on the June 1992 election ballot. This is the proposition otherwise known asthe "Treasure State Endowment." Petitioners andrelators also ask for adeclaratory judgment that House Bill 19is anunconstitutional attempt by the legislature to refer to the people of Montana a 1"bill" which hasnot beensubject to the veto power of the Governor

of Montana. Responses to the application andpetition have beenfiled by KimHarris, Lewis and Clark County Treasurer/Clerk andRecorder, and by Mike Cooney, Secretary of State. Cooney, supported by Harris, moves to dismiss the action for failure to properly join andserve all necessary parties, failure to bring the action in a timely fashion, failure to present acase for which the Supreme Court should assumeoriginal jurisdiction, andfailure to state a claim for which relief canbegranted. In filing this action, petitioners and relators namedthe Secretary of State andall of the election administrators throughout the state asrespondents. However, instead of serving all of the county election administrators, they simply namedRimHarris as the representative of the class of election administrators throughout the state. Respondents argue that this case does not meet the Rule 23(a), M.R.Civ.P., requirement for a class action that the membersof the class are sonumerous that joinder of all members is impracticable. Becauseweconclude, asdescribed morefully below, that it is necessary for this Court to assumeoriginal jurisdiction in this matter andthat the petition for aninjunction should bedenied, we shall proceed to the merits of this matter. Wemakenoruling as to the method of service of process used in this case. 2In order to assume original jurisdiction, this Court has

stated that three elements must be met. These are 1) that constitutional issues of major statewide importance are involved; 2) that the case involves pure legal questions of statutory and constitutional construction; and 3) that urgency and emergency factors exist making the normal appeal process inadequate. State

ex rel. Greely v. Water Court of State (1984), 214 Mont. 143, 691 P.2d 833; Butte-Silver Bow Local Government v. State (1989), 235 Mont. 398, 768 P.2d 327. The ultimate issues in this case are constitutional issues of major statewide importance which can be resolved on a purely legal basis of statutory and constitutional construction. Delaying a final ruling on the application and petition would leave unanswered the question of whether the referendum measure identified as House Bill 19 will appear on the rapidly approaching June 2 primary ballot in Montana. Therefore, and in the interests of judicial economy, we accept original jurisdiction in this matter. Petitioners and relators assert that Article VI, Section 10, of the Montana Constitution requires the governor to sign legislation authorizing the submission of a legislative referendum to the vote of the people. They suggest that the term "referendum" as used in Article VI, Section 10, does not include a legislative referendum.

3In resolving disputes of constitutional construction, this

Court applies the rules of statutory construction. Under these rules, the intent ofthe framers ofthe Constitution is controlling andmust first bedetermined from the plain language of the words used. Butte-Silver Bow, 768P.2d at 330. Article VI, Section 10, of the Montana Constitution provides: Veto power. (1) Eachbill passed bythe legislature, except bills proposing amendmentsto the Montana constitution, bills ratifying proposed amendmentsto the United States constitution, resolutions, and initiative and referendum measures shall be submitted to the governor for his signature. [Emphasis added.] Article III, Section 5, of the Montana Constitution provides that: [a] referendum shall beheld either upon order bv the lesislature or upon petition signed by at least five percent of the qualified electors in each of at least one-third of the legislative representative districts. [Emphasis added.] Weconclude that "referendum measures" as used in the Montana Constitution means both legislative referendum and initiative referendum. Theplain language of these sections of the Montana Constitution makes it clear that legislation calling for a referendum measure is not required to besigned bythe governor. Petitioners and relators also claim that the referendum measure identified as House Bill 19is anappropriations measure and, therefore, under Article III, Section 5, of the Montana Constitution, cannot besubmitted to the people asaballot issue. However, asdescribed in the Attorney General's ballot statement

4fiscal note, the "measure redirects coal severance tax from the

permanent trust to atreasure state endowment trust." Onits face, this measure is not an appropriation of money. Section 13-27-310(2), MCA, provides that: The secretary of state shall transmit acopy of an act referred to the people or a constitutional amendment proposed by the legislature and a copy of the form in which the issue will appear onthe ballotto the attorney general no later than 6 months before the election at which the issue will bevoted on by the people. Petitioners and relators argue that, because House Bill 19 was passed by the legislature less than six months before the special election at which the legislature ordered it be placed on the ballot, and was therefore necessarily submitted to the Attorney General less than six months before the election, the measure must be removed from the ballot as violative of §13-27-310(2), MCA. However, 5l-2-102, MCA, provides that: [i]n the construction of astatute, the intention of the legislature is to bepursued if possible. Whenageneral and particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control ageneral one that is inconsistent with it. House Bill 19specifically directs the Secretary of State to place this referendum onaspecial election ballot held at the same time as the June 1992 primary election. As discussed above, the legislature possesses authority to do so, under Article III, Section 5, of the Montana Constitution. Petitioners and relators have not alleged that any procedural steps have been disregarded as

5aresult of the shortened time between submission of this measure

to the Attorney General and the June 1992 election. Further, the time element did not prevent petitioners and relators from delaying their application to this Court for nearly three months after House Bill 19was delivered to the Secretary of State. Weconclude that the statement of particular intent in House Bill 19 that this
measure appear onthe June 1992 ballot controls over the statement of general intent set forth at §13-27-310(Z), MCA. IT IS ORDERED that the application for an injunction is DENIED. DATEDthis day of May, 1992.

Chief Just#'e

6Justice Karla M. Gray specially concurring:

I concur in the practical effect of the majority order opinion. Under these circumstances, I would have dismissed application and petition as untimely. and the



### I AA Justldes

Justice William E. Hunt, Sr., did not participate.

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