No. 14466 

IN THE: SUPRFME COUHT OF THE STATE OF MONTANA 

1978 

STATE ex re1 . , WILLIAM J. WENZEL, 

Relator, 

FRANK my, SECIZETAW OF STATE 

OF THE STATE OF MONTANA, 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relator: 

Hooks and Budewitz , Tbmsend, Montana 

Thca~s Budewitz argued, Helena, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike JWSrath argued, Assistant Attorney General, Helena, Montana 

Steven J. Perlmutter (Intervenor) argued, Helena, Wntana 

Filed: 
Mr. Justice John C. Sheehy delivers the Opinion of the 

Court. 

The prayer of relator for an injunctive order is denied 

and his complaint dismissed for the reasons expressed herein. 

Relator, William J. Wenzel, filed on August 30, 1978, 

his complaint requesting this Court to issue a permanent 

injunction restraining and enjoining respondent Secretary of 

State, State of Montana, from taking any action to submit 

Initiative No. 80 to the electors at the general election to 

be held on November 7, 1978. 

The original complaint of the relator, and his memorandum 

filed therewith, raised questions of sufficient import that 

a majority of this Court deemed it necessary that a response 

be ordered from the Secretary of State and the matter be set 

for adversary hearing. On September 6, 1978, we issued an 

order directing service of the complaint upon the Secretary 

of State and the Attorney General, requiring a response 

within fifteen days, and setting the matter for adversary 

hearing on September 22, 1978. 

Responses and memoranda have now been received from all 

parties, as well as from Nuclear Vote, an applicant for 

intervention, and opportunity for oral argument granted to 

all parties. 

Initiative No. 80 is a proposed act empowering Montana 

voters to approve or reject any proposed nuclear power 

facility certified under the Montana Major Facility Siting 

Act. The initiative was approved as to form and title by 

the Attorney General on March 14, 1978. On July 21, 1978, 

the Secretary of State notified the Governor that sufficient 

qualified electors had signed petitions to place Initiative 

No. 80 on the ballot for the upcoming general election. 
As required by law (section 37-127 (3) , R.C.M. 1947) , 

the Attorney General has drafted and submitted to the 

Secretary of State an explanatory statement as to Initiative 

No. 80, which will be submitted to the voters at the time 

they cast their votes for or against the proposed Initiative. 

That explanatory statement is as follows: 

"The initiative would impose rigid restrictions 

before a nuclear facility could be built. 

Restrictions include: 

"1. Posting a bond equaling not less than 

30% of the capital costs of the facility 

to insure against liability. 

"2. A showing radioactive material can be 

contained with no reasonable chance of 

escape. 

"3. Comprehensive testing of similar 

physical systems in actual operation. 

"4. Approval by the Board of Natural 

Resources. 

"5. Approval by a majority of Montana 

voters in an election called by initiative or 

referendum. 

"The initiative would forbid limitations on 

the rights of persons to seek compensation 

for injuries resulting from operation of 

the facility." 

Relator, as a Montana property owner, taxpayer, and 

registered elector, alleged in his complaint that Initiative 

No. 80 is illegal in that its title does not clearly express 

the subject matter of the Initiative, the Attorney General's 

explanatory statement does not give a true and impartial statement of the purposes of the Initiative, and the statement of 

the implications of the vote on the ballot form does not 

clearly explain the meaning of the vote for or against the issue. 

Relator further contends the Initiative is unconstitutional 

as special legislation and for the further reason that Congress 

has pre-empted the authority to regulate radiation hazards. 
On these grounds, relator contends the expenditure of 

public monies by the Secretary of State in putting Initiative 

No. 80 to a vote is illegal, unconstitutional, and injurious 

to relator and all other taxpayers and electors similarly 

situated. 

It appears by affidavit of the Chief Deputy Secretary 

of State that since the filing of the action in this Court, 

but before oral argument thereon, the Secretary of State's 

office has certified, on September 8, 1978, all ballot 

measures to the county clerks, as required by section 37- 

135, R.C.M. 1947. It further appears that the duty of the 

Secretary of State to furnish a voter information pamphlet 

for all ballot measures must be distributed to the qualified 

electors 30 days prior to the election. The Secretary of 

State, because of the time requirement, has committed himself 

to order 500,000 such pamphlets, and submitted final proofs 

to the printer before September 12, 1978. The final press 

run on these pamphlets began on September 17, 1978, and the 

pamphlets will be shipped directly to the county clerks by 

the printer. Any change of the ballot form would require an 

insert to be prepared by the Secretary of State, requiring 

approximately 10,000 pounds of paper, and additional costs 

of printing and shipping. In addition, the inserts would 

have to be manually placed in each pamphlet by the county 

clerk and recorder in each respective county. 

The ballot form to which relator objects as to the 

implication of a vote for or against the measure is stated 

in the following language: 
"FOR giving Montana voters power to approve 

or reject any proposed major nuclear power 

facility and establishing nuclear safety 

and liability standards 

"AGAINST giving Montana voters power to approve 

or reject any proposed major nuclear power 

facility and establishing nuclear safety and 

liability standards." 

The principal issues argued by relator are (1) both 

the Attorney General's statement, and his statement of the 

implication of the vote for or against on the form ballot, 

are insufficient and inadequate because they do not inform 

the voters that a vote for the measure would in effect be a 

ban or prohibition of nuclear power plants in Montana; (2) 

to adopt Initiative No. 80 would be illegal because the 

Congress has pre-empted the field of nuclear power plant 

regulation. 

The Secretary of State, the Attorney General and intervener counter these issues by defending the title of the Initiative,the form of the explanatory statement, and the ballot 

form. They contend further relator has no standing to sue 

in this action and that relator's complaint does not raise a 

justiciable controversy. The Attorney General further 

charges laches on the part of the relator. 

The Title of the Act 

The title of the Initiative as certified to the Governor 

by the Secretary of State, is as follows: 

"AN ACT EMPOWERING MONTANA VOTERS TO APPROVE 

OR REJECT ANY PROPOSED NUCLEAR POWER FACILITY 

CERTIFIED UNDER THE MONTANA MAJOR FACILITY 

SITING ACT; DEFINING TERMS; ESTABLISHING 

STATE SAFETY AND FINANCIAL LIABILITY STANDARDS 

FOR MAJOR NUCLEAR FACILITIES; EXEMPTING MEDICAL 

AND RESEARCH FACILITIES; PROVIDING FOR PUBLICATION 

OF EMERGENCY EVACUATION PLANS; INVALIDATING 

EMERGENCY APPROVAL AUTHORITY FOR NUCLEAR FACILITIES; 

AMENDING SECTION 70-804, REVISED CODES OF MONTANA, 

1947." 
The 1972 Mont. Const., Art. VII, §11(3), provides that 

an act "shall contain only one subject, clearly expressed in 

its title". Relator contends the foregoing title of the 

Initiative is misleading in that it does not clearly express 

the subject matter. 

The source of relator's contention lies in section 

4(1) (a) of the Initiative, which contains a requirement that 

no certificate to construct a nuclear facility may be issued 

by the board unless it first finds that no limits exist 

regarding the rights of a [person] to bring suit for and 

recover full and just compensation from the entities responsible for the nuclear plant and further that no legal limits 

exist regarding the total compensation recoverable from such 

responsible parties. Relator contends the clear import of 

the restrictions in section 4(l) (a) and other related 

provisions is to - ban the construction of any and all power 

facilities in the State of Montana. He further contends the 

provisions of the Price-Anderson Act, particularly Title 42, 

U.S. Code, 52210, provides for a top total liability for a 

single nuclear incident of $560 million. Relator states 

this limitation of recoverable amount contained in the 

federal statute cannot be squared with the language in the 

proposed Initiative. Therefore, says relator, an applicant 

for a proposed nuclear facility in Montana could not comply 

with both the State and federal provisions respecting limits 

of liability and right to recovery, and in effect the passage 

of Initiative 80 would be a ban on the erection of any 

nuclear facilities in this State. 

Respondent and intervention petitioners answer relator's 

contention in two ways. First, they claim under the PriceAnderson Act, the Nuclear Regulatory Commission (NRC) has 

the power to waive the $560 million limitation in exchange 
for a promise from an applicant for permission to build a 

nuclear plant, that the applicant waives the usual common 

law defenses and statutes of limitation with respect to 

possible claimants and accept "strict liability" as to the 

plan, design, direction, maintenance and operation of the 

plant. Therefore, respondents contend there is no impossible 

clash between the proposed Initiative and the Price-Anderson 

Act. Second, they maintain there is a presumption against 

pre-emption as between State and federal regulations (Savage 

v. Jones (1912), 225 U.S. 501, 32 S.Ct. 715, 56 L Ed 1182); 

that utility siting is traditionally within State control 

(Rice v. Santa Fe Elevator Company (1947), 331 U.S. 218, 

230, 67 S.Ct. 1146, 91 L Ed 1447); and that Congress has not 

in any event pre-empted the whole of the nuclear power plant 

field, but at most a limited portion thereof (Kelly v. 

Washington (1937), 302 U.S. 1, 58 S.Ct. 87, 82 L Ed 3). 

The Attorney General, on behalf of respondent, Secretary 

of State, adds that Initiative No. 80 is not unconstitutional 

on its face and that until the Initiative has become codified 

as law, there is no justiciable controversy in existence now 

for this Court to decide. The Attorney General also contends 

the preponderant weight of authority throughout the United 

States is that enactment of legislation may not be enjoined 

on the grounds of alleged substantive unconstitutionality, 

citing Bardwell v. Parrish Counsel (LA 1949), 44 S.2d 107, 

19 A.L.R. 2d 514; State ex rel. Kittel v. Bigelow (Ohio 

1941), 37 N.E.2d 41; Unlimited Progress v. City of Portland 

(Oregon 1958), 324 P.2d 239 and cases annoted in 19 A.L.R. 

2d 519. 

We must agree with the Attorney General, that after 

examination of the provision of the proposed Initiative, on 

its face, the Initiative is not unconstitutional. This 

takes it out of the operation of State ex rel. Steen v. Murray 
(1964), 144 Mont. 61, 394 P.2d 761, where this Court did 

enjoin the Secretary of State from placing an Initiative on 

the ballot which was on its face unconstitutional because it 

would preclude the legislature from prohibiting gambling. 

We therefore examine the title of the Initiative based 

upon the provisions of the Initiative itself. We find the 

title conforms to the constitutional rule that the subject 

of the Initiative text be clearly expressed in the title. 

We make that determination based upon the rules of construction 

set out in State v. McKinney (1904), 29 Mont. 375, 74 P. 

1095; and Evers v. Hudson (1907), 36 Mont. 135, 142, 92 P. 

462. 

The Attorney General's Statement 

Relator's contentions with respect to the Attorney 

General's statement are akin to his objections to the title 

of the Initiative. Relator contends the statement should 

inform the voter that the proposed Initiative is in effect 

a "ban" or a "prohibition" on nuclear facilities in the 

State, and that the Attorney General should use those words 

or words of like import in his statement. 

In Sawyer Stores, Inc. v. Mitchell, et al. (1936), 103 

Mont. 148, 62 P.2d 342, this Court enjoined the Secretary of 

State from placing an Initiative which purported to tax 

chain stores on the ballot. This Court found the explanatory 

statement, then written by the Secretary of State, was 

clearly misleading, in that it did not mention the tax 

applied not only to chain stores, but to individually-owned 

stores. We do not have that situation here. The statement 

of the Attorney General as we have quoted it above, fairly 

states to the voters what is proposed within the Initiative. 
Relator contends the Attorney General has no discretion 

in this matter and that because in relator's view, the 

proposed Initiative is indeed a ban, the Attorney General 

must be directed to insert the words "ban" or a similar word 

in his statement to the voters. We hold, however, that as 

long as the Attorney General in his explanatory statement 

uses "ordinary plain language," explains the general purpose 

of the issues submitted, in language that is true and impartial, 

and not argumentative or likely to create prejudice either 

for or against the issue, he has followed the law (section 

37-127(3), R.C.M. 1947). His discretion as to the choice of 

language in following the provisions of section 37-127(3) is 

entirely his. 

We do not find the word "ban" or a word of like import 

should be contained in the statement for the same reasons 

that we do not find such words necessary in the title of the 

Initiative. 

Standing to Sue Issue and Justiciable Controversy 

The relator as a taxpayer, property owner and elector, 

has standing to sue to prevent the waste of public monies, 

Sawyer Stores Inc. v. Mitchell, supra, and accordingly had 

the right to bring this action. Unfortunately, because of 

the lapse of time here and the necessity for the Secretary 

of State to comply with the election laws, expenses have 

been incurred and will be incurred by the Secretary of State 

that are unavoidable, although this action was pending. 

Therefore, most of relator's attempt to save public money 

has now gone by the boards. Nevertheless, he has standing 

to sue in this action. 

The question of whether he presents a justiciable 

controversy however, is a quite different question. The 

Initiative has not been approved or adopted, no applicant 

-9- 
appears yet for a certificate of authority to locate a 

nuclear power facility and no present rights of such an 

applicant are involved in this case. We said in Holt v. 

Custer County (1926), 75 Mont. 328, 243 P. 811: 

"To invoke the jurisdiction of a court of 

justice, it is essential that there be 

involved a genuine existing controversy 

calling for the adjudication of present 

rights involved. The courts are not 

constituted nor operated for the 

vindication of parties with respect to 

their conception of the correct application 

of the law, and it does not devolve upon 

them to decide questions not arising in 

the due course of litigation simply for 

the gratification of the parties or 

others." 75 Mont. at 331. 

The controversies upon which relator relies are the 

possible pre-emption of the field by the federal Congress 

and the possible inability to comply both with the Initiative 

and the Price-Anderson Act. These are matters not presently 

before us because proper parties to raise such issues and to 

define and delineate the same in litigation are not before 

us. Accordingly, we do not find a justiciable controversy 

about which we must make a decision is presented by the 

relator's complaint. 

Interpretation of this Opinion 

There are other contentions raised by relator and other 

parties, but they need no discussion by us, as we are of the 

opinion Initiative No. 80 is validly proposed for adoption 

or rejection by the electors at this time. We also find that 

the Attorney General's statement of the implications of the 

vote are fairly stated. 

Beyond stating the Initiative is one properly submitted 

for a vote, nothing in this opinion should be interpreted 

as an expression of opinion by us, one way or the other, 

as to the merits of the proposed Initiative, or as to any 

future issues of constitutionality or validity therein, or 
the application of the provisions of the Initiative, if 

it should be adopted into law. This opinion is limited to 

the proposition that we find nothing in the matters presented 

to us that invalidates the submission of Initiative No. 80 

to a vote. 

The complaint of relator for an injunction is denied 

and the complaint dismissed. It is not necessary to act on 

the intervener's application for intervention. No party is 

entitled to costs or attorney fees from any other party. 

. - 

We Concur: 

Chief Justice 

Justices d