State ex rel. Tatem v. Dixon

MR. CHIEF JUSTICE CALLAWAY delivered the opinion of the court. The fact conditions in State ex rel. Mills v. Dixon, 68 Mont. 526, 219 Pac. 637, are applicable to this case except as we shall supplement them in this opinion. On October 6, 1923, the state board of education requested the state board of examiners to issue and sell series F of educational bonds of the state of Montana in the sum of $555,000, pursuant to the provisions of initiative measure No. 19. In the Mills Case the resolutions of the board of education requesting the state board of examiners to issue series D and E (pursuant to section 2 of Initiative Measure No. 19, Session Laws of 1921, p. 701), were adopted prior to the passage of Chapter 38 of the Session Laws of 1923, which Act became effective February 28, 1923, although those bonds were not issued or delivered until after the passage of that Act. Counsel for relator says: “In the present proceeding brought to test the validity of series F of educational bonds, both the resolution of the board of education and that of the board of examiners authorizing and directing the issuance of this series were passed subsequent to the enactment of Chapter 38. This is the only distinction that I am able to draw between the cases involving series D and E of educational bonds and those of series F.” If there be a distinction it' is one without a difference. It was conceded by counsel for relator and by the attorney general upon the argument that the Mills Case is directly applicable to this case and rules it. The concession is warranted by the facts and the law. The real reason for this proceeding is explained in the attorney general’s brief: “The suit is brought to satisfy a bond attorney of New York City whose approving opinion is necessary to the sale of this issue of bonds.” A bid advantageous to the state has been received by the board of examiners but is conditioned upon the approval of this attorney. Just why the opinion in the Mills Case in the judgment of the learned bond expert is not comprehensive [92] enough to relieve him from all responsibility in passing his Opinion on the validity of the bonds is not clear. His objection to the validity of the issue, as we are given to understand it, we deem utterly without merit. In the Mills Case we pointed out that the people had prescribed the method and manner of issuing bonds under the initiative measure. We adverted to the fact that the validity of the measure was upheld in State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 Pac. 841. We held, contrary to the contention of the relator in the Mills Case, that Chapter 38, supra, providing for the issuance and sale of amortization bonds did not repeal that portion of the initiative measure which relates to the issuance and sale of bonds. We held that Chapter 38 has a prospective operation only. These assertions, it seems, we are now importuned to repeat. We now say and we think in language so plain that even a hyperteehnical and hypercritical bond attorney may understand it that Initiative Measure No. 19 is good, valid, in full force and effect, and that Chapter 38 has not affected it retrospectively, prospectively or otherwise, or at all. The demurrer which the attorney general has interposed to relator’s complaint is sustained and the proceeding is dismissed. Dismissed. Associate Justices Coopee, Holloway, Galen and Stark concur.