The producers news. [volume] (Plentywood, Mont.) 1918-1937, 1923-08-24
HEARS MONTANA POWER AND STATE PLEAS
AND CONTINUES RESTRAINT-GRANT TIME
TO FILE BRIEF AND WILL GIVE FINDING LATER

tlon at issue, Judge A. c. Spencer, of
Billings, Tuesday afternoon, took un-
! der advisement the injunction pro-
ceedings instituted by the Montana,
Great Falls and Thompson Falls pow
er companies against the state board
Of equalization and continued the in
junction restraining the board from
hearing appeals of the three power
companies or fixing assessments upon
any of their inter-cOunties property.
Expect Action Soon
At the conclusion of argument,
Judge Spencer stated he desired to ex-
anime such authorities as had been
submitted or might subsequently be
submitted and would ask counsel to
file briefs. Attorney General Rankin
replied that he had his brief prepared
and could file it at once, whereupOn
the court then gave counsel for the
power companies 20 to 80 days in
which to file their brief, they in turn
stating that no such time would be
required.
It was stipulated that final decision
in the matter might be reached and
rendered by Judge Spencer at any
place in the state, whether the neces-
sity of his returning to Helena for
that purpose.
A new angle to the question in
which the constitutionality of the
new board of equalization is assailed,
was raised by Attorney General Ran
kin during the argument in that he
suggested that in the event it might
be held that the board is not con-
stitutional board, it might still be per-
mitted to function as a statutory board
! under the authority of the act of the
Legislature providing for its creation,
setting out its powers and duties and
providing for its salaries. He added,
however, that he would not seriously
raise the question as he realized that
/ the question of constitutiOnality must
be decided in the courts and he did
not wish to interfere with that pro-
cedure.
Based on Martin Case
The action at issue Tuesday after
noon was based upon the same ques-
tion as was recently raised in the
case of G.. II. Martien to the effect
that the board of equalization was not
legally constituted because the am
endment to the constitution authoriz-
ing such board had not been sub
? mitted to the voters in full accord
with the constitution itself-that is,
that the proposed amendment had not
been entered in full on the journal of
Z the senate.
; 1t was around this question that the
argument centered Tuesday afternoon
when Judge Spencer opened court in
the department of Judge w. H. Poor
!, man, who had disqualified himself.
Attorney General W. D. Rankin
: appeared alone for the state, while
: appearance for the power companies
= was made by Attorneys w. B. Rodg
ers and Dan NJ. Kelly of Butte and
Henry c. Smith of Helena.
= Mr. Rankin first addressed the court
: in support of demurrers which he
: filed against the injunction applica-
! tions in each of the three cases after
= Attorneys Rodgers had introduced and
read into the record all references in
! the printed journal of the proceed
\ ings of the extraordinary session of
the Seventeenth legislative assembly
!, relating to senate bill No. II, by
! which the amendment to the constitu-
: ton was proposed. 1t was stipulated
: that these entries were all the entries
). contained in the journal relating to
!. this bill.
z Rankin Objects
To the introduction of these entries,
: Mr.. Rankin made formal objection on
! the ground that it is not permissible,
= under the law of the state as laid
{ down by the supreme court, to go
back of the enrolled bill except for
:. the purpose of acertaining the aye
u u and nay vote Upon this the court
y reserved ruling. Thereupon the state,
= through c. L. Walker, deputy secre-
= tary of state, introduced in evidence
! the enrolled senate bill No. II, and
= it was agreed that the text Of this bill
had been entered in full upon the
journal of the house of representa-
tives.
Mr.. Rankin made an extended ar
: gument particularly in support of his
contention that the supreme court of
Montana had held, in three separate
) instances, and in one of these, an
Il opinion by Associate Justice Math-
/ ews in the case of the state, ex rel
e Woodward versus Moulton concurred
y in by the other members of the court,
j set out ''in cases where the constitu-
/ tiOnality of an act has been question
i ed on the ground of irregularity of
legislative action, the only purpose in
g examining the journal is to ascertain
. the aye and nay vote"
n The quoted Associate Justice Hollo-
) way in writing cit is the rule in this
state that courts will not go back of
the enrolled bill except to determine
whether on final passage the names
of those voting were entered in the
e journal"
L Cites Other States
e Mr.. Rankin argued that the Kan
,e sas supreme court had sust aimed the
Il prohibition amendment despite the
'e fact that a similar error had been
made by the legislature, and that the
n Florida court had upheld a constitu-
m tional amendment which had been ap-
u
Continued on page eight)