municipalities therein held not objectionable, 24. Constitutional law 15-Effect should be as in conflict with article 8, § 13 relating to given to all of provisions. judicial districts.

"Section 7. The Legislative Assembly may, by general or special law, provide any plan, kind, manner or form of municipal government for counties, or counties and cities and towns. or cities and towns, and whenever deemed necessary or advisable, may abolish city or town government and unite, consolidate or merge cities and towns and county under one municipal government, and any limitations in this 26-Constitution not Constitution notwithstanding, may designate grant of power, but limitation thereof. the name, fix and prescribe the number, desigConstitution is not a grant of power, but a nation, terms, qualifications, method of aplimitation thereof. pointment, election or removal of the officers

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(225 P.)

thereof, define their duties and fix penalties for the violation thereof, and fix and define boundaries of the territory so governed, and may provide for the discontinuance of such form of government when deemed advisable; provided, however, that no form of government permitted in this section shall be adopted or discontinued until after it is submitted to the qualified electors in the territory affected and by them approved." Chapter 113, Session Laws 1921, p. 119.

At the general election held in November, 1922, the people voted in favor of the proposed amendment, and by proclamation it was declared to be a part of the Constitution. Acting in pursuance of the amendment, the Eighteenth Legislative Assembly enacted a law designed to authorize the consolidation of the corporate existence and government of the county of Silver Bow and all cities and towns within that county into a municipality to be known as "City and County of Butte." This act (chapter 160 of the Session Laws of 1923, p. 480) was approved March 14, 1923.

will only, and is instituted solely for the good of the whole."

"The people of the state have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state, and to alter and abolish their Constitution and form of government, whenever they may deem it necessary to their safety and happiness, provided such change be not repugnant to the Constitution of the United States."

[1] That the forms prescribed for the submission of the amendment to the people have been followed is not questioned, and here as always we enter upon a consideration of the validity of a constitutional amendment after its adoption by the people with every presumption in its favor: The question is not whether it is possible to condemn the amendment, but whether it is possible to uphold it, and we shall not condemn it unless in our judgment its nullity is manifest beyond a reasonable doubt. State ex rel. Hay v. Alderson, 49 Mont. 387, 142 Pac. 210, Ann. Cas. 1916B, 39; Martien v. Porter, 68 Mont. 219 Pac. 817.

[2, 3] (a) The first objection, vigorously asserted, is that section 7 of article 16 is not an amendment to the Constitution, but an attempted revision. Revision, it is said, can be done only by a constitutional convention under the provisions of section 8 of article 19 of the Constitution, which provides:

"The Legislative Assembly may at any time, by a vote of two-thirds of the members elected to each house, submit to the electors of the state the question whether there shall be a convention to revise, alter, or amend this Constitution," etc.,

On January 22, 1924, a petition signed by at least, 2,500 electors of Silver Bow county was filed with the county clerk, requesting that the adoption of the act be submitted to the electors of Silver Bow county. The county clerk, having found that the petition was signed by the required number of electors, on February 4th certified the fact to the board of county commissioners, which on February 11 fixed May 12, 1924, as the day for holding the election. Thereupon Arthur V. Corry, as relator, brought this action against the board and the county clerk, seeking an injunction to prohibit those officers from proceeding with the election. We issued an or--while section 9, upon which the amendment der to show cause, returnable April 5, 1924. is based, relates to amendments only. In the meantime M. J. Sheehan, a creditor of the city of Butte and also of the county of Silver Bow, by permission of the court filed a complaint in intervention, likewise asking for an injunction to prevent the election. The respondents, through the county attorney of Silver Bow county, appeared by motion to quash the citation and also filed a general demurrer to the petition for an injunction, as well as to the complaint in intervention. A number of attorneys and counselors at law residing in the city of Butte were permitted to appear as amici curiæ, and the cause was submitted upon the merits upon the date fixed in the citation.

The objection is not tenable. The Legislature in proposing section 7 to article 16 did not intend to "revise" the Constitution, either in whole or in part. Revision as contemplated in section 8 implies a re-examination and restatement of the Constitution, or some part of it, in a corrected or improved form. The revision may be with or without material change; but clearly, as the word is used in the section, it implies the probability of extensive and comprehensive action by the convention. See Sutherland on Statutory Construction (Lewis' Ed.) § 269; Pratt Institute v. City of New York, 183 N. Y. 151, 75 N. E. 1119, 5 Ann. Cas. 198.

[4] In legislative parlance "amendment" is an alteration or change of something proposed in a bill or established as law. Bouvier's Law Dictionary. A statute which adds

Counsel for relator and intervener have attacked the validity of the constitutional amendment itself and of the act upon numerous grounds. A minor attack is based upon an alleged insufficiency of the petition sub-a provision to a section or an existing statmitting the Act to the people.

I. As preliminary we heed the voice of sections 1 and 2 of article 3, being the first two sections of the Declaration of Rights:

"All political power is vested in and derived from the people; all government of right originates with the people; is founded upon their 225 P.-64

ute is an amendment. Henderson v. City of
Galveston, 102 Tex. 163, 114 S. W. 108. Gen-
erally speaking, an amendment repeals or
changes some provision of a pre-existing
Board of
law or adds something thereto.
Public Instructions v. Board of Commission-
ers, 58 Fla. 391, 50 South. 574.

[5] The word "amendment" is clearly susceptible to a construction which would make it cover several propositions, all tending to effect and carry out one general object or purpose, and all connected with one subject, as well as to the construction that every proposition which effects a change in the Constitution, or adds to or takes from it, is an amendment. Words and Phrases, "Amendment"; State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785; People ex rel. Elder v. Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34.

That the act was simply intended as amendatory of the Constitution is indicated by its purpose.

When the convention which framed our Constitution was in session a committee, variously known as that on "County, City and Town Government" and as "City, County and Town Organizations," proposed article 16 under the head of "Municipal Corporations and Officers." This is the only article which has to do with municipal corporations and officers as such. It embraces the general subject of counties, county officers, and section 6 thereof says:

"The Legislative Assembly may provide for the election or appointment of such other county, township, precinct and municipal officers as public convenience may require and their terms of office shall be as prescribed by law, not in any case to exceed two years, except as in this Constitution otherwise provided."

the amendment was in the first instance to furnish to the people an avenue of escape from the evils which have grown out of what is generally termed the aldermanic system of municipal government, as well as from the disadvantages arising from duplication in government in counties where large cities exist. The evils coeval with aldermanic government in cities are known to everybody. Indeed one conspicuous failure of the American people in government-a subject of adverse comment by statesmen everywhere—. has been that which has grown out of the aldermanic system.

The framers drew the amendment with a broad view of the aspirations of a progressive society looking forward to a betterment of its local governmental conditions. It was perceived that more modern plans or forms of government might be desired by counties, cities, and towns, either separately or jointly; that consolidation of county and city governments, or mergers of city or town governments, might be favored. By the proposed amendment these objects were to be made possible, dependent always upon the popular will determined at the polls. Whether the objects sought to be attained may be achieved by means of the plan proposed is a question upon which we shall not express or even intimate an opinion. If we were qualified to do so it would not be within our province.

It is manifest that when the Legislature proposed and the people adopted section 7 it was the intention to repose in the people residing in the respective municipalities, or quasi municipalities, named, the privilege of changing radically, if they so desire, their former system of local government.

[7] (b) But it is insisted that section 7 undertook to and did present to the electors of the state more than one amendment, violating section 9 of article 19 in two particulars: (1) Section 9 provides that "should more amendments than one be submitted at the same election, they shall be so prepared and distinguished by numbers or otherwise that each can be voted upon separately," which was not done; (2) more than three amendments were submitted which section 9 proAs illustrative, it is said section 7

[6] The term "municipal officers" means city or town officers. State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 Pac. 940. That the framers of the section used the phrase advisedly to distinguish city and town officers from county and township officers is beyond question. They were endeavoring to comprehend in this section officers of counties, townships, precincts, cities, and towns. That they "did not intend municipal corporations to include counties is clear, for the two terms are used, as in this section, to distinguish different organizations." Hersey v. Neilson, 47 Mont. 132, 131 Pac. 30, Ann. Cas. 1914C, 963. It is true that for convenience the officers of clerk of the district court, county at-hibits. torney, and justice of the peace are enumer- attempts to authorize the legislative assemated among judicial offices (article 8, §§ 18, bly; to pass local or special laws in violation 19, 20; State ex rel. Rowe v. Kehoe, 49 Mont. of the provisions of section 26 of article 5; 582, 144 Pac. 162); but vacancies in these, as to authorize the repeal of section 19 of artiin case of all other county, township, and cle 8 as to such portions of the state of precinct offices (except county commission- Montana as may adopt the same; and likeers), shall be filled by the board of county wise as to sections 20 and 26 of article 8, and commissioners (article 16, § 5). Counties, section 5 of article 16. Others are suggested cities, and towns are referred to in other sec- which will be mentioned in subsequent portions of the Constitution, but only when in- tions of this opinion. hibitions are prescribed (as illustrative, article 5, § 26; article 12, § 6; article 13, §§ 1, 3, 5, 6), or when benefits are conferred or provided for (as illustrative, article 5, § 26; article 12, §§ 2, 5).

The objection that the amendment, although in the form of but one, in reality consists of more than three, is not tenable. Constitutional provisions necessarily are couched in broad language for they are deIt cannot be doubted that the purpose of signed to have a comprehensive scope and

(225 P.)

operation. When we examine the section [nal Constitution (adopted in contemplation under consideration critically, we see that of forms of county and municipal government it has but one purpose, one design: To permit then familiar to the original framers) would the Legislature by general or special law be modified, impinged upon, or superseded. to provide a legal method, within the limita- This is the inevitable result of provisions tions mentioned in the amendment, whereby amendatory of a pre-existing law. counties, or counties and cities and towns, or cities and towns, may adopt what may be termed a municipal form of government. It easily stands the test stated by this court in State ex rel. Hay v. Alderson, 49 Mont. 387, 142 Pac. 210, Ann. Cas. 1916B, 39:

"The fact that an amendment can be separated into two or more propositions, concerning the value of which diversity of opinion may exist is not alone decisive. If, in the light of common sense, the propositions have to do with different subjects, if they are so essentially unrelated that their association is artificial, they are not one; but if they may be logically viewed as parts or aspects of a single plan, then the constitutional requirement is met in their submission as one amendment."

"If later amendments destroy. impinge upon, modify, or wipe out old provisions, the newer provisions must stand, because they are the last utterance of the people, who reserve to themselves the right to change the organic law, in the way provided by the organic law itself." Falstaff Corporation v. Allen (D. C.) 278 Fed.

643.

And

If the amendment seeks to do anything at all, it seeks to repose in the people the right to change their local form of government from the old system to a newer one. incidentally it looks ahead to a time beyond the present era; under this amendment it was intended that the people should be enabled to change their plan, kind, manner, or form of municipal or quasi municipal government from time to time as the development of their economic or social status might require. State ex rel. Fenner v. Kenting, 53 Mont. 371, 163 Pac. 1156. To achieve this end, manifestly it was imperative that provi

The fact that an amendment impinges up on or affects various provisions of the Constitution is not in itself persuasive that essential unity was violated in its submission. The real question is whether the operation of the amendment relates to a single plan or purpose. Apt language appears in State v.sions in the Constitution prior to the amendTimme, 54 Wis. 318, 11 N. W. 785:

* *

ment should yield to the new expression of the people's will. Hence the phrase in the amendment "any limitation in this Constitution notwithstanding."

If the new plan, kind, manner, or form of municipal government which the amendment seeks to make possible-a plan, kind, manner, or form to be prescribed by the Legislature and adopted by a vote of the people-is to be effective, it must be in harmony with the new provision, and not be fettered with old provisions which would destroy it.

"This provision can have but two constructions: First, it may be construed that every proposition in the shape of an amendment to the Constitution, which standing alone changes or abolishes any of its present provisions, or adds any new provision thereto, shall be so drawn that it can be submitted separately, and must be so submitted. Such a construction would, we think, be so narrow as to render it practically impossible to amend the Constitution; or, if not practically impossible, it would compel the submission of an amendment which, although having but one object in view, might consist of considerable detail, and each separate provision, though all promotive of the same object and necessary to the perfection and practical usefulness thereof if adopted as a whole, in such form that a defeat of one of its important matters of detail might destroy the usefulness of all the other * provisions when adopted. We think amendments to the Constitution, which the section above quoted requires shall be submitted separately, must be construed to mean amendments which have different objects and ly a few of the objections urged by counsel purposes in view. In order to constitute more for petitioner and for intervenor. than one amendment, the propositions submitted must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other."

* *

And see People ex rel. Elder v. Sours, supra; People v. Prevost, 55 Colo. 199, 134 Pac. 129; Gottstein v. Lister, 88 Wash. 462, 153 Pac. 595, Ann. Cas. 1917D, 1008; 12 C. J. 691, and notes.

By the enactment of the amendment it was a necessary corollary that parts of the origi

[8] II. Section 7 of article 16 is now a part of the Constitution of the state, and is in force equally with any other part of the Constitution. "It is not only a part of the Constitution, but it is there to stay until the authority which voted it in shall vote it out." People v. Cassiday, 50 Colo. 503, 117 Pac. 357.

Upon what has just been said we might rest from further consideration of this branch of the case. But we shall note brief

[9, 10] (a) Numerous objections are based upon the theory that the amendment violates section 26 of article 5, which prohibits the Legislature from passing a local or special act in particulars mentioned in that section; for instance, regulating county affairs, creating offices, or prescribing the pow

ers and duties of officers in counties and

cities. And likewise our attention is called to section 31 of article 5 which provides:

"Except as otherwise provided in this Constitution, no law shall extend the term of any

public officer, or increase or diminish his salary | nothing of the kind; it simply removes limior emolument after his election or appointment. tations which theretofore existed.