The people's voice. [volume] (Helena, Mont.) 1939-1969, 1945-04-06

I o Vi Lie Oii6 ludi I'LL GIL pi Ia
: Claws 1913, p. 570) effected repea
9 of section 524, R. C. 1907, and it Gel
: tainly was not necessary for the dec
r sion of the Reibold case that his cour
t construe of give its Interpretation o
. said section of the initiative meas
} ure. No one had attempted to us
any of the machinery provided in tn
direct primary law for the nomination
of any candidate to be balloted on a
the December 20 1918 election. Parl
. Smith had not been nominated unde
: the direct primary law and his nomi
nation rested solely upon the compli
ance with section ga r. C. 1907, ant
not upon any procedure or method
provided for in section of the direc
primary law. Under such state O.
facts, what the court said in the Rel
bold case concerning section and
other matters relating to the direct
primary law is obiter dictum. (Cox V
Tyrone Power Enterprises, 40 Cal
App. (2d) 1888, 121 Pac. cd 829, 83S;
Miller Royal Indem. Co. v. BID. Com'rs
of Port of New Orleans, 1919 La. 1911
IL So. (2d) 355). Such statements dc
not become presidents and while they
may be respected they ought not to
control the judgment in a subsequent
proceeding when the very point is pre-
scented for decision. people " Craven
horst, 80 N. Y. S. (2d) 76O, TIA; Met
tier " Ames Realty Co., 81 Mont. 152,
201 Pac. 1922
"An obiter dictum is a gratuitous
opinion, an individual impertinence
which, whether 1t be wise or foolish,
right or wrong, bindeth none - not
even the lips that utter it." Empire
Theatre Co. v. Cloke, SO Mont. 1873,
1913 Pac. 1919
Not only did the court indulge in
obiter dictum in the Reibold case but
lit assumed to rewrite section of the
act initiated and adopted by the peo-
pie of this state, by inserting words
in section which the court consid-
cred the people had overlooked or
omitted. In the Reibold case at pages
1872 and 1888 of volume So of the Mon
tana reports, the court said Under
the construction we adopt, the mean
ing of section s and the repeating
clause becomes manifest. The open
ing sentence of section would read:
every political party shall nominate
all its candidates for public office (TO
BE VOTED FOR AT A GENERAL
ELECTION under the provisions of
this law and not in any other man
ner, and it shall not be allowed to
nominate any candidate (TO BE
VOTED FOR AT A GENERAL ELEC-
TION) in the manner provided by Sec
ton 521 of the Revised Codes, ETC."
The court in December 1918 inserted
into the peoples initiative measure
adopted at the general election of
November 1912 the 16 capitalized
words enclosed in brackets in the
above quotation from the Reibold case.
What right had the court in inter-
preting section to insert what it
deemed has been omitted? Section
10519 R. c. 1885, which has been on
the statute books continuously since
territorial days Q877) provides: "In
the construction of a statute or instru-
ment, the office of the judge is simply
to ascertain and declare what is in
terms or in substance contained there
in, not to insert what has been
omitted, or to omit what has been
inserted; and where there are several
provisions or particulars, such a con-
struction is, if possible to be adopted |
as will give effect to ALL"
If the court had power to add 16
words in section of the law, it had |
the power to add another section to
the law. 1t would have been much |
more direct and simple for the court |
to have added at the end of the law
section numbered 40 and read
ing: This act shall not apply to any
special election" Such an addition
would have effected the same result
and taken only words as against the
l6 words inserted by the court
The exception in section 2 of the
original act (sec. 632 R. CO is only
an exception as to the date and not
IS to the law. The direct primary
aw applied to municipal elections, to
he election of presidential electors, to
school elections, ETC., all of which
we're held on dates other than is pre-
'cribed in section 632, r. c.
To ascertain the plain purpose of
he law, the court need only keep in
mind the opening sentence of the
printed argument for the measure sub
nitted to the electors of this state
With the proposed measure, namely
The purpose of the direct primary
aw is to place the nomination of all '
candidates for public office directly in
he hands of the voters, thereby elm
mating the complicated caucus and {
system" Webster's New {
Dictionary I'D ed) de- {
ines the verb eliminate" thus: 81. {
20 put out of doors; to thrust out; I
To remove and get rid of by dis &
from environment or associ- t
ton; expel; exclude" If the mean i
ng of section Of the primary law {
vas not of doubtful or uncertain |
Meaning then there was no occasion t
OF the court to insert in the section /
he 16 additional words which the a
curt wrote in the law and enclosed a
I brackets. On the other hand, If +
ection proved to be of doubtful or n
ncertain meaning which l do not t
oncede, then the court was admon- g
shed by section 10519 r. c.. to adopt t
UGH construction of section 8, If n
ossible, as will give the effect to all p
the remaining 3S sections compris- Y
lg the direct primary law and the o
onrt was further aninined NV aacfinn 3