The Bozeman courier. (Bozeman, Mont.) 1919-1954, 1923-09-05
THE PEOPLES FORUM
What May The Supreme Court DO
In The Tax Commission Case?
BY NJ. r. WILSON

Cey mght nave a TAX omm1SSlon snail De ruIueSs
This is not a matter of partisan politics; and it should not be SC viewed
and discussed. 1t is a matter directly affecting the entire people Nor did
the matter "a thodghtfuHy considered, discussed from the public rostrum,
among the people, and argued pro and cm through the press of the State
as a live, important issue; a legislature vas elected Oh this and other issues,
who had a mandate from the people, among other things, to propose the
necessary amendment to the constitution that this question might be sub
mnted to a vote of the people; the people in entire good faith did their
part; and it ws presumed that their servants in the Legislature would do
their duty, and prepare the necessary amendment in proper form The neces-
say amendment wa proposed, duly promulgated, thoroughly and exhaus-
lively discussed for almost two years; and the people relying upon the pre-
sumption that their Legislators would do, and had done, their duty, adopted
said amendment by a large and unquestoned majority.
1t is now suggested that the peoples earnest efforts for months and
years may count for naught on this much-mooted question, because of the
two small words I'm FULL" that appear in the constitution.
1t is true that the constitution is the fundamental law Of this State
But it is also true that the constitution is but the creature of the people
and was framed and adopted by them to protect and serve them; and it is
beyond caWl that the people have the right not only to amend their consttu-
ton. but they car if they deem it necessary, wise and expedient, do away
with the entire constitution and frame and adopt another in its stead.
In the present instance, the people have not only acted throughout in
entire good faith, but they have done everything incumbent upon them to
make al important but comparatively small change in their constitution
They arr lot at fault in any particular herein. Shall their duly expressed
wish in this matter be thwarted because in the hurly-burly of the legislature
inadvertently the words "N FULL" were not noted and complied with-an
inadvertence that a not noticed by any n during months and years of
heated discussion?
There are three sections of the constitution to consider in this con-
nechon:
o. a majority OF all ne moer present m eacn mousse hr unless on us
voting be entered on the journal"
provision Of the constituHon-THE BILL SHALL NOT BECOME A LAW.
II. (Sec. 27 of Art. W "The presiding officer of each house shall, in
resolutions passed by the legislative assembly Immediately after their titles
have been publicly read, and the fact Of signing shall be at nee entered
upon the journal"
It should be noted that there is no penalty attached for not making this
entry in the journals. Such omission will not invaHdate a law that has been
regularly passed, signed by the presiding officers, and approved by the
III. Csec. 8 of Art. XIX amendments to this constitution may be
proposed in either house of the legislative assembly, and if the same be
voted for by twothrds of the members elected to each house, such proposed
amendments, together with the ayes and nays of each house thereon, shall
be entered IN FULL Of their respective journals"
Again it should be noted that there is no penalty provided for a failure
to make such entries. The constitution does not provided that the amend
ments shall fail, if such entries are MOI made in the respective journals.
In the case Of State v Long, q Mont. 26, the Supreme Court says:
"The journal omitted to show the fact that the bill in question was
signed by the presiding officer of each house. The enrolled bill bears the
signature Of such presiding officers, and appellants do not aver OF argue
shat the bill vas not, as a fact, duly signed by such presiding officers.
IN presumption IS that the Legislature n the officers thereof did
their duty, and the enrolled bill was regularly passed. This presumption is
strong M IS mdulged n by the judicial branch OF the government As neces-
say to the peace and good Of the state" Whatever may be the rule in
respect to the power Of the court to go back Of IN enrolled bill where it is
Hrecty charged tina the journal misrepresents facts. yet N a case where
the journal simply mhs to affnmatvdy show that al act was done which
ought to have been done, by the rule of the constitution prescribing the
observance of a form of proceeding by the legislature, the courts cannot go
behind the enrolled bill to ascertain whether such forms we're observed. and
viii rely upon its attendant presumptions of regularity.
In Railroad Co. V. Governor. % Mo. 33, Judge Scott thus ably states
the principle which controls: Whilst the power of the courts tO declare a
law unconstitutional is admitted on all hands al being necessary to pre-
in relation to laws which o n their face show that the congthuHonsl limits
have been transcribed. The reaso of this principle limits the claim Of
jurisdiction to such cases. The constitution is designed to limit the powers
Of the government, and to confne each of the departments to its appropriate
sphere. If the legislature exceeds its power in the enactment of a law. the
courts, being sworn to support the constitution, must judge that law by the
standard OF n constitution, and declare its validity. But the question
whether a law OIL its face violates the constitution is very different from
that growing out of the noncompliance with the forms required to be observed
anus enactment. III Oe oe case a power Is exercised lot delegated, OF
which is prohibited, and the question of the validity of the law is determined
from the language of it. In the other, the law is not in it's terms contrary
to the constitution; OIL its face it is regular, but resort is had to something
behind the law itself in order to ascertain whether the general assembly, in
constitution. This would seem like al inquisihon into the conduct of the
members of the general assembly, and it must be seen at N that it is
very delicate power, the frequent exercise of which must lead to endless
confusion in the administration of the law"
Thus it is set forth as the law in this State that the courts must not
go back of the enrolled bill, duly signed by the presiding officers of the two
houses to find out whether "te fact of signing shall be at ono entered upor
the journal has been complied with. But it may be urged that bills enacted
into laws ire to be differentiated from proposed amendments to the cOnsttu
ton. The constitution makes no distinction. "Au bills and Joint resolutions
passed by the legislative assembly" are to be passed and handled in N ac
the same manner.
Is the doctrine as laid down inState v. Long still the law Of this State
In the case of Palatne ms. Co. v. Northern Pacific Ry. Co, "a Mont. 1858
the courts did go back of the enrolled bill to determine whether m it's fina
passage the vote had been taken by ayes and noes, and the names of thos
voting had been entered on the journal This was done because of th
penalty in Sec "a of Art. v. mo bill shall become a law" Otherwise th
court said that it would have followed the law as laid down in State v LOng
But there is no penalty for not spreading proposed amendments to the con
sttuton oil the journals The law as set forth in State v. Long vas adopte
and followed in Barth ct al " POck ct al, 81 Mont. 46; and, in the case O
State ex rel Woodward V. Mouiton ct al, 81 Mont Ala, the subject was FULL