                               No. 85-441
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   1986



GALLATIN COUNTY, STATE OF MONTANA,
by and through its BOARD OF COUNTY
COMMISSIONERS, Joy I. Nash, Chairman,
Wilbur Visser, and Jane Jelinski, Members,
                Plaintiff and Respondent,


RICHARD McCLUE ,
                Defendant, Third Party Plaintiff
                and Appellant,


GARY W. PRINGLE, as Clerk and Recorder
of Gallatin County, Montana and as
Election Administrator,
                Third Party Defendant and Respondent.



APPEAL FROM:    District Court of the Eighteenth Judicial District,
                In and for the County of Gallatin,
                The Honorable Mark Sullivan, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                Nash, Wellcome, Frost, Guenther & Zimmer; Page
                Wellcome argued, Bozeman, Montana
       For Respondent:
                A. Michael Salvagni, County Attorney, Bozeman,
                Montana
                Thomas R. Anacker argued, Deputy County Attorney, Rozeman


                                          --   --       - -   -   --




                                   Submitted:       April 21, 1986
                                    Decided:        June 25, 1986




                                f ~ ,
                                   G&&-&l
                                  Clerk
Mr. Justice John C.         Sheehy delivered the Opinion of the
Court.


     Appell-a-nt,
                Richard McClue, appeals from the order of the
District Court,       Eighteenth      Judicial    District, County     of
Gallatin, enjoining him from taking the office of Gallatin
County    surveyor, dismissing his counterclaim for writ of
mandamus and petition for writ of mandamus, declaring the
office of        Gallatin County     surveyor vacant, and         awarding
respondents their costs and attorney fees for their defense
of the counterclaim for writ of mandamus.
        On November 6, 1984, a general election was held in
Gallatin County, Montana.          The office of county surveyor was
listed on the ballot, but there were no candidates listed for
the surveyor office.         McClue received the highest number of
write-in    votes    for    the    office   of   county   surveyor.    On
November 21, 1984, the Board of County Canvassers certified
McClue as the person having the highest number of votes for
the office.
     On November 23, 1984, Gary Pringle, the Gallatin County
Clerk     and    Recorder    and    election     administrator,    orally
notified McClue of the results of the election.              On November
26, 1984, Pringle issued a certificate of election to McClue
and later delivered the certificate of election to him.
     On December 31, 1984, respondent, Gallatin County Board
of County Commissioners, filed a complaint for permanent
injunction against McClue.          A temporary restraining order and
order to        show cause were      issued restraining McClue        from
taking the oath of office and taking the office of Gallatin
County surveyor.      On January 4, 1985, a show cause hearing on
the temporary restraining order was held                  in open court.
After    the   hearing,     the   District   Court   issued    an    order
granting a preliminary injunction.
       On April 29, 1985, a hearing was held on McClue's writ
of mandamus.     McClue testified at the hearing that he was a
resident of Bozeman, Montana, and a seismic surveyor.                   He
also    testified    that   he    is   not   a   licensed   professional
engineer, but that he had served in the U.S. Army for three
years as a surveyor and did construction and topographic
surveying.     McClue also spent eight months surveying with the
Montana Highway Department and a year and a half with Sage
Engineers in Billings doing general surveying work including
subdivisions.       For the three and a half years prior to his
election he had been involved in oil exploration.                   McClue
detailed his education as           five months pre-engineering         in
Billings and a Bachelor of Science degree in mechanical
engineering technology from Montana. State University.                The
record of this case also discloses that at least ten other
county surveyors currently holding office do not meet the
qualifications of S 7-4-2801, MCA.
       Prior to being amended in 1985, S 7-4-2801, MCA (1983)
provided   for the qualifications for the office of county
surveyor as follows:
       [I]   A county surveyor shall be a professional
       engineer, not less than 22 years of age, who shall
       have been in active practice of his profession for
       at least 3 years and who shall have had responsible
       charge of work as a principal or assistant for at
       least one year.      Graduation from a school of
       engineering shall be considered as equivalent to 2
       years of active practice.
       The District Court found McClue was not a professional
engineer and had not been duly registered and licensed as a
professional engineer by the Board of Professional Engineers
and Land Surveyors for the State of Montana.                The District
Court also determined that             §   7-4-2801, MCA, is constitutional
under   the    1972 Montana            Constitution.               Accordingly,        the
District Court enjoined McClue from taking office, dismissed
his petition for writ of mandamus, ordered the office of
Gallatin     County       surveyor vacant,           and       awarded      costs      and
attorney fees to Gallatin County and Gary Pringle.
     McClue raises one issue for our review:                             whether the
District Court was correct in concluding that McClue, the
person duly elected as county surveyor of Gallatin County, is
prevented     from holding         the      office because             he   is not a
licensed professional engineer in Montana..
     McClue contends that           §      7-4-2801, MCA, which was enacted
by the Montana legislature as S 1, Ch. 50, Laws of Montana
(1919) and re-enacted as 5 4835, RCM                          (1921), 5 4835, RCM
(1935), and S 16-3301, RCM (1947), is unconstitutional under
the 1889 Montana Constitution, Art.                          IX,     11.     Gallatin
County,      however,        contends        that        5     7-4-2801,      MCA       is
constitutional        both     under        the    provisions          of   our     1889
Constitution as amended and the 1972 Montana Constitution.
To understand the parties' respective arguments, a history of
the pertinent constitutional and                    statutory provisions               is
necessary.
     Art.      IX,    5    11,    of       the    1889       Montana    Constitution
provided :
     Any person qualified to vote at general elections
     and for state officers in this state, shall be
     eligible to any office therein except as otherwise
     provided in this constitution, and subject to such
     additional qualifications as may be prescribed by
     the legislative assembly for city offices and
     offices hereafter created.
     The      office      of     county      surveyor         was    created      as    a
constitutional office in the 1889 Montana Constitution which
provided in Art.          XVI, 5 5 as follows:                      "There shall be
elected    in each county the       following officers     . . .   one
county    surveyor;.     . ."   In 1919, the Montana legislature
enacted 5 1, Ch. 50, Laws of Montana (1919), which was the
predecessor    to    5    7-4-2801, MCA.   The   statute    remained
unchanged in our codes until the legislature amended it in
1985.    Section 7-4-2801, MCA, clearly provides for additional
qualifications for the office of county surveyor that are not
provided for in the 1889 Constitution.
        In 1935, an opinion of the Montana Attorney General was
issued which found section 4835, RCM (1921), a predecessor to
5 7-4-2801, MCA, to be unconstitutional because it required
additional qualifications for the office of county surveyor
which were     not   required by    the 1889 Constitution.         The
opinion provides:
    Since the amendment of Section 10 of Article IX of
    the constitution in November, 1924, Section I1 of
    the same Article, so far as applicable here, is to
    the effect that any person qualified to vote at
    general elections and for state officers shall be
    eligible to any of the offices mentioned above
    except that of county superintendent of schools.
    Section 2 of Article IX of the constitution, as
    amended   in   November,   1932,  prescribes   the
    qualifications necessary to entitle a person to
    vote at general elections and for state officers,
    as follows: He must be of the age of twenty-one
    years or over; a citizen of the United States; a
    resident of the state for one year immediately
    preceding the election at which he offers to vote,
    and of the town, county or precinct for such time
    as the law might lay down.
    The    constitution    having     prescribed    the
    qualifications required of a county surveyor, the
    legislature was without power to supplement the
    constitutional pronouncement by such legislation as
    Section 4835, supra.
16 A.G. Op. 194 (1935).
     In addition, McClue cites the court to two other Montana
cases that stand for the proposition that statutes which
require additional qualification for an office which are not
required by the constitution are unconstitutional.         See State
ex rel. Palagi v. Regan (1942), 113 Mont. 343, 355, 126 P.2d
818, 825; State ex rel. Chenoweth v. Acton (1904), 31 Mont.
37, 43, 77 P. 299, 301-02.
        In 1937, at the next session of the Montana legislature
following the above-cited Attorney General's opinion, a bill
was passed which provided for a proposed amendment to Art.
XVI, 5 5 of the 1889 Montana Constitution.                Ch. 93, Laws of
Montana (1937).      This bill was approved by the legislature on
March    12, 1937, and was adopted at the November 8, 1938
general     election   and    became    effective      under     Governor s
Proclamation of December 2, 1938.            Following the amendment,
Art. XVI, S 5 provided in pertinent part as follows:
       There shall be elected in each county the following
       county    officers    who    shall    possess   the
       qualifications for suffrage prescribed by Section 2
       of Article IX of this Constitution - - other
                                            and such
       gualifications - may - prescribed by -
                      as     be                law:
        . . . - county
              one         surveyor;.    . ..     (Emphasis added.)
The clear intent of the constitutional amendment was to do
away    with   the constitutional infirmity discussed               in the
Attorney General's Opinion in 1935.
       Finally,   with    the     adoption     of   the     1972    Montana
Constitution, Art. XVI,       §   5 was replaced by Art. XI, S 3, of
the 1972 Montana Constitution, which provides:
       (2) One optional form of county government
       includes, but is not limited to, the election of
        ...   a surveyor,.    . ..
                               - terms, qualifications,
                               The
       duties, and compensation of those offices shall -
                                                       be
       provided     - (~mphasiF
                    law.          added. )
       Both parties agree that if the constitutionality of S
7-4-2801, MCA, is tested under the 1889 Montana Constitution
prior to the 1938 amendment thereto it is unconstitutional.
Both      parties,     however,      also      agree      that     if   the
constitutionality of      $   7-4-2801, MCA, is tested under the
1889 Montana Constitution as amended in 1938 or the 1972
Montana Constitution, the statute is constitutional.                Thus,
the question     is which       constitutional provision controls.
       Both   parties   agree    that the    constitutionality of       a
statute should be tested by the constitution which was in
force when the law was enacted.             State ex rel. Woodahl v.
Straub      (1974), 164 Mont.      141,   146, 520 P.2d         776, 779.
Gallatin County contends and the District Court agreed, that
the constitution in effect when 5 7-4-2801, MCA was enacted
was the 1972 Montana Constitution.            Gallatin County argues
that the re-enactment and adoption of 5 7-4-2801, MCA in the
1947    and   1979 recodification process by             the   legislature
served as separate enactments of the statute, thus requiring
that    5   16-3301, RCM    (1947) be      tested   against the      1889
Constitution as amended and that 5 7-4-2801, MCA be tested
against the 1972 Constitution.            Section 12-330, RCM (1947)
provided:
       The Revised Codes of Montana, 1-947                ...
                                                        are
       hereby, a.s to both form and substance, approved,
       legalized and. adopted as the laws of Montana now in
       force and effect and the same are hereby declared
       to constitute the laws of Montana now in force and
       effect  . . ..
Section 1-11-103, MCA, provides:
       (1) The Montana Code Annotated shall be enacted as
       a reenactment of the Revised Codes of Montana.,
       1947, and the supplements thereto.


       (3) The Montana Code Annotated shall be given
       effect as a continuation of the Revised Codes of
       Montana and not as a new enactment..         ..
                                               (Emphasis
       added. )
Gallatin County cites this Court to a number of cases that
stand for the proposition that each recodification of our
code should serve as a separate enactment or re-ena.ctment of
the statutes included therein.            See, Atlas Life Insurance
Company v. Rose       (Okla. 1946), 166 P.2d 1011; In Re Berg's
Estate (Neb. 1941), 296 N.W. 460.
       McClue contends that the constitution in effect when the
predecessor of 5 7-4-2801, MCA was enacted in 1919 was the
1889 Constitution and         that the     subsequent constitutional
changes in 1938 and 1972 have no effect.              McClue is correct
that a statute unconstitutional when it takes effect is not
resurrected by a subsequent constitutional change.              State ex
rel. Woodahl v. District Court (1973), 162 Mont.               283, 511
P.2d    318.    It is also true that the test of a statute's
constitutionality is to be made at the time it takes effect
and is to be made against the constitution as it exists at
the time the statute takes effect.          State ex rel. Woodahl v.
Straub, 164 Mont. at 146, 520 P.2d at 779.
       The recodification of our code is merely a ministerial
and     administrative       function     performed     by    the     code
commissioner under the authority of the legislature.                For us
to     hold    that   the   legislature    intended    to    remove    the
constitutional infirmity in this statute pursuant to the 1947
and 1979 recodifications would be to give a meaning to this
process which was never intended by the legislature.                  The
reality of this case is that the predecessor of 5 7-4-2801,
MCA was enacted in 1919 and was unconstitutional under Art.
IX, 5     11 of our constitution as it then existed.                   The
District Court denied McClue his right to hold office based
upon a statute that was unconstitutional in its inception,
and that had not been properly re-enacted under the 1972
Constitution at the time McClue was elected.
       We reverse and remand this case to the District Court
with instructions to issue McClue's writ of mandamus and to
award him costs and reasonable attorney fees.
        We reverse and remand.

                                 Justice



We Concur:
                       /




            Justices

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