Montana Attorney General Opinion 15-44

Opinion No. 44 Legislature-Anticipat.ory ugislatioIl -Intoxil'ating Liquol's. HELD: That the legislative assem- hl~' may pass a valid act relating to the licensing and regula tion of intoxica ting liquors to become cffective upon a val- id modification of the Volstead Act or the Eighteenth Amendment. January 25, 1n:::3. I have ~'our inquiry as follows: "i\IIlY the present TA:'gislative As- ::;emhl~' anticipate cong'l'essional action so as to introduC'e lind pa::;s legislation which will ohtain for ;Uontana re\'ennc from lieenRc and regnla tion in the ('yent that after adjonrnment of the 'prese'nt Legislative Assembly, the pres- ent Congress, or the coming Congress may mOdif)' the Volstead Act, or the Eighteenth Amendment." In my opinion the legislative assem- hly may pass a valid act relating to the licensing nnd regulation of intoxi- cating liquors to become effective upon modification of the Volstead Act or the Eighteenth Amendment (assuming, of course, that any such modification of the Volstead Act he constitutional). Discussion 'rhe question prcsented is whether or not such a statute would be in con- flict with the present Volstead Act or the Eighteenth Amendment to the Con- stitution of the United States. It would not conflict with either the pres- ent Volstead Act or the Eighteenth Amendment of the United States be- OPI~IOI\S OF THE ATTORXEY GEXERAL 39 cause upon its face it would specifi- cally provide that it should not ha"e any effect until it could .Iawfully be operative under both those Fedeml regulations. The general rule is stated in 59 C. J. 1137 as follows: "The general rule is that a statute speaks from the time it goes into ef- fect alHl not otherwise. whetJler that time be the day of its enactment or some future day to which the power enacting the statute has postponed the time of its taking effect. The fixing of a date either by the statute itself or by constitutional provision, when a statute shall be effective, is equivalent to a legislath'e declaration that the statute shall have no effect until the date designMed; flnd since a statute not yet in effect cannot he considered by the court, the period of time intervening between its passage and its taking effect is not to be eounted; but such a statute must be construed as -if passed on the day when it took effect. 'Vhile a statute may have a potential eXistence, al- though it will not go into operation until a future time, until the time ar- rives when it is to take effect and he in force. a statute which has been passed hy both houses of the legisla- ture and approved hy the executive has no force whatever for any pur- pose. Before that time no rights may be acquired under it and no one is bound to regulate his conduct accord- ing to its terms, and flll acts purport- ing to have been done under it plior to that time are void." That rule was applied in Neisel v. J\fOJ'an, 80 Fla. 98, 85 S. 346. This case is "ery closely in point upon the facts. By the terms of the 1l~lorida Constitu- tion there was a county local option upon the prohibition question and the legislature had no power to enact the prohibition law. On November 5, 1918, the people adopted an amendment to the Constitution prohibiting the use of intoxicating 1'iquors. By the terms of the amendment it became effective January 1, I!)I!). On December 7, 1918, the Govel1lor signed an act passed by the le/,'islatUI'e in special session pro- ,iding for the enforcement of the Con- stitutional amendment prohibiting the trafficking in intoxicating liquor. It will be obsen'ed that at the time the act was passed and approved the constitutional amendment was not yet in effect and therefore the legislature was without power to pass a prohibi- tion act which would be effective in pl'eSenti; however, the legislature did not atteml)t to pass an act which would be effective in pt'esenti and pt'ovided that the aot should go into effect the first day of January, 191B, which was the same day that the constitut,ional amendment would go into effect. In a vet"Y well reasoned and well written opinion the Supreme Court of ll'lorida held that the law passed by the legis- la ture was ,·alid. The decision clearly distinguishes cases which seem to take the opposite view but is too lengthy for quotation here. Another case somewhat in point is that of State v. Not·them Pacific Ry. Co. (Wash.) 102 Pac. 876. In that case the state enacted a law regulating the hours of lahor of certain railway em- ployees. 'rhe same year Congress of the United States passed an act upon the same subject matter but it provid- ed that it would not take effect until one year after its passage. The sub- ject matter being one upon which the act of Congress would control the act of Congress would ha ve made the state act inoperati"e immediately Ul)On the passage of the act of Congress were it not for the pl'o\ision that the act of Congress should not take effect for olle year. An action was brought against the Xorthern Pacific Railway Company for a penalty undet· the state law. The company defended the action nlleging tha t the offense under the sta te law was committed af·ter the passage of the act of COllgress (although before the one year period) and thalt the act of Congress superseded the state law im- mediately upon its passage. . Concern- ing this the Supreme Court of 'Vash- ington said: "Since. therefore, both the congres- l>ional and state statutes relate to the same subject-rna tter, and pUl1)Ort to regulate the same specific acts, it is manifest that the congressional stat- ute superseded the stn-te statute at some point of time determined by the determination of the status of the congressiollu I act bet.ween the time of 40 OPINIONS OF THE ATTORNEY GENERAL its enactment on March 4, 1907, and the time it bec.'lme actively operative on ~Iarch 4, 1908. If it had the ef- fect of law during the period it re- mained in suspension, then manifestly the state statute never went into ef- fect in so far as it related to roads engaged in intersbate commerce; while on the other hand, if it became effective as a law at the expiration of the year, the state statute became effective as against roads engaged in intrastate commerce on June 12, 1907, and continued in force until March 4, 1908, and was operative at the time the acts here complained of were commit- ted. The general rule is that a stat- ute speaks from the time it goes into effect, whether that time lJe the day of its enactment or some future day to which the power enacting the stat- ute has postponed the time of its tak- ,ing effect. 'A law must be under- stood as beginning to speak at the moment it takes effect, and not be- fore. If passed to take effect at a future day, it must be construed as if passed on that day, and ordered to take immediate effect.' Rice v. Rud- diman, 10 Mich. 125. 'A statute passed to take effect at a future day must be understood as speaking from the time it goes into operation and not from the time of passage. Thus, the words 'heretofore', 'hereafter', and the like have reference to the time the statute becomes effective as a law. and not to the time of passage. Before that time no rights may be acquired under it, and no one is bound to regulate his conduct according to its terms. It is equivalent to a legis- lative dectaration -that the statute shall have no effect until the desig· nated day.' 26 Am. & Eng. Ency. Law, 2d. ed., 565. See also Price v. Hopkins, 13 Mich. 318; Grant v. City of Alpena, 107 Mich. 335, 65 N. W. 230; G., H. & S. A. Ry. Co. v. S'tate, 81 Tex. 572, 17 S. W. 67; Jackman v. Carland, 6-l Me. 133; Evansville & Crawfordsville R. R. Co. v. Barbee, 59 Ind. 592. "Applying this prinCiple to this ques- tion before us, it seems clear that the federal statute did not speak as a statute until after March 4, 1908, the date on which it went into effect; for if'a law passed to take effect at a fu- ture day must be construed as if passed on that day, and if prior to the time it goes into effect no rights can be acquired under it and no one i~ hound to regulate his conduct accord· ing to its terms, it is idle to say that it has the effect of a statute between the time of its passage and the time of its tah"ing effect. A statute cannot be hoth operative and inoperatiYe at the same time. It is either a law or it is not a law; and, without special words of limitation, when it goes into effect for one purpose, it goes into effect for all purposes. So with this statute it cannot he a law between the day ·of its passage and the day it is made to go into effect for the purpose of superseding the state statute. alHl not a law for any other purpose." See also State v. Bockelman, 240 S. W. 209, (Mo.). In the case of Broadwatet· v. Kendig, 80 Mont. 515, the court in considering a city ordinance changing the salary of the mayor used the following lan- guage: "A statute to take effect in futuro is a law in praesenti. An Act has a potential e:\."istence upon its pas- sage despite the fact that its effective <la~' is IJostponed. That a statute or constitutional provision may have a potential existence, but which will not go into actual operation until a future time, is familiar law." I do not think that this statement should be taken to mean that a law such as contemplated would be invalid. ~'he case did not im'olve any question as to the yalidit~' of the statute and is not in point upon the facts. It is a familiar rule that the legislature may pass laws to be operatiYe in futm'o un- less the constitution prohibits it. There is nothing in the constitution prohibit- ing such enactments and the Supreme Court of this state has recogni7~d such enactments. S'ection HO, R. C. ~:L 1H21, prov,ides that unless a different time is prescribed in a statute it shall take effect on July 1 of the year of its pas- sage and approval. This has the effect of delaying the operation and effective- ness of 'a statute from three to five months depending upon the tillle of passage and approval. WHhout discussing the matter the Supreme Court of this state has given full effect to tha t section in a t least OPDilOXS OF THE ATTORXEY GE~ERAL 41 three cases. 1n the following three cases it is held that hecause of section 00, R. C. M. 11121, statutes in question had no effect whate\'er until July 1. See: Gustafson v. Hammond In'. Dis- trict, 87 1\lont. 217, Nat·ional Supply Co. v. Abell, 87 Mont. 555, Glacier County v. Schlinski, 300 Pac. 270. There is no constitutional prov'ision in the constitution of the State of ;\:[on- tana prohibiting a statute from being made effecth'e on the happeninl; of a condition or a contingency. In the ah- sence of a constitutional prohibition statutes may hecome effecti\'e on the happening of certain conditions or con- tingenoies. (5D C .. T. 1156, 12 C .. T. RH4, 8(5). In State v. &'lthie (Ore.) 199 Pac. 169, the court said: "The contention that the ·act of .Tanuary 20, 1920, providing for the execution of the penalty for murder in the first degree, because its taking effect is made dependent upon the adoption by the people of the consti- tutional amendment, is im'alid, is fuBy answered in the negative and settled in this state by the decision of this court in Libby v. Olcott. 66. Ore. 124. 134 Pac. 13, where a similar con- tention nrose. Mr .. Justice Burnett there summed up the argument by ~aying: "All the Legislature has done in this connection has been to provide in ad- vance a rule of action to he observed in case certain conditions arise, and it was well within its prerogati\'e when it did so." Ree. also. State ex reI. v. 'Wilcox, 45 :\10 . .. G8: Alcol'll v. Hamer, 38 Mis~. {;52; Hmne Insurance Co. \'. Swil;ert, 1().l Ill. 6.'53, 655. . '1'his rule is supported by the follow- ing cases and lUany others: Pel'Shing COlmty v. Sixth Judicial ])istt'ict Ct., (Ne\'.) 181 Pac. 960; Gillesby v. Boal'(1 of Com's. (Ida.) 107 Pac. 71; People v. San Bernal'dino High School Dist. (Cal.) 216 Pac. 959, 961. Inclosed is a suggested clause to be added to such hill as you will prepare. T shall be glad to confer with your Committee whenHer it desires.