No. 85-441 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

GALLATIN COUNTY, STATE OF MONTANA, 

by and through its BOARD OF COUNTY 

COMMISSIONERS, Joy I. Nash, Chairman, 

Wilbur Visser, and Jane Jelinski, Members, 

Plaintiff and Respondent, 

RICHARD McCLUE , 

Defendant, Third Party Plaintiff 

and Appellant, 

GARY W. PRINGLE, as Clerk and Recorder 

of Gallatin County, Montana and as 

Election Administrator, 

Third Party Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nash, Wellcome, Frost, Guenther & Zimmer; Page 

Wellcome argued, Bozeman, Montana 

For Respondent: 

A. Michael Salvagni, County Attorney, Bozeman, 

Montana 

Thomas R. Anacker argued, Deputy County Attorney, Rozeman 

-- -- -- - -- 

Submitted: April 21, 1986 

Decided: June 25, 1986 

f~, G&&-&l 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appell-a-nt, Richard McClue, appeals from the order of the 

District Court, Eighteenth Judicial District, County of 

Gallatin, enjoining him from taking the office of Gallatin 

County surveyor, dismissing his counterclaim for writ of 

mandamus and petition for writ of mandamus, declaring the 

office of Gallatin County surveyor vacant, and awarding 

respondents their costs and attorney fees for their defense 

of the counterclaim for writ of mandamus. 

On November 6, 1984, a general election was held in 

Gallatin County, Montana. The office of county surveyor was 

listed on the ballot, but there were no candidates listed for 

the surveyor office. McClue received the highest number of 

write-in votes for the office of county surveyor. On 

November 21, 1984, the Board of County Canvassers certified 

McClue as the person having the highest number of votes for 

the office. 

On November 23, 1984, Gary Pringle, the Gallatin County 

Clerk and Recorder and election administrator, orally 

notified McClue of the results of the election. On November 

26, 1984, Pringle issued a certificate of election to McClue 

and later delivered the certificate of election to him. 

On December 31, 1984, respondent, Gallatin County Board 

of County Commissioners, filed a complaint for permanent 

injunction against McClue. A temporary restraining order and 

order to show cause were issued restraining McClue from 

taking the oath of office and taking the office of Gallatin 

County surveyor. On January 4, 1985, a show cause hearing on 

the temporary restraining order was held in open court. 
After the hearing, the District Court issued an order 

granting a preliminary injunction. 

On April 29, 1985, a hearing was held on McClue's writ 

of mandamus. McClue testified at the hearing that he was a 

resident of Bozeman, Montana, and a seismic surveyor. He 

also testified that he is not a licensed professional 

engineer, but that he had served in the U.S. Army for three 

years as a surveyor and did construction and topographic 

surveying. McClue also spent eight months surveying with the 

Montana Highway Department and a year and a half with Sage 

Engineers in Billings doing general surveying work including 

subdivisions. For the three and a half years prior to his 

election he had been involved in oil exploration. McClue 

detailed his education as five months pre-engineering in 

Billings and a Bachelor of Science degree in mechanical 

engineering technology from Montana. State University. The 

record of this case also discloses that at least ten other 

county surveyors currently holding office do not meet the 

qualifications of S 7-4-2801, MCA. 

Prior to being amended in 1985, S 7-4-2801, MCA (1983) 

provided for the qualifications for the office of county 

surveyor as follows: 

[I] A county surveyor shall be a professional 

engineer, not less than 22 years of age, who shall 

have been in active practice of his profession for 

at least 3 years and who shall have had responsible 

charge of work as a principal or assistant for at 

least one year. Graduation from a school of 

engineering shall be considered as equivalent to 2 

years of active practice. 

The District Court found McClue was not a professional 

engineer and had not been duly registered and licensed as a 

professional engineer by the Board of Professional Engineers 

and Land Surveyors for the State of Montana. The District 
Court also determined that § 7-4-2801, MCA, is constitutional 

under the 1972 Montana Constitution. Accordingly, the 

District Court enjoined McClue from taking office, dismissed 

his petition for writ of mandamus, ordered the office of 

Gallatin County surveyor vacant, and awarded costs and 

attorney fees to Gallatin County and Gary Pringle. 

McClue raises one issue for our review: whether the 

District Court was correct in concluding that McClue, the 

person duly elected as county surveyor of Gallatin County, is 

prevented from holding the office because he is not a 

licensed professional engineer in Montana.. 

McClue contends that § 7-4-2801, MCA, which was enacted 

by the Montana legislature as S 1, Ch. 50, Laws of Montana 

(1919) and re-enacted as 5 4835, RCM (1921), 5 4835, RCM 

(1935), and S 16-3301, RCM (1947), is unconstitutional under 

the 1889 Montana Constitution, Art. IX, 11. Gallatin 

County, however, contends that 5 7-4-2801, MCA is 

constitutional both under the provisions of our 1889 

Constitution as amended and the 1972 Montana Constitution. 

To understand the parties' respective arguments, a history of 

the pertinent constitutional and statutory provisions is 

necessary. 

Art. IX, 5 11, of the 1889 Montana Constitution 

provided : 

Any person qualified to vote at general elections 

and for state officers in this state, shall be 

eligible to any office therein except as otherwise 

provided in this constitution, and subject to such 

additional qualifications as may be prescribed by 

the legislative assembly for city offices and 

offices hereafter created. 

The office of county surveyor was created as a 

constitutional office in the 1889 Montana Constitution which 

provided in Art. XVI, 5 5 as follows: "There shall be 
elected in each county the following officers . . . one 

county surveyor;. . ." In 1919, the Montana legislature 

enacted 5 1, Ch. 50, Laws of Montana (1919) , which was the 

predecessor to 5 7-4-2801, MCA. The statute remained 

unchanged in our codes until the legislature amended it in 

1985. Section 7-4-2801, MCA, clearly provides for additional 

qualifications for the office of county surveyor that are not 

provided for in the 1889 Constitution. 

In 1935, an opinion of the Montana Attorney General was 

issued which found section 4835, RCM (1921), a predecessor to 

5 7-4-2801, MCA, to be unconstitutional because it required 

additional qualifications for the office of county surveyor 

which were not required by the 1889 Constitution. The 

opinion provides: 

Since the amendment of Section 10 of Article IX of 

the constitution in November, 1924, Section I1 of 

the same Article, so far as applicable here, is to 

the effect that any person qualified to vote at 

general elections and for state officers shall be 

eligible to any of the offices mentioned above 

except that of county superintendent of schools. 

Section 2 of Article IX of the constitution, as 

amended in November, 1932, prescribes the 

qualifications necessary to entitle a person to 

vote at general elections and for state officers, 

as follows: He must be of the age of twenty-one 

years or over; a citizen of the United States; a 

resident of the state for one year immediately 

preceding the election at which he offers to vote, 

and of the town, county or precinct for such time 

as the law might lay down. 

The constitution having prescribed the 

qualifications required of a county surveyor, the 

legislature was without power to supplement the 

constitutional pronouncement by such legislation as 

Section 4835, supra. 

16 A.G. Op. 194 (1935). 

In addition, McClue cites the court to two other Montana 

cases that stand for the proposition that statutes which 

require additional qualification for an office which are not 

required by the constitution are unconstitutional. See State 
ex rel. Palagi v. Regan (1942), 113 Mont. 343, 355, 126 P.2d 

818, 825; State ex rel. Chenoweth v. Acton (1904), 31 Mont. 

37, 43, 77 P. 299, 301-02. 

In 1937, at the next session of the Montana legislature 

following the above-cited Attorney General's opinion, a bill 

was passed which provided for a proposed amendment to Art. 

XVI, 5 5 of the 1889 Montana Constitution. Ch. 93, Laws of 

Montana (1937). This bill was approved by the legislature on 

March 12, 1937, and was adopted at the November 8, 1938 

general election and became effective under Governor s 

Proclamation of December 2, 1938. Following the amendment, 

Art. XVI, S 5 provided in pertinent part as follows: 

There shall be elected in each county the following 

county officers who shall possess the 

qualifications for suffrage prescribed by Section 2 

of Article IX of this Constitution -- and such other 

gualifications - as may - be prescribed by - law: 

. . . - one county surveyor;. . .. (Emphasis added.) 

The clear intent of the constitutional amendment was to do 

away with the constitutional infirmity discussed in the 

Attorney General's Opinion in 1935. 

Finally, with the adoption of the 1972 Montana 

Constitution, Art. XVI, § 5 was replaced by Art. XI, S 3, of 

the 1972 Montana Constitution, which provides: 

(2) One optional form of county government 

includes, but is not limited to, the election of . . . a surveyor,. . .. - The terms, qualifications, 

duties, and compensation of those offices shall - be 

provided - law. (~mphasiF added. ) 

Both parties agree that if the constitutionality of S 

7-4-2801, MCA, is tested under the 1889 Montana Constitution 

prior to the 1938 amendment thereto it is unconstitutional. 

Both parties, however, also agree that if the 

constitutionality of $ 7-4-2801, MCA, is tested under the 

1889 Montana Constitution as amended in 1938 or the 1972 
Montana Constitution, the statute is constitutional. Thus, 

the question is which constitutional provision controls. 

Both parties agree that the constitutionality of a 

statute should be tested by the constitution which was in 

force when the law was enacted. State ex rel. Woodahl v. 

Straub (1974), 164 Mont. 141, 146, 520 P.2d 776, 779. 

Gallatin County contends and the District Court agreed, that 

the constitution in effect when 5 7-4-2801, MCA was enacted 

was the 1972 Montana Constitution. Gallatin County argues 

that the re-enactment and adoption of 5 7-4-2801, MCA in the 

1947 and 1979 recodification process by the legislature 

served as separate enactments of the statute, thus requiring 

that 5 16-3301, RCM (1947) be tested against the 1889 

Constitution as amended and that 5 7-4-2801, MCA be tested 

against the 1972 Constitution. Section 12-330, RCM (1947) 

provided: 

The Revised Codes of Montana, 1-947 . . . are 

hereby, a.s to both form and substance, approved, 

legalized and. adopted as the laws of Montana now in 

force and effect and the same are hereby declared 

to constitute the laws of Montana now in force and 

effect . . .. 

Section 1-11-103, MCA, provides: 

(1) The Montana Code Annotated shall be enacted as 

a reenactment of the Revised Codes of Montana., 

1947, and the supplements thereto. 

(3) The Montana Code Annotated shall be given 

effect as a continuation of the Revised Codes of 

Montana and not as a new enactment.. . . (Emphasis 

added. ) 

Gallatin County cites this Court to a number of cases that 

stand for the proposition that each recodification of our 

code should serve as a separate enactment or re-ena.ctment of 

the statutes included therein. See, Atlas Life Insurance 
Company v. Rose (Okla. 1946), 166 P.2d 1011; In Re Berg's 

Estate (Neb. 1941), 296 N.W. 460. 

McClue contends that the constitution in effect when the 

predecessor of 5 7-4-2801, MCA was enacted in 1919 was the 

1889 Constitution and that the subsequent constitutional 

changes in 1938 and 1972 have no effect. McClue is correct 

that a statute unconstitutional when it takes effect is not 

resurrected by a subsequent constitutional change. State ex 

rel. Woodahl v. District Court (1973), 162 Mont. 283, 511 

P.2d 318. It is also true that the test of a statute's 

constitutionality is to be made at the time it takes effect 

and is to be made against the constitution as it exists at 

the time the statute takes effect. State ex rel. Woodahl v. 

Straub, 164 Mont. at 146, 520 P.2d at 779. 

The recodification of our code is merely a ministerial 

and administrative function performed by the code 

commissioner under the authority of the legislature. For us 

to hold that the legislature intended to remove the 

constitutional infirmity in this statute pursuant to the 1947 

and 1979 recodifications would be to give a meaning to this 

process which was never intended by the legislature. The 

reality of this case is that the predecessor of 5 7-4-2801, 

MCA was enacted in 1919 and was unconstitutional under Art. 

IX, 5 11 of our constitution as it then existed. The 

District Court denied McClue his right to hold office based 

upon a statute that was unconstitutional in its inception, 

and that had not been properly re-enacted under the 1972 

Constitution at the time McClue was elected. 

We reverse and remand this case to the District Court 

with instructions to issue McClue's writ of mandamus and to 

award him costs and reasonable attorney fees. 
We reverse and remand. 

We Concur: / 

Justice 

Justices 

i,'