No. 12718 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

FRANCIS 0. POULSON, 

Plaintiff and Appellant, 

-VS - 

WALSH-GROVES et a 1. , 

Defendants and Respondents. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert C. Sykes, .Judge presiding. 

Counsel of Record: 

For Appellant : 

Measure, Cumming and Salansky, Columbia Falls, 

Montana 

James A, Cumming argued, Columbia Falls, Montana 

For Respondents: 

Garlington, Lohn and Robinson, Missoula, Montana 

Gary L. Graham argued, Missoula, Montana 

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Submitted: January 10, 1975 

-TG - 2 -375 Decided: - w 

Clerk 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a summary judgment in favor of 

a prime contractor. Plaintiff, a workman employed by a subcontractor, was injured in a work train collision near Trego, 

Montana. The train was operated by an employee of the prime 

contractor. The subcontract agreement required the subcontractor to maintain workmen's compensation coverage. Subsequent to the accident plaintiff made claim for workmen's compensation benefits, which he received. 

Two issues are raised on appeal: 

(1) Does the "statutory employer" concept of section 

92-438, R.C.M. 1947, violate the equal protection clauses of 

the United States and the 1889 Montana Constitutions? 

(2) Does the 1972 Montana Constitution operate retrospectively to invalidate the immunity to statutory employers? 

This Court has repeatedly ruled on issue one. See: 

State ex rel. Hamrnond v. Hager, 160 Mont. 391, 503 P.2d 52, where 

this Court upheld the agricultural exemption of the Act against 

an equal protection argument. On appeal to the United States 

Supreme Court, 411 U.S. 912, 93 S.Ct. 1548, 36 L ed 2d 303, that 

Court dismissed the appeal for want of a substantial federal 

question. Also, in Larson v. Watters Const. Co., 161 Mont. 48, 

503 P.2d 996, this Court upheld the very provision involved in 

the instant case when presented with an argument that such a 

provision was violative of the equal protection clause of the 

Fourteenth Amendment to the Constitution of the United States 

and Art. V, Sec. 26 of the 1889 Montana Constitution. Larson 

cites Ashcraft v. Montana Power, 156 Mont. 368, 480 P.2d 812 

and Buerkle v. Montana Power Co., 157 Mont. 57, 482 P.2d 564. 

Electric 

See also: Fiscus v. BeartootM Mont . , 522 P.2d 87, 
Plaintiff-appellant acknowledges these holdings, but 

argues at length in a studious brief that the United States 

Supreme Court has enunciated a more strict standard of constitutional interpretation of the equal protection clause 

than it has used in the past. Appellant uses analysis of recent 

United States Supreme Court cases by Gunther, 86 Harvard Law 

Review 1, and Kwasnick, 26 Stanford Law Review 155, to attempt 

to show a new or different concept of the equal protection clause 

as it affects appellate court examination of legislation. The 

brief writer concludes the Court has now seemingly adopted a 

view that a close scrutiny of a statute will be made to ascertain whether the manner of accomplishing a permissible goal is 

in itself an acceptable manner. As applied to this case, appellant claims discrimination against himself out of proportion to 

possible benefits of the "statutory employer" legislation. 

Appellant in his reply brief complains that respondents' 

brief is disappointing--"a failure to enter into a dialogue on 

the relevance of a remarkable, and well marked upon, application 

of the Equal Protection Clause.'' This Court has carefully examined the rationale previously expressed in the cases heretofore 

cited and findsno reason to change its holdings. 

The second issue on appeal is whether Art 11, Sec. 16, 

1972 Montana Constitution should be given retroactive effect so 

as to bar immunity granted to statutory employees. That section 

provides in part: 

" * * * No person shall be deprived of this full 

legal redress for injury incurred in employment 

for which another person may be liable except as 

to fellow employees and his immediate employer 

who hired him if such immediate employer provides 

coverage under the Workmen's Compensation Laws 

of this state. * * *." 

The instant case involved an accident. on April 14, 1969. 

Suit was filed on April 11, 1972, just three days before the 
statute of limitations would have expired. The rights of a 

workman under Art. 11, Sec. 16, did not arise until the effective date of the new Constitution, July 1, 1973. 

As appellant expresses it, the question for decision is 

whether there is a savings clause under which litigation pending 

at the time the 1972 Constitution went into effect, reaped 

the benefit. Appellant urges that by implication Sections 3 and 

6 of the Transition Schedule applied the rights granted under 

Art. 11, Sec. 16 retrospectively. Section 3 of the Transition 

Schedule with the Convention notes reads: 

"Section 3. Prospective Operation Of Declaration 

Of Rights 

"Any rights, procedural or substantive, created 

for the first time by Article I1 shall be prospective and not retroactive." 

The Convention note reads: 

"Any new rights created in Article I1 take 

effect only after July 1, 1973. It does not 

create any rights for past events." 

That language seems clear enough, but appellant argues 

that since "any rights * * * created for the first time" are 

prospective only, that other rights mentioned might be retrospective. The "other rights" are not explained. Here, clearly, 

the right to seek redress against a statutory employer is a 

right created for the first time. Appellant would use the general provisions of Section 6 of the Transition Schedule to override the clear meaning of Section 3. But even here, Section 6 

states: 

"(2) The validity of * * * all suits, actions 

and rights of action, shall continue as if no 

change had taken place." 

Thus, we hold that all of the operative events having 

arisen long before the effective date of the 1972 Constitution, 

the action was not governed by its provisions. Compare Fiscus 
v. Beartooth Electric, - Mont . , 522 P.2d 87, 31 St. Rep. 

395; State Highway Commission v. Olsen, - Mont . - 

P.2d -- I St.Rep. - , decided February 5, 1975. 

Having found no error we affirm the judgment. 

We concur: 

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Chief Justice 

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Justices