No. 12843 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

GENERAL AGRICULTURE CORPORATION, Plaintiff and Appellant,

PAUL J. MOORE and 

### LUELLA MAY MOORE, husband and wife, etal., 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: 

### 8dJHon. Arthur Martin, District Judge, sittingfor Chief Justice James T. Harrison, delivered the Opinion of the Court:
The circumstances leading to this appeal arebrief. On November 30, 1972, plaintiff filed 

### itspetition seeking to appropriate surplus waters from an adjudicated streamunder 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 UseAct. 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### its action, was repealed.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 thenew 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 tohave, 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 districtcourt's dismissal isderived from section 43-512, R..C.M. 1947, which provides:

11

Any statutemay be repealed atany time, except when it 

### isotherwise provided therein. Persons actingunder any statuteare deemed tohave acted incontemplation 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 statuteisunconditionally repealed without a saving clause in favor of pending suits, allpending proceedings thereunder are terminated. 

# ** Moreover, inthe absence of any constitutional saving clause, a judgment rendered by virtue of the terms of a statute which is repealed 

### isvoid, 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. 73Am 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., 63Mont. 223, 230, 207 

### P. 116. Initially on appeal,arguments presented in behalf of appellantwere 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 submittedwhich placed emphasis on constitutional considerations rather than legislative intent. We agree that constitutionalprovisions are controlling in disposition of this appeal. A,rticle111, Sec. 15,of the 1889 Montana Constitution, provided: 

## h he use of allwater now appropriated, or that may hereafter be appropriated for sale, rental,distribution, or other beneficial use, and the right ofway 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, shallbe held to be a public use.* f: 

# *"
In 1972,Montana adopted a new donstitutionwhich became effective on July 1, 1973, Subdivisions (2) and (3) of Section 3,A.rticleIX 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 1972Constitution contains this provision:

f1

### 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 ifno 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 thosewho adopt a constitution to make some of its provisions selfexecuting.

# **

# *

II



### A provision is self-executingwhen it can be given effectwithout 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 doesnot of itselfprevent 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 furtheranceof the purposes, or of the enforcement,of the provision. See also: State ex rel. Stafford v. Fox-Great Falls Theatre Corp.

## , 114Mont. This Court in State v. Aitchison, 96Mont. 335, 341, 30 P.2d 805, in discussing the constitutionalprovision relative to public
use of water, said:

11



### The effect of this constitutionalprovision 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 construeArticle IX, Section 

### 3 (1) of the 1972Constitution as not only reaffirming the public policy of the 1889 Constitution but also as recognizing and confirming all rightsacquired 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, legislationmay be enacted in contemplation of constitutionalprovisions to become effective at a later

### date. State ex rel. Woodahl v. Straub, 164Mont. 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 Constitutionwith 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 1972Constitution. 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 sovereignwill, 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 sovenzignpeople to its servants and representatives. No one of themhas 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, 130Mont. 402, 303 P.2d 938; State ex rel. Nagle v. Stafford, 97Mont. 275, 34 P.2d 372; State ex rel. DuFresnev. Leslie, 100Mont. 449, 50
Against this background we turn to the question ofwhether appellant has an existing right within the meaning of the keywords ofArticle 

### IX,Section 3(1), 1972 Constitution

# -- "All existing rights to the

# use of any waters

# **

# *." We construe thesewords in the light of the established principles of construction as stated in 16 C.J.S. Constitutional Law, 5 19:I IThe words of a constitution may not be ignored as meaningless 

# * 5;. If the language used isclear and unambiguous itsmeaning and intent are tobe ascertained from the instrument itself by construing the language as it iswritten. Unless the content suggests otherwise, words are tobe given their natural obvious or ordinary meaning. +

# ** There 

### isno occasion for construction where the language 

### isplain 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 hisworks and put it toa beneficial use, nevertheless, the right to proceed and acquire thisright by complying with the statutoryrequirements 

### is a valuable right and 

### its value often depends upon 

### its priority. 

# ***

IIProperty rights inwater 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 todeprive him of a most valuable property right. 

# ***" The word "existing" 

### is tobe 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 effortsherein toremove 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 tobe 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", itbeing an integral part of putting water topublic and11 I1 beneficial use. Limiting use" toperfected or actual use" would nullify the existing right of priority createdby the filing. When the inter-relationship of thesewords isconsidered together with the body of the law towhich they relate, they retain theirnatural meaning. When so read, appellant had "existing rights" when the 1972 Constitution and theMontana Water Use Act went into effect. Other rules governing constitutional construction fortify the meaning we have given toArticle IX, 1972Montana Constitution. 16 C.J.S. Constitutional Law 

### $5 14 to 16, state:

11

In construing a constitution, 

### its essentialcharacter must always be kept in mind. 

# *

# * J" It 

### is tobe regarded as fundamental law towhich allother laws must yield, and should be interpreted in such a manner as tocarry 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 ifpossible. Of two alternativeconstructions, 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 tobe accomplished

# *

# ** and proper regard should be given to the evil:, if any, sought tobe prevented or remedied,J< ;k J". The construction

### wehave given toArticle IX, Section 3(1), 1972 Montana Constitution, would entitleappellant toproceed 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 isnot necessary to consider the legislative intent so extensively discussed by counsel. Wenote, however, that theWater 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 GreatFalls, 38 Mont. 369, 99 P. 1059; Statev. Toomey, 135 Mont. 

### 35,
Judgment of the district court is reversed.

District Judge, sitting for Chief JusticeJames T. Harrison.

We Concur:

Justices.

Chief Justice James T. Harrison and Justice Gene B. Daly took no part inthis opinion, deeming themselves disqualified.