IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA EX REL., R. BUD 

GOULD, H. W. "SWEDE" HAMMOND, 

JERRY NOBLE, JOHN E. PHILLIPS, 

and BOB THOFT, 

Petitioners and Relators, 

v. 

MIKE COONEY, Secretary of State of 

the State of Montana; KIM HARRIS, 

Election Administrator and Clerk 

and Recorder of Lewis and Clark 

County, Montana, individually and 

as representative of the class of 

all election administrators and clerk 

and recorders of the State of Montana, 

and THE STATE OF MONTANA, 

Respondents. 

OPINION 

and 

ORDER 

This is an application and petition for writ of injunction and 

declaratory judgment. Petitioners and relators are members of the 

Montana legislature and residents, registered voters, and taxpayers 

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 as the 

"Treasure State Endowment." Petitioners and relators also ask for 

a declaratory judgment that House Bill 19 is an unconstitutional 

attempt by the legislature to refer to the people of Montana a 

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"bill" which has not been subject to the veto power of the Governor 

of Montana. 

Responses to the application and petition have been filed by 

Kim Harris, Lewis and Clark County Treasurer/Clerk and Recorder, 

and by Mike Cooney, Secretary of State. Cooney, supported by 

Harris, moves to dismiss the action for failure to properly join 

and serve all necessary parties, failure to bring the action in a 

timely fashion, failure to present a case for which the Supreme 

Court should assume original jurisdiction, and failure to state a 

claim for which relief can be granted. 

In filing this action, petitioners and relators named the 

Secretary of State and all of the election administrators throughout the state as respondents. However, instead of serving all of 

the county election administrators, they simply named Rim Harris 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 members of the class are so numerous that joinder of all 

members is impracticable. 

Because we conclude, as described more fully below, that it is 

necessary for this Court to assume original jurisdiction in this 

matter and that the petition for an injunction should be denied, we 

shall proceed to the merits of this matter. We make no ruling as 

to the method of service of process used in this case. 

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In 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. 

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In resolving disputes of constitutional construction, this 

Court applies the rules of statutory construction. Under these 

rules, the intent of the framers of the Constitution is controlling 

and must first be determined from the plain language of the words 

used. Butte-Silver Bow, 768 P.2d at 330. 

Article VI, Section 10, of the Montana Constitution provides: 

Veto power. (1) Each bill passed by the legislature, 

except bills proposing amendments to the Montana constitution, bills ratifying proposed amendments to 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 be held 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.] 

We conclude that "referendum measures" as used in the Montana 

Constitution means both legislative referendum and initiative 

referendum. The plain language of these sections of the Montana 

Constitution makes it clear that legislation calling for a 

referendum measure is not required to be signed by the governor. 

Petitioners and relators also claim that the referendum 

measure identified as House Bill 19 is an appropriations measure 

and, therefore, under Article III, Section 5, of the Montana 

Constitution, cannot be submitted to the people as a ballot issue. 

However, as described in the Attorney General's ballot statement 

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

permanent trust to a treasure state endowment trust." On its face, 

this measure is not an appropriation of money. 

Section 13-27-310(2), MCA, provides that: 

The secretary of state shall transmit a copy 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 on the ballotto the attorney 

general no later than 6 months before the election at 

which the issue will be voted 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, 5 l-2-102, MCA, provides that: 

[i]n the construction of a statute, the intention of the 

legislature is to be pursued if possible. When a general 

and particular provision are inconsistent, the latter is 

paramount to the former, so a particular intent will 

control a general one that is inconsistent with it. 

House Bill 19 specifically directs the Secretary of State to 

place this referendum on a special 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 

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a result 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 19 was delivered to the Secretary of State. We conclude that 

the statement of particular intent in House Bill 19 that this 

measure appear on the 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. 

DATED this day of May, 1992. 

Chief Just#'e 

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Justice 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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