No. 12843 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

GENERAL AGRICULTURE CORPORATION, 

Plaintiff and Appellant, 

PAUL J. MOORE and LUELLA MAY MOORE, 

husband and wife, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant : 

Jardine, Stephenson, Blewett and Weaver, Great Falls, 

Montana, K. Dale Schwanke argued, Great Falls, Montana 

W. G. Gilbert, Jr., Dillon, Montana 

For Respondents: 

Swanberg, Koby, Swanberg and Matteucci, Great Falls, 

Montana, Ray F. Koby argued, Great Falls, Montana 

Morrison, Ettien and Barron, Havre, Montana 

J. Chan Ettien argued, Havre, Montana 

Hauge, Hauge, Ober and Spangelo, Havre, Montana 

Ronald Smith, Havre, Montana 

Weber, Bosch, Kuhr, Dugdale and Warner, Havre, Montana 

Burns, Solem and MacKenzie, Chinook, Montana 

For Amicus Curiae: 

Allen B. Chronister, Helena, Montana 

Kendrick Smith argued, Butte, Montana 

James T. Harrison, Jr. argued, Helena, Montana 

Submitted: February 10, 1975 

Decided :APR 3 (I 19~5 

Filed: 8 dJ 
Hon. Arthur Martin, District Judge, sitting for Chief Justice 

James T. Harrison, delivered the Opinion of the Court: 

The circumstances leading to this appeal are brief. On 

November 30, 1972, plaintiff filed its petition seeking to 

appropriate surplus waters from an adjudicated stream under 

provisions of section 89-829, R.C.M. 1947. While the action 

was pending the legislature enacted Chapter 452, Laws of 1973, 

If denominated as the "~ontana Water Use Act. The new Act, codified as sections 89-865 et seq., R.C.M. 1947, substituted a 

new procedure for the appropriation of water rights, effective 

July 1, 1973. The former Act, including the section under which 

plaintiff instituted its action, was repealed. 

After the effective date of the new Act, plaintiff, without 

changing character of relief sought, filed an amended complaint. On 

motion of defendants (a group of appropriators or claimants who 

have or appear to have, rights in the source of supply of water 

rights sought by plaintiff, Cow Creek), the district court dismissed 

the amended complaint on the ground plaintiff's action was abated 

by the repeal of section 89-829. The propriety of the dismissal on 

that ground is the primary issue on this appeal. 

Authority for the district court's dismissal is derived from 

section 43-512, R..C.M. 1947, which provides: 

11 Any statute may be repealed at any time, except 

when it is otherwise provided therein. Persons 

acting under any statute are deemed to have acted 

in contemplation of this power of repeal. I1 

Section 43-512 is an extension of common law stated in 

73 Am Jur 2d, Statutes, !j 389: 

"* * 9; if a statute is unconditionally repealed without 

a saving clause in favor of pending suits, all pending 

proceedings thereunder are terminated. * * Moreover, 

in the absence of any constitutional saving clause, a 

judgment rendered by virtue of the terms of a statute 

which is repealed is void, although the proceedings may 

have been commenced before the repeal. 11 

See also: Anno. 77 A.L.R. 1338, 1345 
This rule applies especially to remedial statutes such as 

section 89-829, R.C.M. 1947. 73 Am Jur 2d, Statutes, $ 11; 

Lemon v. Los Angeles Terminal Ry. Co., 38 C.A.2d 659, 102 

P.2d 387, 393; Continental Oil Co. v. Mont. C. Co., 63 Mont. 

223, 230, 207 P. 116. 

Initially on appeal, arguments presented in behalf of 

appellant were directed toward showing that the Water Use Act 

contained provisions which saved the proceeding from the annihilating effect of section 43-512, W.C.M. 1947. Subsequently, 

supplemental briefs were submitted which placed emphasis on 

constitutional considerations rather than legislative intent. 

We agree that constitutional provisions are controlling in disposition of this appeal. 

A,rticle 111, Sec. 15, of the 1889 Montana Constitution, 

provided : 

 h he use of all water now appropriated, or that may 

hereafter be appropriated for sale, rental, distribution, or other beneficial use, and the right of way 

over the lands of others, for all ditches, drains, 

flumes, canals, and aqueducts, necessarily used in 

connection therewith, as well as the sites for 

reservoirs necessary for collecting and storing the 

same, shall be held to be a public use.* f: *" 

In 1972, Montana adopted a new donstitution which became 

effective on July 1, 1973, Subdivisions (2) and (3) of Section 

3, A.rticle IX of the 1972 Constitution are substantially the same 

as Article 111, Sec. 15, of the 1889 Constitution, but two provisions of significance to this case, subdivisions (1) and (4), 

were added in Section 3, Article IX of the 1972 Constitution. 

Subdivision (1) provides : 

"All existing; rights to the use of any waters for 

any useful or beneficial purpose are hereby recognized 

and confirmed. " (Emphasis supplied). 

Subdivision (4) provides : 

 h he legislature shall provide for the administration, 

control and regulation of water rights and shall establish a system of centralized records, in addition to the 

present system of local records. 11 
Section 6 of the Transition Schedule of the 1972 Constitution 

contains this provision: 

f 1 General transition 

"(2) The validity of all public and private bonds, debts, 

and contracts, and of all suits, actions and rights of 

action, shall continue as if no change had taken place. 11 

This paragraph will hereafter be referred to herein as the "transition clause". 

16 C.J.S. Constitutional Law $48, states: 

"Jt Jc * it is within the power of those who adopt a 

constitution to make some of its provisions selfexecuting. * * * I I A provision is self-executing when it can be given 

effect without the aid of legislation and there is 

nothing to indicate that legislation is contemplated 

in order to render it operative * *. 

"The fact that a right granted by a constitutional 

provision may be better or further protected by 

supplementary legislation does not of itself prevent 

the provision in question from being self-executing; 

nor does the self-executing character of a constitutional provision necessarily preclude legislation 

for the better protection of the right secured, or 

legislation in furtherance of the purposes, or of 

the enforcement, of the provision. 

See also: State ex rel. Stafford v. Fox-Great Falls Theatre 

Corp. , 114 Mont. 

This Court in State v. Aitchison, 96 Mont. 335, 341, 30 P.2d 

805, in discussing the constitutional provision relative to public 

use of water, said: 

11 The effect of this constitutional provision in 

declaring certain uses to be public, and the declaration of this court that the provision is self-executing, 

have the effect of foreclosing a11 inquiry into the 

question whether or not the enumerated uses are public, 

both by the legislature and the judiciary. It 

We construe Article IX, Section 3 (1) of the 1972 Constitution 

as not only reaffirming the public policy of the 1889 Constitution 

but also as recognizing and confirming all rights acquired under 

that Constitution and the implementing statutes enacted thereunder. 

Construed in this context, Article IX, Section 3, with the exception 

of subdivision (4), is self-executing. 

As urged by respondents, legislation may be enacted in contemplation of constitutional provisions to become effective at a later 
date. State ex rel. Woodahl v. Straub, 164 Mont. 141, 520 P.2d 776, 

31 St.Rep. 138. Proceeding from this premise respondents argue 

the repeal of section 89-829, R.C.M. 1947, took effect before the 

effective date of the 1972 Constitution with the result that 

appellant had no existing right that could be recognized and confirmed. The routing of the repealing provision of the Act through 

section 43-512, R.C.M. 1947, has the effect of giving these statutory provisions priority over the 1972 Constitution. The statutory repealing provision and section 43-512, operating together, 

say that appellant has lost its right to proceed under section 

89-829, R.C.M. 1947. On the other hand, Article IX and the 

transition clause of the 1972 Constitution express an intent to 

the contrary. 

The supremacy of constitutional mandates is too well established to require citation. This principle is summarized in 16 

Am Jur 2d, Constitutional Law, 5 56: 

It A written constitution is not only the direct 

and basic expression of the sovereign will, it 

is also the absolute rule of action and decision 

for all departments and offices of government 

with respect to all matters covered by it, and 

must control as it is written until it is changed 

by the authority which established it. No function 

of government can be discharged in disregard of or 

in opposition to the fundamental law. The state 

constitution is the mandate of a sovenzign people to 

its servants and representatives. No one of them has 

a right to ignore or disregard its mandates, and the 

legislature, the executive officers, and the judiciary cannot lawfully act beyond its limitations. 11 

Montana is in accord. 0'~annon v. Gustafson, 130 Mont. 402, 

303 P.2d 938; State ex rel. Nagle v. Stafford, 97 Mont. 275, 34 

P.2d 372; State ex rel. DuFresne v. Leslie, 100 Mont. 449, 50 

Against this background we turn to the question of whether 

appellant has an existing right within the meaning of the key words 

of Article IX, Section 3(1), 1972 Constitution -- "All existing 

rights to the use of any waters * * *. " We construe these words 

in the light of the established principles of construction as stated 

in 16 C.J.S. Constitutional Law, 5 19: 
I I The words of a constitution may not be ignored as 

meaningless * 5;. If the language used is clear and 

unambiguous its meaning and intent are to be ascertained 

from the instrument itself by construing the language 

as it is written. Unless the content suggests otherwise, 

words are to be given their natural obvious or ordinary 

meaning. + 

* * There is no occasion for construction 

where the language is plain and definite. 11 

See also: State ex rel. Stafford v. Fox-Great Falls Theatre 

Corp., 114 Mont. 52, 132 P.2d 689; Rider v. Cooney, 94 Mont. 295, 

The word "rights" is limited only by the word "existing". 

Outside this limitation it extends to "All", a word that needs no 

definition. We agree with amicus curiae that priority in appropriation of water is a valuable right and quote with approval 

from the cited Utah case, Whitmore v. Murray City, 107 Utah 445, 

"* * Although it is true that plaintiff does not 

and cannot have a right to the use of the water until 

he has completed his works and put it to a beneficial 

use, nevertheless, the right to proceed and acquire 

this right by complying with the statutory requirements 

is a valuable right and its value often depends upon its 

priority. * * * 

I I Property rights in water consist not alone in 

the amount of the appropriation, but, also, in the 

priority of the appropriation. It often happens that 

the chief value of an appropriation consists in its 

priority over other appropriations in the same natural 

stream. Hence, to deprive a person of his priority is 

to deprive him of a most valuable property right. * * *" 

The word "existing" is to be examined in the context of the 

law under which appellant commenced its action. Rider v. Cooney, 

supra. Appellant's priority came into existence on November 30, 

1972. Respondents1 efforts herein to remove whatever priority 

appellant might have gained by commencing its appropriation is 

a recognition of the existence of that right. 

The words "to" and "use" are to be examined in their relationship to the constitutionally declared policy of "public use" and 

also in the context of section 89-829, R.C.M. 1947. The filing 

of a petition under section 89-829 is the first step leading to 

11 use", it being an integral part of putting water to public and 
11 I1 beneficial use. Limiting use" to perfected or actual use" 

would nullify the existing right of priority created by the filing. 

When the inter-relationship of these words is considered 

together with the body of the law to which they relate, they 

retain their natural meaning. When so read, appellant had "existing 

rights" when the 1972 Constitution and the Montana Water Use Act 

went into effect. 

Other rules governing constitutional construction fortify the 

meaning we have given to Article IX, 1972 Montana Constitution. 

16 C.J.S. Constitutional Law $5 14 to 16, state: 

11 In construing a constitution, its essential character 

must always be kept in mind. * * J" It is to be regarded 

as fundamental law to which all other laws must yield, 

and should be interpreted in such a manner as to carry 

out the broad general principles of government stated 

therein * * *. 11 A constitution, or provision thereof, should receive a 

reasonable and practical internretation in accord with 

common sense. Confusion, ambiguity or contradiction 

should be avoided if possible. Of two alternative constructions, that which gives rise to fewer or less complicated questions should be favored, ** * * I1 The prime effort or fundamental purpose in construing a 

constitutional provision,, is to ascertain and give 

effect to the intent of the framers and of the people 

who adopted it. The court, therefore should constantly 

keep in mind the object sought to be accomplished * * * and 

proper regard should be given to the evil:, if any, 

sought to be prevented or remedied,J< ;k J". 

The construction we have given to Article IX, Section 3(1), 

1972 Montana Constitution, would entitle appellant to proceed in 

the absence of the transition clause. The transition clause furI1 nishes the final touch. It affirms the rights recognized and 

confirmed" by Article IX. 

In view of the disposition herein made it is not necessary to 

consider the legislative intent so extensively discussed by counsel. 

We note, however, that the Water Use Act discloses a legislative 

construction consistent with the constitutional provision. Legislative construction of constitutional provisions, though not conclusive, is entitled to great weight. Johnson v. City of Great 
Falls, 38 Mont. 369, 99 P. 1059; State v. Toomey, 135 Mont. 35, 

Judgment of the district court is reversed. 

District Judge, sitting for Chief 

Justice James T. Harrison. 

We Concur: 

Justices. 

Chief Justice James T. Harrison and Justice Gene B. Daly 

took no part in this opinion, deeming themselves disqualified.