### No. 12718 IN

### THE SUPREME COURT OF 

### THE STATE OF MONTANA 1975

FRANCIS 0. 

### POULSON, Plaintiff and Appellant,

-VS

# - WALSH-GROVES eta

### 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

-- 

### Submitted: January 10, 1975 -TG - 2

### -375 Decided: 

## - w



### ClerkMr. JusticeWesley Castlesdelivered the Opinion of the Court.
This 

### is an appeal from a summary judgment infavor 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 tomaintain workmen's compensation coverage. Subsequent tothe accident plaintiff made claim for workmen's compensation benefits, which he received. Two issues areraised 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 1889Montana Constitutions? (2) Does the 1972 Montana Constitution operate retrospectively toinvalidate the immunity tostatutory employers? This Court has repeatedly ruled on issue one. See: State ex 

### rel. Hamrnond v. Hager, 160Mont. 391, 503 P.2d 52, where thisCourt upheld the agricultural exemption of theAct against

an equal protection argument. On appeal totheUnited States Supreme Court, 411U.S. 912, 93 S.Ct. 1548, 36 Led 2d 303, that Court dismissed the appeal forwant of a substantial federal question. Also, inLarson v. Watters Const. Co., 161Mont. 48, 503 P.2d 996, this Court upheld thevery 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 tothe Constitution of the United States and Art. V, Sec. 26 of the 1889Montana Constitution. Larson citesAshcraft 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 studiousbrief that the United States Supreme Court has enunciated a more strict standard of constitutional interpretation of the equalprotection 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 claimsdiscrimination against himself out of proportion to possible benefits of the "statutoryemployer" legislation. Appellant in his reply brief complains that respondents' brief isdisappointing--"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 iswhether 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 fellowemployees and his immediate employer who hired him if such immediate employer provides coverageunder the Workmen's Compensation Laws of this state. 

## * * 

## *." The instant case involved an accident.onApril 14, 1969. Suit was filed on April 11, 1972, just three days before thestatuteof limitationswould have expired. The rights of a workman under Art. 11, Sec. 16, did not arise until the effective dateof the new Constitution, July 1, 1973. Asappellant expresses it, the question for decision is whether there 

### isa savings clause under which litigationpending atthe 

### time the 1972 Constitution went intoeffect, reaped thebenefit. Appellant urges thatby 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

### timeby Article I1 shallbe prospective and not retroactive." The Convention note reads: "Any new rights created inArticle I1 take effect only afterJuly 1, 1973. It does not create any rightsfor past events." That language seems clear enough, but appellant argues that since "any rights

## * 

## * * created forthe firsttime" are prospective only, that other rightsmentioned might be retrospective. The "other rights" arenot explained. Here, clearly, theright to seek redress against a statutory employer isa right created for the firsttime. Appellant would use the generalprovisions of Section 6of the Transition Schedule tooverride the clearmeaning of Section 3. But even here, Section 6 states: "(2) The validity of 

## * * * all suits, actions and rights of action, shallcontinue as if no change had taken place." Thus, 

### we hold that allof the operative events having arisenlong before the effective dateof the 1972 Constitution, the action

### wasnot governed by itsprovisions. Compare Fiscusv. 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:

-?

-A* - 

## - -. 

# -. ..- 4--+----------r------------------- Chief Justice

--.

Justices