Montana Attorney General Opinion 16-68

Opinion No. 68. Montana Rural Rehabilitation Cor- poration-Rural Rehabilitation Corporation - Attorney General, Opinions. HELD: The Montana Rural Re- habilitation Corporation is a private corporation, organized under the laws of Montana in the form prescribed for other corporations operating for profit, and the Attorney General is OPINIONS OF THE ATTORNEY GENERAL 63 not permitted to act as its legal ad- viser. March 26, 1935. Dr. D. M. Warren Second Vice-President Montana Rural Rehabilitation Cor- poration Helena, Montana We have your letter of March 19, requesting the opinion of this office as to the negotiability of a proposed form of promissory note to be used by the Montana Rural Rehabilitation Corporation. Although, for reasons hereinafter stated, we are not permitted to ren- der official opinions to the Montana Rural Rehabilitation Corporation, as a matter of courtesy I will express my personal opinion to you upon the matter. I think that portion of the note which provides that the note is pay- able "in cash or in part cash and part work, at the option of the Montana Rural Rehabilitation Corporation," renders the note non-negotiable. How- ever, if the words "Montana Rural Rehabilitation Corporation" were stricken and the word "holder" were inserted, the note would be negotiable. Although the law requires that in order to be negotiable the instrument must contain an unconditional prom- ise, or order, to pay a sum certain in money (Sec. 8408, R. C. M. 1921), there is another provision which provides that the negotiable character of an in- strument otherwise negotiable is not affected by a provision which gives the holder an election to require some- thing to be done in lieu of payment of money. (Sec. 8412, R. C. M. 1921, as amended by Chapter 143, Laws of 1923) . As the note is now written it does not give the "holder" the option to accept some other service in lieu of money, but gives only the original payee, namely, the Montana Rural Rehabilitation Corporation, the right to elect just how the payment shall be made. The foregoing matter is not one of policy, or concerning any grave ques- tion of law affecting the organization or powers of the corporation. It is merely a question concerning a minor detail in the functioning of the cor- poration, and there can be no doubt that in the future there will be nu- merous questions of detail arise. Al- though we are not permitted to ad- vise private corporations, we would bend every effort to assist in settling any problem of major importance. We cannot, however, undertake to pass upon the great mass of detail which the operation of the corporation will entail. The Montana Rural Rehabilitation Corporation is a private corporation, organized under the laws of this state in the form prescribed for other cor- porations operating for profit. I re- alize, of course, that it is not intended that the corporation shall profit, but nevertheless that is the form which the incorporators have chosen to adopt. This office is not authorized to use its appropriation of State mon- ey, or its facilities, to advise or repre- sent individuals or corporations. Un- der Section 199 (5), R. C. M. 1921, this office acts as legal adviser to all state officers, boards of county com- missioners and county attorneys and, of course, only in matters relating to their official duties. We note that your letter is written on the printed stationery of the Mon- tana Relief Commission and we are aware that you are also Assistant State Administrator of Relief, as well as Second Vice-President of the Mon- tana Rural Rehabilitation Corpora- tion. It is true that Section 14 of Chapter 109, Laws of 1935, provides that "The Attorney General shall act as legal adviser to the Montana Relief Commission and shall perform such services as it may request." But it is our opinion that the Commission is limited to requests for opinions that are concerned with the affairs of the Commission as such. The Commis- sion is not authorized by Section 14, supra, to request the Attorney Gen- eral to advise or represent any private person, partnership, company or cor- poration. We have not overlooked Senate Joint Resolution No.8, adopted by both houses of the Twenty-fourth Legislative Assembly, which pro- vides: "That the Montana Rural Re- habilitation Corporation be recognized and designated as a public agency and instrumentality of the State" " .. 64 OPINIONS OF THE ATTORNEY GENERAL and authorizing the various officers, boards, courts and governing bodies of the State now engaged in the re- lief of destitution and unemployment to cooperate with said corporation." This resolution does not give either this office or the Montana Relief Commission any additional powers or impose any additional duties. It is "merely a suggestion," or "formal ex- pression of the opinion or will of the legislative assembly, adopted by vote"; it offers no protection and does not have the effect of law. (54 C. J. 721.) The case of State ex reI. Pey- ton v. Cunningham (39 Mont. 197, 103 Pac. 49, 18 Ann. Cas. 705), is squarely in point. In that case the court held that a house joint resolution confer- ring authority upon the I3tate game war<;len to appoint the widow of a deputy warden, who was killed in the discharge of his duties, a deputy in addition to those already authorized by law was invalid and that on man- damus the State Auditor properly re- fused to issue a warrant as such deputy warden. The .following language of Chief Justice Brantly in the Peyton case is applicable here and may be quoted at length to advantage: "* * * under the Constitution the question whether an Act of legisla- tion has the force of law does not depend merely upon the constitu- tional majorities of the two Houses having so determined, but also upon certain requirements to be observed as to the form in which, and the mode by which, their will is express- ed. No determination can have the force of law unless these require- ments have been observed. (Cooley's Constitutional Limitations, 7th Ed., p. 186; State v. Platt, 2 S. C. 150, 16 Am. Rep. 647; Burritt v. Com- missioners of State Contracts, 120 TIL 322, 11 N. E. 180.) "Article V of the Constitution de- clares: " 'Sec. 19. No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose. " 'Sec. 20. The enacting clause of every law shall be as follows: 'Be it enacted by the Legislative Assembly of the State of Montana.' " 'Sec. 23. No bill, except general appropriation bills, and bills for the codification and general revision of the laws, shall be passed containing more than one subject which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.' "These provisions are to be con- strued as mandatory and prohibitory, because there is no exception to their requirements expressed any- where in the Constitution. (Section 29, Article III.) Hence they are ex- clusive, and any expression of its will by the legislative body as law, even though it be by unanimous vote, in a form other than as therein pre- scribed, is void. "The resolution under which rela- trix claims is not in the form of a bill. It has no enacting clause. It has no title. Therefore, though it was passed by both Houses and ap- proved by the governor, it is of no avail as an authoritative expression of the legislative will upon the sub- ject with which it deals. It is not, in effect, an amendment to the Act of March 5, nor, as an independent piece of legislation, can it be consid- ered as having created an office. Addressed, as it is, to the state game and fish warden, it has not even an advisory force, since it advises him to appoint relatrix to an office which does not exist. This conclu- sion seems inevitable, in view of the provisions of the Constitution re- ferred to. If the legislature may disregard these provisions, there is no other which it might not with equal propriety disregard, with the result that that branch of the gov- ernment would act without limitation or restriction other than the whim or caprice of the majority. So the courts of all the states having con- stitutional provisions similar to them have refused to recognize mere re- solutions adopted by the legislature, whether joint or concurrent, or whether approved by the executive or not, as having the force of law. (Collier & Cleveland Lith. Co. v. Henderson, 18 Colo. 259, 32 Pac. 417; Mullan v. State, 114 Cal. 578, 46 Pac. 670, 34 L. R. A. 262; May v. Rice, OPINIONS OF THE ATTORNEY GENERAL 65 Auditor, 91 Ind. 546; Rice, Auditor v. State ex reI. Drapier, 95 Ind. 33; Reynolds, Auditor, v. Blue, 47 Ala. 711; State v. Kinney, 56 Ohio St. 721, 47 N. E. 569; Burritt v. Com- missioners of State Contracts, 120 TIl. 322, 11 N. E. 180; City of Antonio v. Micklejohn, 89 Tex. 79, 33 S. W. 735; Boyers v. Crane, Auditor, 1 W. Va. 176.) The respondent properly refused to issue the warrants de- manded." We might add in passing that even if Senate Joint Resolution NO.8 had been passed and approved as a law, in- stead of as a resolution, it is possible that additional objections could be made to such a law in so far as it would not comply with Article V, Sec- tion 26 of the Constitution of Mon- tana, which forbids the legislative as- sembly from passing any local or spe- cial laws granting exclusive privileges to any corporation, and Article XIII, Section I, which provides: "Neither the state, nor any county, city, town, municipality, nor other subdivision of the state, shall ever give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corpor- ation, or become a subscriber to, or a shareholder in, any company or cor- poration, or a joint owner with any person, company or corporation, ex- cept as to such ownership as may ac- crue to the state by operation or provision of law." It is with sincere regret that we have been compelled to advise you as we have for we understand that the Montana Rural Rehabilitation Cor- poration is undertaking a splendid work for the everlasting benefit of the people of this State, and we wish to assure you that this office would be happy to be of assistance to the corporation in its great efforts. But, as you 'will understand, it is our sworn duty in all things to act only according to the law.