No. 81-63
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
GARY LEE,
Petitioner and Appellant,
VS.
STATE OF MONTANA,
Respondent and Respondent.
Appeal from: District Court of the Eighth Judicial ~istrict,
In and for the County of Cascade
Honorable Joel G. Roth, Judge presiding.
Counsel of Record:
For Appellant:
Cameron Ferguson argued, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Sarah Power argued, Law Student, Office of Attorney
General, Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls, Montana
Submitted: September 14, 1981
Decided: October 22, 1981
,-
Filed : [ICT 2 2 1
s
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Plaintiff Gary Lee filed in the District Court, Eighth
Judicial District, Cascade County, his complaint seeking
declaratory judgment that section 6-8-304, MCA, is unconstitutional.
The District Court held the statute to be constitutional,
and entered judgment against Lee. He appeals from the District
Court judgment, We reverse the District Court.
The full text of section 61-8-304, MCA, follows:
"Declaration - speed limits--exception - -
of to the
basic rule. The attorney general shall declare
by proclamation filed with the secretary of
state a speed limit for all motor vehicles on all
public streets and highways in the state whenever
the establishment of such a speed limit by the
state is required by federal law as a condition
to the state's continuing eligibility to receive
funds authorized by the Federal Aid Highway Act
of 1973 and all acts amendatory thereto or any
other federal statute. The speed limit may not
be less than that required by federal law, and
the attorney general shall by further proclamation
change the speed limit adopted pursuant to this
section to comply with federal law. Any pro-
clamation issued pursuant to this section becomes
effective at midnight of the day upon which
it is filed with the secretary of state. A speed
limit imposed pursuant to this section is an
exception to the requirements of 61-8-303 and
61-8-312, and a speed in excess of the speed limit
established pursuant to this section is unlawful
notwithstanding any provision of 61-8-303 and
61-8-312."
The foregoing statute was enacted by the legislature
as a part of Ch. 60, Laws of Montana (1974), where it was
denominated section 32-2144.1, R.C.M. 1947. The statute
became section 61-8-304, MCA (1978). In 1979, the legislature
amended the section slightly in Ch. 421, Laws of Montana (1979),
The statute was enacted by the legislature in 1974, in
response to the Emergency Highway Energy Conservation Act
(Emergency Act) (Pub.L. No. 93-239). In effect, this federal
act provided that no federal highway funds should go to any
state failing to enact a 55 mile per hour maximum speed
limit on its highways.
In section 2(e) of the Emergency Act, Congress provided
that:
"This section shall cease to be in effect (1) on
and after the date on which the President declares
that there is not a fuel shortage requiring the
application of this Act, or (2) on and after June
30, 1975, whichever date first occurs."
The provisions of Ch. 60, Laws of Montana (1974),
granting the attorney general the power to proclaim a speed
limit, became effective March 2, 1974. On that date, the
Montana attorney general issued a proclamation "that the
maximum speed limit day and night, for all motor vehicles on
all public streets and highways in the state of Montana is
fifty-five (55) miles per hour, effective midnight, March
Before the expiration of the Emergency Act, Congress
adopted and the President of the United States approved on
January 4, 1975, the "Federal-Aid Highway Amendments of
1974," 23 U.S.C. §§ 101, et seq, (Pub.L. No. 93-643) . This
new law provided that a state must have a 55 mile per hour
maximum speed limit in order to receive federal funds. The
same new law, in section 114(c), 23 U.S.C. § 154, repealed
section 2 of the Emergency Act.
There have been subsequent changes in the federal laws
respecting the entitlement of states to federal funds for
state highway purposes. The most recent change is Pub.L. No.
97-35, enacted in August 1981. It is enough to say here that as
of the time of this opinion, there is still in effect a
federal law which conditions the rights of states to receive
federal funds for highway purposes upon the adoption of a
55 mile pcr hour maximum speed limit law.
Since March 2, 1974, no proclamation respecting a
maximum speed limit has been issued by any Montana attorney
general. The parties have argued pro and con as to the
effect of that lack of further proclamation in the light of
the repeal of the original speed limit provisions in the
Emergency Act. It makes no difference to our decision
whether the proclamation of March 2, 1974, became void after
the repeal of the original federal law, or whether the
attorney general should have issued a new proclamation. We
view the provisions of section 61-8-304, MCA, as unconstitutional
as originally enacted, and as now provided. We concern
ourselves only with two facets of the history of the legislation:
(1) The legislature, having met four times since the enactment
of the 1974 legislature, has done nothing about a statewide
speed limit except to re-enact section 61-8-304, P C A , in
1979; and, (2) a statewide maximum speed limit of 55 miles
per hour is now being enforced in this state under and by
virtue of the attorney general's proclamation of March 2,
1974.
Lee argues on appeal that section 61-8-304, MCA, is
unconstitutional as an impermissible delegation of the
legislative power of the state, The state contends that: (1)
Lee has no standing to challenge the authority of the attorney
general under section 61-8-304, MCA, and therefore a justiciable
controversy is not presented here; (2) the act is valid; (3)
the statute may be saved in any event, by severing therefrom
the objectionable portions; and, (4) section 61-8-304, MCA,
incorporates an existing law and is therefore valid.
We look first to whether Gary Lee has standing to bring
this action. In his complaint, he alleges that he is a
resident of Fort Shaw, Cascade County, Montana; that he
frequently drives a motor vehicle on the highways of this
state, particularly Montana State Highway No. 200 and Inter-
state Highway No. 15 between Fort Shaw and Great Falls,
Montana; that the attorney general has issued the proclamation
to which we have adverted; that except for such proclamation,
he would be entitled to drive a motor vehicle under the
provisions of section 61-8-303, MCA, (the basic speed rule)
in excess of 55 miles per hour as he was accustomed to
doing prior to the issuance of the proclamation.
The state filed a motion to dismiss the complaint,
raising the standing of the plaintiff to sue in the action.
The District Court denied this motion, and did not treat
the subject of plaintiff's standing in its subsequent orders
or judgments. The state did not cross-appeal, but we examine
the issue of standing in any event under Rule 14, M.R.App.Civ.P.
Lee's complaint is for declaratory judgment. It is
brought under the Uniform Declaratory Judgment Act. Section
27-8-101, et seq., MCA. That act provides, in section 27-8-
202, MCA:
"Any person ... whose rights, status, or
other legal relations are affected by a
statute . .. may have determined any
question of construction or validity arising
under the ... statute ... and obtain
a declaration of rights, status, or other
legal relatioris thereunder."
The stated purpose of the Uniform Declaratory Judgment
Act is remedial. Section 27-8-102, MCA. Its purpose is to
settle and to afford relief from uncertainty and insecurity
as to rights, status, and other legal relations; and, it is
to be liberally construed and administered. Section 27-8-
102, MCA.
The test of whether a justiciable controversy exists is
set forth in Matter of Secret Grand Jury Inquiry (1976), 170
Mont. 354, 357, 553 P.2d 987, 990. There this Court said:
"First, a justiciable controversy requires
that parties have existing and genuine, as
distinguished from theoretical, rights or
interest. Second, the controversy must be
one upon which the judgment of the court may
effectively operate, as distinguished from a
debate or argument invoking a purely political,
administrative, philosophical or academic
conclusion. Third, must be a controversy
the judicial determination of which will have
the effect of a final judgment in law or decree
in equity upon the rights, status or legal
relationships of one or more of the real parties
in interest, or lacking these qualities be of
such overriding public moment as to constitute the
legal equivalent of all of them."
It is readily seen that Lee's complaint and attack on
the constitutionality of the statute fit all three of the
tests. Those tests are supported by a substantial number of
cases decided in Montana, all set forth in Secret Grand Jury
Inquiry, supra.
In arguing that Lee has no standing to sue in this
case, the state relies chiefly upon Chovanak v. Matthews
(1948), 120 Mont. 520, 188 P.2d 582. In that case Chovanak
attacked a 1945 Montana statute providing for the licensing
of slot machines owned and operated by religious, fraternal,
charitable or nonprofit organizations. He sued as a resident,
citizen and elector. This Court pointed out that he was
suing against gambling in general, and said that it appeared
from his complaint that slot machines, licensed or unlicensed,
were utterly anathema to him. This Court found no controversy
between him and the defendants in that case.
On the other hand, Gary Lee is directly affected by the
operation of the statute he attacks in this case. His right
or privilege to drive a motor vehicle by the basic rule of
safety under section 61-8-303, MCA has been adversely
limited by the enforcement or threatened enforcement of
section 61-8-304, MCA. He wants to drive his motor vehicle
as fast as the basic rule allows. The statute he attacks
operates against him and all drivers in Montana directly.
All members of the driving public have an affected interest
under the statute attacked, but that does not mean that
no member of that driving public can question the constitutional
validity of the statute without being arrested for a violation.
The acts of the legislature which directly concern large
segments of the public, or all the public, are not thereby
insulated from judicial attack. Otherwise, the Uniform
Declaratory Judgment Act would become largely useless where
a plaintiff proposed to test the constitutional validity of
a statute directly affecting him. Gary Lee, an automobile
driver on Montana highways, has a personal, direct interest
for which he can claim judicial protection when one Montana
statute grants him a right or privilege to drive under basic
safety requirements and another statute permits that right
or privilege to be delimited without action of the legislature.
Were we to hold otherwise, we would deprive Lee of judicial
relief, and let stand the conflict that now exists between
two enactments of the legislature.
We should also note other conflicts with section 61-8-
304 in the statutes. The Department of Highways is given
authority to set speed limits in section 61-8-309, MCA, when
it finds the basic rule and its speed limits are greater or
less than would be reasonable or safe on portions of highways.
Section 61-8-304, MCA, is an exception to the power of the
Department of Highways under section 61-8-309, MCA, as to
speeds above that proclaimed in the attorney general's
proclamation.
Section 61-8-310, MCA, gives local authorities power to
alter the basic rule and speeds of section 61-8-303, MCA,
when traffic and engineering investigations show urban speed
limits to be greater or less than reasonable. Section 61-8-
304, MCA, conflicts with section 61-8-310, MCA, as to
speeds above the attorney general's proclamation.
Section 61-8-312, MCA, authorizes trucks and truck-
tractors to be driven at speeds up to 65 miles per hour on
interstate and divided lane highways and up to 60 miles per
hour on sections of primary and secondary highway, except at
nighttime.Section 61-8-304 conflicts with section 61-8-312,
MCA, as to speeds above the maximum set by the attorney
general's proclamation.
Since 1974, no attempt has been made by the legislature
to clarify these conflicts. The other statutes were enacted
after due legislative consideration. Yet the provisions
of these other statutes, legislatively enacted, may be and
are being set aside without further legislative action by the
proclamation of the attorney general governed by changes in
the federal law alone. The attorney general need not consider
safety, conservation, assured clear distance of vision, type
and structure of the highway, or any other factor that would
lead to a reasoned legislative or administrative decision.
He is mandated to act as the federal law requires with no
discretion or fact-finding. His proclamation is as immutably
attached to a federal action as is a saddle to a horse.
Thus we come to the essential invalidity of section 61-
8-304, MCA. The authority conferred upon the attorney
general in that statute is clearly an impermissible delegation
of legislative authority. 1972 Mont. Const., Art. 111, 5 1;
Matter of Auth. to Conduct Sav. & Loan Act. Etc. (1979),
Mont . -, 597 P.2d 84, 36 St.Rep. 1207; Bacus v. Lake
County (1960), 138 Mont. 69, 354 P.2d 1056.
Lee concedes that the legislature has the authority to
adopt existing federal statutes or regulations in its enactments.
We agree. See Wallace v. Commissioner of Taxation (1971),
289 Minn. 220, 184 N.W.2d 588 (the statute adopted the federal
definition of adjusted gross income for state income tax
purposes) .
The constitutional infirmity of section 61-8-304, MCA,
arises out of its mandatory directions to the attorney
general to proclaim a speed limit "not . . . less than that
required by federal law," "whenever the establishment of
such a speed limit by the state is required by federal law"
to receive federal highway funds. Under the 1974 act, and
under the act as it now exists, the attorney general is also
required to terminate such proclaimed speed limit "whenever
such a speed is no longer required by federal law." Section
61-8-305(2), MCA. A more blatant handover of the sovereign
power of this state to the federal jurisdiction is beyond
our ken.
Almost without exception, the cases which recognize the
right of a legislature to adopt as a part of its enactments
existing federal laws and regulations also except from that
right any adoption of changes in the federal laws or regulations
to occur in the future. Wallace v. Commissioner of Taxation,
supra; People v. DeSilva (1971), 32 Mich.App. 707, 189
N.W.2d 362 (statute upheld on ground of severability); Cheney
v. St. Louis Southwestern Railway Co. (1965), 239 Ark. 870,
394 S.W.2d 731; Idaho Savings & Loan Association v. Roden (1960),
82 Id. 128, 350 P.2d 225; Seale v. McKennon (1959), 215 Or.
562, 336 P.2d 340; Dawson v. Hamilton (Ky. 1958), 314 S.W.2d
532; State v. Urguharet (1957), 50 Wash. 191, 310 P.2d 261;
Brock v. Superior Court (1937), 9 Cal.2d 291, 71 P.2d 209,
among others.
Three states have upheld legislation similar to Montana's
and denied constitutional challenges to statutes incorporating
federal speed limits. Masquelette v. State (Tex.Crim. 1979),
579 S.W.2d 478; State v. Dumler (1977), 221 Kan. 386, 559
P.2d 798; State v. Padley (1976), 195 Neb. 358, 237 N.W.2d
883. All three can be distinguished from this case by the
terms of the Montana statute. In the other three cases,
either the legislature pegged the speed limit, or the power
granted to a state official or body to adopt speed limits
was couched in permissive instead of mandatory terms. No
state that we can find has approved a delegation of sovereign
power involved here for mandatory action in the future,
based upon the federal law.
The state further argues that in any event, if we were
to determine that the ability of the attorney general in the
future to change the maximum speed limits is unconstitutional,
nonetheless, the statute can be saved by declaring that
portion severable so as to preserve the constitutional
validity of the rest of the act. However, there is no
severability clause either in Ch. 60, Laws of Montana (1974),
or in Ch. 421, Laws of Montana (1979), 5 66, where this
statute was enacted and re-enacted. Moreover, the power of
the court to sever an unconstitutional portion cannot be
effectively exercised in this case because the attorney general's
proclamation must issue "whenever" the federal law changes,
and must terminate whenever the federal requirement ceases.
There is no comfort for the state therefore in severability.
We want to state clearly that had the legislature
itself established the speed limit originally or at any
subsequent session, we should then have found such enactment
constitutional, even though it may have been in response to
the federal requirements. Moreover, we see no constitutional
infirmity, if an emergency of the sort presented here arose,
in granting such proclamation power to a state official, if
it were only for the interim between legislative sessions.
The evil we find in the present legislation is the permanent
delegation of the legislative sovereign power.
We consider now the effect of our determination
that this legislation is invalid. We invite chaos to our
highway system, and grave damage to the economy of our
state, if because of this decision the federal funds were to
be shut off. The maximum speed limit of 55 miles per hour
is in harmony with the national goal of conservation of
gasoline and oil, and with improved safety. It is imperative
for the best interests of the state that the maximum speed
limit be continued until the legislature has had a chance to
act, and that law enforcement officers continue the enforcement
thereof until valid legislation is enacted.
We have the power as an appellate court to order the
effect of our decision to be retrospective or prospective,
and in effect, to postpone the effective date of our decision.
Such action is in order here.
Accordingly, the decision of the District Court that
section 61-8-304, MCA, as now constituted is a valid constitutional
act is reversed. We declare that statute to be unconstitutional.
This opinion shall have the force and effect of a declaratory
judgment to that effect in favor of the plaintiff, Gary Lee.
We postpone the effective date of this decision and judgment
to October 1, 1983, or to such earlier date as the legislature
may enact and the governor approve maximum speed limit
legislation comporting with the federal requirements and
complying with our state constitution. Until such date,
violations of the maximum speed limit as proclaimed by the
attorney general on March 2, 1974, shall continue to constitute
offenses pursuant to section 61-8-718 and section 61-11-103,
MCA . We retain jurisdiction of this cause until the further
order of this Court. Costs to the plaintiff.
Justice
We Concur: