                                     No.   12363

        'iN THE SUPREME COURT OF THE STATE OF MONTANA




THE STATE OF YONTANA e x r e l .            ,
CARL H. HANMOND,

                               Petitioner,



UI~PiLIlUS G. HAGER and MAGELIN HAGER,
and THE DISTRICT COURT O THE NINTH JUDICIAL
                          F
DISTRICT OF THE STATE OF MONTANA, I N AND FOR
THE COUNTY OF TETON and THE HON. R. D. McPHILLIPS,
JUDGE THEREOF,

                               Defendants.




C o u n s e l of Record:

     For Appellant :

             Hoyt, Bottomly and G a b r i e l , G r e a t F a l l s , Montana.
             J o h n C. Hoyt a r g u e d , G r e a t F a l l s , Montana.

     For R e s p o n d e n t s :

             J a r d i n e , S t e p h e n s o n , B l e w e t t and Weaver, G r e a t F a l l s
               Montana.
             L. M o r r i s Ormseth a r g u e d , G r e a t F a l l s , Montana.



                                                   Submitted:         October 16, 1972

                                                        Decided :
                                                                      NOV 14 rsn
                                                                      -- -


Filed :         1911-
          1OV 1.4
M r 4 Chief J u s t i c e Harrison d e l i v e r e d t h e Opinion of the Court,


       This i s an o r i g i n a l proceeding involving t h e c i v i l a c t i o n
of E a r l H. Hammond,          plaintiff,^. Ramaldus G. Hager and Magelin
Hager, defendants, f i l e d i n t h e d i s t r i c t c o u r t of Teton County.
Here p e t i t i o n e r , E a r l H 4 Hammond, seeks an a p p r o p r i a t e w r i t
d i r e c t e d t o defendants Hager, t h e d i s t r i c t c o u r t , and t h e judge
thereof t o c o r r e c t an a l l e g e d erroneous r u l i n g by t h e d i s t r i c t
court.
       It appears from t h e complaint i n t h e d i s t r i c t c o u r t a c t i o n
t h a t Hammond was employed by t h e Hagers on t h e i r ranch a s a
ranchhand, and h i s d u t i e s included i r r i g a t i o n ; t h a t on t h e day of
h i s i n j u r y h e was supplied with a Honda motorcycle f o r t r a n s -
p o r t a t i o n i n s t e a d t h e u s u a l c a r o r pickup.   H a l l e g e s he was
                                                                     e
u n f a m i l i a r with t h e operation of t h e motorcycle and i n such
operation he was thrown from t h e Honda and sustained i n j u r i e s
f o r which he seeks damages,
       The Hagers by answer, plead t h e defenses of assumption of
r i s k and c o n t r i b u t o r y negligence.       T h e r e a f t e r , Hammond amended
h i s complaint by adding a new count s e t t i n g f o r t h t h a t Hammond
was engaged i n a hazardous occupation while employed by t h e
Hagers who d i d not c a r r y i n d u s t r i a l a c c i d e n t insurance o r e l e c t
t o come under t h e workmen's Compensation Act.                       T h e r e a f t e r Hammond
moved t h e d i s t r i c t c o u r t t o dismiss and s t r i k e from t h e Hagers'
answer t h e i r defenses t h a t p e t i t i o n e r assumed the r i s k and was
g u i l t y of negligence (not w i l l f u l ) which c o n t r i b u t e d t o h i s
injuries.
       A s a b a s i s f o r t h i s motion Hammond contended t h e s t a t u t e s
of Montana r e q u i r e t h a t a l l persons engaged i n hazardous occupa-
t i o n s must c a r r y i n d u s t r i a l accident insurance, and f a i l u r e t o
do so excludes a s defenses i n a personal i n j u r y a c t i o n t h e n e g l i -
gence of t h e employee and h i s assumption of r i s k ; b u t admittedly
those s t a t u t e s exclude employers engaged i n farming and s t o c k
raising.       Harnmond contends t h a t such exclusion i s n o t a l e g i t i m a t e
classification; that it is arbitrary and unreasonable; and
in violation of the 14th Amendment to the United States Consti-
tution.
     The district court overruled the motion to dismiss and strike
the common law defenses. Hammond, then alleging that a remedy
by appeal after final judgment would be wholly inadequate and
the denial of a speedy remedy would be tantamount to a denial
of justice, applied to this Court for an appropriate writ to
overturn the district court's order.   Counsel was heard ex parte
and an alternative order to show cause was issued,
     Defendants filed their answer and return, They alleged
that even if petitioner's constitutional contentions were correct,
we could not include farming within the Workmen's Compensation
Act when the legislature excluded it and could only declare the
entire act invalid and, further, they assert that the legislative
classification is valid.
     On the return day, counsel for all parties appeared by
brief and in oral argument.
     Since this proceeding involves provisions of ~ontana's
Workmen's Compensation Act, we quote the statutes of that Act
involved :
     Section 92-201, R.C.M.   1947:
     "Defenses excluded in personal injury action --negligence
     of employee---fellow servant---assumption of risk. In an
     action to recover damages for personal injuries sustained
     by an employee in the course of his employment, or for
     death resulting from personal injuries so sustained, it
     shall not be a defense:
          "1 That the employee was negligent, unless
           ()
     such negligence was willful;
          "(2)  That the injury was caused by the negli-
     gence of a fellow employee;
           ( ) That the employee had assumed the risks
          "3
     inherent in, incident to, or arising out of his
     employment, or arising from the failure of the em-
     ployer to provide and maintain a reasonably safe
     place to work, or reasonably safe tools or appliances. 11
     Section 92-,602,R.C.M. 1947:
     II
      Defenses not excluded in personal injury action
     against em~loverin nonhazardous occu~ationand
     certain other occupations. The provisions of
     section 92-201 shall not a ~ ~ l vactions to re-
                                    to
     cover damages for personal^in~uries  sustained by
     household and domestic servants or those employed
     in farming, dairying, agricultural, viticultural,
     and horticultural, stock or poultry raising, or
     engaged in the operation and-maintenance of- steam
     railroads conducting interstate commerc:, or persons
     whose employment is of a casual nature.
     Section 92-301, R,C.M. 1947:
     "Act applies to all inherently hazardous occupa-
     tions as enumerated. This act is intended to apply
     to all inherently hazardous works and occupations
     within this state, and it is the intention to embrace
     all thereof in the four following sections, and the
     works and occupations enumerated in said sections
     are hereby declared to be hazardous, and any employer
     having any workmen engaged in any of the hazardous
     works or occupations herein listed shall be con-
     sidered as an employer engaged in hazardous works
     and occupations as to all his employees.II
     Sections 92-302, 92-303, 92-304 and 92-305 enumerate the
occupations which are expressly declared to be hazardous.
     Section 92-306, R.C,M, 1947:
     11
     Hazardous occupations not enumerated or hereafter
              It there be or arise any hazardous occupation
    -te
     ohr          than hereinbefore enumerated, it shall
    come under this act and its terms, conditions and pro-
    visions as fully and completely as if hereinbefore
    enumerated. The enumeration of certain works and occupa-
    tions as hazardous shall not exclude from the provisions
    of this act any other occupation actually hazardous,
    whether enumerated or not. All other works and occupa-
    tions hazardous in their nature shall be included within
    the terms of this act. No employment or occupation shall
    be excluded from the benefits of this act as a hazardous
    occupation because it is not of the same class as other
    occupations described as hazardous in this statute."
     Petitioner states that the issue here is whether or not the
exemption of employees of those engaged in farming, agriculture
or stock raising is an arbitrary and unreasonable one.   Admitted
by petitioner is the fact that the only authority is to the effect
that the exclusion of farm laborers from the Workmen's Compensation
Act coverage is not an arbitrary classification, The United
States Supreme Court considered this exclusion in Middleton v.
Texas Power & Light Co., 249 UPS. 152, 63 L.Ed. 527, 39 S.Ct,
227, In its opinion, the court stated that in excluding farm
laborers the legislature might consider that the risks inherent
in those occupations were specially patent, simple, and familiar.
Middleton cited and relied upon the authority of New York Central
Ry, Co. v. White, 243 U.S. 188, 61 L.Ed. 667, 677,037,S;Ce.247,
which involved an employee of a railroad, and in its opinion the
Court there stated:
         h his objection under the 'equal protection' clause is
        not pressed. The only apparent basis for it is in the
        exclusion of farm laborers and domestic servants from
        the scheme. But, manifestly, this cannot be judicially
        declared to be an arbitrary classification, since it
        reasonably may be considered patent, simple and familiar.It
        (Emphasis supplied)
         Petitioner contends that White never considered the issues
here presented head-on, but only obliquely, and used the terms
It
     patent, simple and familiar" as the basis for justifying the
exclusion of farm and ranch employees from coverage, and then
asserts that this Court should decide whether or not farm and
ranch work in Montana today is "patent, simple and familiar" and
thus distinguishable from other industrial employments, and
secondly, is farm and ranch work in fact hazardous?
        However before we enter into any discussion of these con-
tentions, we note that petitioner is aware of the rule, appro-
priate here, and stated in Madden v. Kentucky, 309 U.S. 83, 84


        "Since the members of a legislature necessarily
        enjoy a familiarity with local conditions which
        this court cannot have, the presumption of consti-
        tutionality can be overcome only by the most explicit
        demonstration that a classification is a hostile and
        oppressive discrimination against particular persons
        and classes. The burden is on the one attacking the
        legislative arrangement to ne ative every conceivable
        basis which might support it.6
         It is well to bear in mind what this Court stated back in
1919 in Shea v. North-Butte Min. Co., 55 Mont. 522, 528, 179 P.
499, with reference to the then new ~orkmen's Compensation Act.
Mr. Chief Justice Brantly, speaking for a unanimous court,
stated :
"The causes, from a historical point of view,
impelling the enactment of workmen's Compensation
Laws, and the object to be served by them, have
heretofore been stated somewhat at length by this
court. (Cunningham v. Northwestern Improvement Co.,
44 Mont. 180, 119 Pac. 554; Lewis & Clark County
v. Industrial Accident Board, 52 Mont. 6, L.R.A.
1916D, 628, 155 Pac. 268.) It is not necessary
to restate them. It is sufficient for present purposes
to call to mind that the object sought was to substi-
tute for the imperfect and economically wasteful
common-law system by private action by the injured
employee for damages for negligent fault on the part
of the employer, which, while attended with great
delay and waste, compensated those employees only
who were able to establish the proximate connection
between the fault and the injury, a system by which
every employee in a hazardous industry might receive
compensation for any injury suffered by him arising
out of and during the course of the employment, whether
the employer should be at fault or not, except only
when the injury should be caused by the willful act
of the employee. In other words, the theory of such
legislation is that loss occasioned by reason of in-
jury to the employee shall not be borne by the em-
ployee alone--as it was under the common-law system--
but directly by the industry itself and indirectly
by the public, just as is the deterioration of the
buildings, machinery and other appliances necessary
to enable the employer to carry on the particular
industry.
"To every thinking person the object sought commends
itself not only as wise from an economic point of
view, but also as eminently just and humane. Such
legislation, in whatever form it may provide compen-
sation, has been formulated after the most patient
study and investigation by our most eminent men in
professional and industrial walks of life, in order
to avoid such obstructions or limitations as might
be encountered under our written constitutions. A
persistent enlightened public opinion has brought
about the enactment of such laws in a great number
of the states of the Union. Some of them are elective,
while others are compulsory; and though the validity
of many--perhaps all--of them has been challenged onalmost
every possible constitutional ground, they have generally
been upheld. Our own statute is elective. While it has
been criticised on the ground that the schedule of rates
of compensation provided for by it is not sufficiently
liberal and also on the ground that it makes an unwise
and unjust discrini.nation against the dependents of
aliens, yet that i : operates more justly and more
                  t
satisfactorily than the old system is demonstrated by
the fact that as soon as it became operative, on July 1,
1915, the great body of employers as well as of employees
in the various industries in the state accepted its
provisions and have since been subject to them, as
administered by the Industrial Accident Board created
by the Act for-that purpose. Under these circumstances,
the rule that an Act of the legislature will not be
declared invalid because it is repugnant to some pro-
vision of the Constitution unless its invalidity is made
to appear beyond a reasonable doubt, applies with peculiar
force." (Emphasis supplied)
     It now becomes incumbent upon petitioner in attacking
these provisions of the Workmen's Compensation Act to 11negative
every conceivable basis which might support it." as the United
States Supreme Court stated, or to show the Act's invalidity
beyond a reasonable d o h t , as this Court stated.
     This Court has repeatedly upheld the right of the Montana
Legislature to create classifications for the purpose of legis-
lative regulation. In doing so, we have always accorded a pre-
sumption of constitutionality where legislative classifications
have been questioned and have thus presumed that such classifi-
cations are reasonable unless the party challenging the statute
makes a clear affirmative showing to the contrary.
     These principles were recently restated in Calvert v. City
of Great Falls, 154 Mont. 213, 218, 462 P.2d 182, wherein we
rejected a claim that a compulsory annexation statute violated
the Fourteenth Amendment or Art, V, Sec. 26, of the Montana
Constitution because it contained exemptions for industrial
enterprises, golf courses, aircraft landing fields, and other
specific enterprises.   We stated:
     "The appellants' attack here on the constitutionality
     of the act as being 'class legislation' must overcome
     the presumption of constitutionality. In this state
     the presumption of constitutionality becomes specific
     when the claim of 'class legislation' is raised for
     much of our legislation in the field of property law
     imposes distinctions and classifications. These distinc-
     tions and classifications have been upheld whenever
     found to be reasonable and to operate equally upon every
     person or thing in a given class, State ex rel. Redman
     v. Meyers, 65 Mont. 124, 128, 210 P. 1064; State ex rel.
     Morgan v. White (Ret,Sys.), 136 Mont. 470, 348 P.2d 991.
     ***
     "'What a court may think as to the wisdom or expediency
     of the legislation is beside the question and does not go
     to the constitutionality of the statute. We must assume
     that the Legislature was in a position and had the power
     to pass upon the wisdom of the enactment, and in the
     absence of an affirmative showing that there was no valid
     reason behind the classification, we are powerless to
     disturb it. "'
     There are many other cases decided by this Court, which
express the same principles.    While the United States Supreme
Court used the language I I specially patent, simple and familiar"
in describing the risks borne in agricultural employment, it does
not follow that our legislature based its decisions upon such
considerations.   Our legislature might have concluded to exclude
farming operations because they were hazardous enough. that the
cost of coverage to the farmer would be an unnecessary and un-
reasonable burden, particularly since the legislature may not have
believed that conditions of farm employment generally were similar
to those of the industries the Act did cover.
     Speculating further, one could as well conclude that the
legislature excluded coverage of farmers on the basis, for example,
that a great majority of Montana farmers employ too few people
to justify the cost and administrative expense required to comply
with the Act; that most farm employees are too seasonal or casual
to require coverage; or, that ~ontana's farmers should not be
put at a competitive disadvantage since most other states also
exclude agriculture.    Petitioner is dealing with only one factor,
patency of the risk, but his burden is to negative every con-
                    pght
ceivable basis which support the legislative action.
     This burden he has not borne and we must assume, as we
stated in Calvert, that the legislature was in a position and
had the power to pass upon the wisdom of the enactment.
     In addition, in Montana we have a long line of cases holding
that constitutional questions will not be determined unless their
determination is essential to the disposition of the case.    See
Application of Baker Sales Barn,Inc., 140 Mont. 1, 367 P.2d 775;
Yellowstone Bank v. Board of Equalization, 137 Mont.198, 351 P.2d
904, and cases cited therein.
     The relief sought by p
is ordered dismissed.
We Concur:




Mr, Justice Haswell and Mr. Justice Daly specially concurring:

     We concur in the result reached by the majority, but on
procedural rather than constitutional grounds.    In our opinion,
no constitutional issue is properly before the Court in this
proceeding,
     In our view, this Court should exercise judicial restraint
in reaching and deciding the constitutionality of legislative
acts, particularly where, as here, no brief or oral argument has
been presented by any public official or agency but only by
private individuals.   Under such circumstances where a case can
be decided on nonconstitutional grounds, this Court should do so.
     The general principle of declining unnecessary decisions on
the constitutionality of legislative enactments and the reasons
therefor is concisely summarized in 16 Am.Jur.2d, Constitutional
Law, 5 111, p. 298:
     If1t has been stated that the invariable practice of
     the courts is never to consider the constitutionality
     of state legislation unless it is imperatively re-
     quired,
     It
      The principle of avoiding constitutional questions
     has been described as one which was conceived out of
     considerationsof sound judicial administration, and
     which has become a traditional policy of American
     courts, Moreover it is in accord with the principle
     of separation of powers of government. l1
     A long line of Montana decisions extending back to the turn
of the century supports this principle.   State v. King, 28 Mont.
268, 72 P. 6 5 7 ; Sanden v. N.P,Ry. Co., 39 Mont. 209, 102 P. 145;
Potter v, Furnish, 46 Mont, 391, 128 P. 542; State v. Rocky Mtn.
Elevator Co., 52 Mont. 487, 158 P 818; State ex rel, Toomey v.
                                 .
State Bd. of Examiners, 74 Mont. 1, 238 P 316; Missoula Trust
                                         .
&   Savings Bank v. N.P.Ry. Co,, 76 Mont. 201, 245 P. 949; In re
~ank'sEstate, 80 Mont. 159, 260 P. 128; Durocher v. Myers, 84
Mont. 225, 274 P, 1062; Yale Oil Corp. v. Plentywood ~armers'
Oil Co., 98 Mont. 582, 41 P.2d 10; In re Clark's Estate, 105 Mont,
401, 74 P.2d 401, 114 A.L.R. 496; Montana State Board of Examiners
in Photography v. Keller, 120 Mont, 364, 185 P 2d 503; Dickey v,
                                              .
Bd, of ~om'rs,121 Mont. 223, 191 P,2d 315; Monarch Mining Co.
v. State Highway Comm., 128 Mont. 65, 270 P.2d 738; State ex rel,
Burns v. Lacklen, 129 Mont. 243, 284 P.2d 998; Yellowstone Bank v.
State Board of Equalization, 137 Mont, 198, 351 P.2d 904; Appli-
cation of Baker Sales Barn, 140 Mont. 1, 367 P,2d 775; State ex
rel. Konen v, City of Butte, 144 Mont. 95, 394 P,2d 753,
      The majority note this principle but ignore it, sweeping
aside the foregoing precedent to reach the constitutional issue.
In our view, the instant case can be decided on procedural grounds.
Here, the district court denied petitioner's motion to dismiss
and to strike two common-law defenses from defendants' answer,
'i'i~is
      denial is not an appealable order under Rule 1, M.R.App.
Civ.P., although it is reviewable on appeal from a final judgment
un.derRule 2, M.R.App.Civ.P.   Any review of this interlocutory
order at this time, whether by appeal or by extraordinary writ,
is premature and unwarranted, petitioner's rights have not
been finally concluded by the order complained of, and petitioner
may ultimately prevail regardless of the district court's order
or the constitutionality of the statute. If judgment is eventually
rendered against him, his remedy by appeal is plain, speedy, and
adequate precluding any premature review at this time by extra-
ordinary writ involving constitutional issues.
      For these reasons we concur in the result, but not with the
grounds, of the majority opinion.




                                       ssoclate Justices,
