                                    No. 12842

          I N THE SUIZRlDlE COURT O THE STATE OF M N A A
                                   F              OTN

                                        1974



STATE OF M N A A e x r e l .
          OTN
ROBIN HATCH,

                            P l a i n t i f f and R e l a t o r ,



FRANK MURRAY, S e c r e t a r y o f S t a t e
o f t h e S t a t e o f Montana,

                            Defendant and Respondent.




ORIGINAL PROCEEDING :

Counsel o f Record:

      For Appellant :

             Cannon and G a r r i t y , Helena, Montana
             Donald Ga r r i t y a r g u e d , Helena, Montana
             James W. Zion a r g u e d , G r e a t F a l l s , Montana
             Emily L o r i n g a p p e a r e d , G r e a t F a l l s , Montana

      F o r Respondent:

             Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , H e l e n a ,
              Montana
             J. Michael Young, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
              Helena, Montana
             Thomas A. Budewitz, A s s i s t a n t A t t o r n e y G e n e r a l , a p p e a r e d ,
              Helena, Montana



                                                 Submitted:         August 30, 1974

                                                     Decided :SEP     16 1974
PER CURIAM:
        Prior to August 23, 1974, there were filed in the office
of Secretary of State Frank Murray approximately 16,880 signa-
tures on referendum petitions requesting House Resolution No. 4,
entitled "A JOINT RESOLUTION OF THE SENATE AND THE HOUSE OF
REPRESENTATIVES OF THE STATE OF MONTANA RATIFYING THE PROPOSED
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATING TO
EQUAL RIGHTS ON ACCOUNT OF SEX", passed by the second regular
session of the 43rd legislative assembly of the State of Montana,
be referred to the people of the state for their approval or
rejection at the general election scheduled for November 5, 1974.
On August 23, 1974, Murray duly notified Governor Thomas Judge
that the requisite number of 15,980 qulaified electors had signed
these petitions and that the referendum on House Resolution No.
4 would be placed on the November 5 ballot as Referendum No. 69.
        Thereafter Robin Hatch, a citizen and resident of the
State of Montana brought this original proceeding seeking an in-
junction from this Court permanently restraining and enjoining
Murray from taking any action to submit Referendum No. 69 to the
Montana voters at the general election.
        Because of the very short time left for Murray to properly
submit Referendum No. 69 on the election ballot, an immediate
hearing on the matter was arranged. After considering briefs and
listening to oral arguments, this Court on August 30, 1974, issued
an Order restraining and enjoining Murray from placing Referendum
No. 69 upon the ballot for the November 5, 1974, general election.
The purpose of the following opinion is to give that Order the
explanation it deserves.
        Questions concerning Hatch's standing to bring this action
and the power of the Court to exercise jurisdiction over it were
not pressed by Murray in order that the merits of the controversy
could be timely reached.
        The only issue is whether a joint resolution of the
Montana legislature ratifying a proposed amendment to the
United States Constitution may be referred to the people.
        Our Order of August 30, 1974, was mandated by the case
of Hawke v. Smith, 253 U.S. 221, 64 L.Ed. 871, 40 S.Ct. 495, which
is strikingly similar to and dispositve of the present controversy.
In Hawke, the Ohio legislature adopted a joint resolution ratify-
ing the proposed Eighteenth Amendment to the United States Con-
stitution.   The Ohio Constitution specifically provided that
ratification by the Ohio legislature of proposed amendments to
the federal constitution was subject to referendum.   A referendum
was called for under this provision and the plaintiff sued in the
Ohio State courts to enjoin the Ohio secretary of state from
spending public money in printing ballots for submission of the
referendum to the voters.    The Ohio Supreme Court held that the
referendum was proper.
        This decision was reversed by the United States Supreme
Court which found the disputed Ohio constitutional provision to
be in direct conflict with Article V of the United States Consti-
tution and therefore void.   Article V provides:
       "The congress, whenever two-thirds of both
       houses shall deem it necessary, shall propose
       amendments to this constitution, or, on the
       application of the legislatures of two-thirds
       of the several states, shall call a convention
       for proposing amendments, which, in either case,
       shall be valid to all intents and purposes, as
       part of this constitution, when ratified by the
       legislatures of three-fourths of the several
       states, or by conventions in three-fourths
       thereof, as the one or the other mode of ratifi-
       cation may be proposed by the congress * * *."
       The Court stated, at 253 U.S. 227, that:
       "The Fifth Article is a grant of authority by the
       people to Congress. The determination of the
       method of ratification is the exercise of a
       national power specifically granted by the Consti-
       tution; that power is conferred upon Congress,
       and is limited to two methods: by action of the
        legislatures of three fourths of the states,
        or conventions in like number of states.
        Dodge v. Woolsey, 18 How. 331, 348, 15 L.Ed
        401, 407. The framers of the Constitution
        might have adopted a different method.
        Ratification might have been left to a vote
        of the people, or to some aut.hority of gov-
        ernment other than that selected. The
        language of the article is plain, and admits
        of no doubt in its interpretation. It is
        not the function of courts or legislative
        bodies, national or state, to alter the
        method which the Constitution has fixed."
        The Court further stated at 253 U.S. 230:
        "It is true that the power to legislate in the
        enactment of the laws of a state is derived
        from the people of the state. But the power to
        ratify a proposed amendment to the Federal
        Constitution has its source in the Federal
        Constitution. The act of ratification by the
        state derives its authority from the Federal
        Constitution to which the state and its people
        have alike assented."
        Hawke was reaffirmed in the same term in the National
Prohibition Cases, 253 U.S. 350, 386, 64 L.Ed. 946, 40 S.Ct. 486:
        "The referendum provisions of state consti-
        tutions and statutes cannot be applied,
        consistently with the Constitution of the
        United States, in the ratification or rejec-
        tion of amendments to it."
        Ever since Hawke it has been clear that a state may not
subject ratification by its legislature of a proposed amendment
to the federal constitution to referendum nor may it otherwise
limit its legislature in the exercise of its federal function
of ratifying such amendments.   See, for example, Lesper v. Garnett,
258 U.S. 130, 66 L.Ed. 505, 42 S.Ct. 217, which struck down
constitutional provisions of several states denying their legis-
latures power to ratify a women's amendment, and Trombetta v.
State of Florida, 353 F.Supp. 575 (1973), which voided a section
of the Florida Constitution prohibiting legislative action on any
proposed amendment to the United States Constitution, unless a
majority of the legislature had been elected after the proposed
amendment had been submitted for ratification.
        Submission of Referendum No. 69 to the Montana voters
would therefore have been a useless act, since the voters can-
not constitutionally compel the legislature to rescind its
ratification of the proposed Equal Rights Amendment.
        Mary Doubek, individually and for all members of a class
known as Montana Citizens to Rescind E.R.A. has petitioned this
Court for a rehearing and for permission to intervene as a party
in this action and has also filed a complaint in intervention.
        The thrust of all these documents is to ask this Court
to rule contrary to opinions of the United States Supreme Court.
Whether she or the office of the Attorney General of Montana ask
for that relief is immaterial, this Court is bound by the United
States Supreme Court decisions and must follow them.
        The application for a rehearing is therefore denied, the
petition to be allowed to intervene is likewise denied, and the
complaint in intervention is ordered stricken.




In this cause:
        Hon. LeRoy L. McKinnon, District Judge, sat for Mr. Justice
Frank Haswell.
        Hon. Alfred B. Coate, District Judge, sat for Mr. Justice
Gene B. Daly.
        Hon. E. Gardner Brownlee, District Judge, sat for Mr.
Justice Wesley Castles.
