Montana Attorney General Opinion 15-292

Opinion No. 292 Sccl-etary of State-Duties-Pl'oposed Constitutional Amendment, Publication of. HE,LD: '1'he Secretary of State ma~' not exercise his discretion but nlluit publish a proposed amendment to the "tate constitution in accordance with Sec. fI, Art. XIX, even though the hill submitting the proposed amendment he of douhtful validity. August 7, 1933. You request ad,-ice on the following" proposition: The twenty-third Le/,>1.s- lative Assembly of Montnna passed Renate Bill 30, now Chaptel- 52. Laws of 1933, providing for the submission to .the electorate of a Constitutional Amendment, adding Section -Hi to Ar- ticle V. The amendment llUrports to provide for a state budget. 'l'he jour- nal of the House shows that the bill was not entered in fuIl thereon as re- quired by Section 9. Article XIX of the Constitution, neither was the title of the Bill entered on the House .Tournal on third reading. You desire an opinion from this of- fice as to whether or not your depart- ment should proceed with the publica- tion of the proposed amendment in ,-iew of the fact tha t the act does not comply with some of the provisions of the Constitution g-overning the suhmis- sion of a mendmentJ':. The biJI being of doubtful validity. ~-ou desire to avoid the waste of public funds by uReless I,ublica tioll, if possible. 1t is our opinion that your duty in this instance is purely ministerial and that ~-ou haye no discretion in the premises and mnst have the puhlica- tion made as provided in Section fI, Alticle XIX of the Constitution. "If the law direct an officer to perform an act in regard to which no discre- tion is committed to him, and which, upon the facts existing, he is bound to perform, then the act is ministerial. ... " Roherts v. United States, 176 U. S. 221; 40 C .. T. 1210. S'ectiun 9. Article XIX referred to above directs the publication of pro- posed amendments. It provides that the Secretary of State shall cause snch publication to be made, leaving no dis- C'l'etion to such officer. Mandamus will lie to compel a public hoard or officer to do a ministerial act, (State y. Board 4-2 Mont. G2; State \". Rotwitt. 15 Mont. :!9; Sta te v. Moulton. 57 ~font. 4-14) and if you refused to make the puh- lication a writ of mandate would no doubt be g"ranted to compel the pub- lication. Furthermore, to determine whether an Act is legal or not is a power vested exclusively in the comts. (Kadderly Y. City of Portland, 74 Pac. 710; State v. HaIl, 15!l N. W. 281; Boyd '-. Olcott, 202 Pac. 431.). 'l'he constitutional question illyo!\'ed in Chapter 52 has not been decided by UUl' Supreme Court in a very satisfac- tory way. In Durfee v. Harper, 22 Mont. 3.54 it was held that an amend- ment not entered on the .Tournals of the two Honses was not legally sub- mitted. This decision was by Justice HUllt, concurred in by Chief Justice Brantly and Justice Pigott. In State \". Alderson, 49 Mont. 387, it was held that publication of a proposed amend- ment for less than three months was 198 OPINIONS OF THE ATTOR~EY GE~ERAL not a legal submission. In the Tax Com- mission ease, 68 l\Iont. 450, three of the fh'e Justices held that an amendment that was entered in full on the Journal of the House but not on the .Journal of the Senate was a "substantial com- pliance" with the law .. Justices Galen and Cooper vigorously dissented. Both the majorit~· and minority opinion cited numerous adjudicated cases to support their respective conclusions. Section n. Article XIX of our Constitution Pl-O' vides that .proposed amendments shall he entered in full on the respective Journals of each House. It is difficult to reconcile the majority decision in thc '!'ax Commission case with this plain command of the Constitution. hut this case is almost directly in point with the matter ~-ou submit. and is th(> latest expression of our Supreme Court lind must govern until modified or overruled. From any view of the matter, we are therefore of the opinion that you are required to cause publication of the proposed amendment. (Note: See Tipton v. Mitchell. H7 :Uont. 420, where Secretary of State'was enjoined from publishing because of de- fects in legislative action in passing the Act.)