(dissenting) :
sitting in place of MR. JUSTICE DALY.I dissent.
The train of reasoning employed by the majority in this-case speeds past the rule of the Porter decision and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; but when it reaches the constitutional provision Article Y, Sec. 31, it comes to a full stop on the siding.
There is only one question to answer. It is: may the plaintiffs-respondents as elected public officers of the State of Montana receive the salary (which is an increase) provided by the formula as set out in the statute here involved?
The majority knows that our constitution, or any of its pro*159visions, enunciates only neutral principles. These principles take color and life and meaning only when applied to the facts ■of a particular case.
The majority in turgid prose states, “The prohibition in Art. "V, § 31, is absolute. * * ®” “* * * the admonition •cannot be more clear.” But Judge Holloway in State ex rel. ■Jackson v. Porter, 57 Mont. 343, 188 P. 375 did not pursue the literalness of the provision in question when he said:
“If the lawmaking power had the power to interfere ad libitum with the compensation of public officers, it could coerce •action favorable to its own views by the promise of increased salary or the threat of violent reduction. * * * The purpose is to secure, as far as possible, the independence of each co-ordinate branch of government, and to that end relieve the lawmaking branch from the importunities of officeholders who might seek increased compensation, not for the office, hut for themselves, and what was of infinitely greater consequence, remove from the lawmakers the temptation to control the other branches of government by promises of reward in the form of increased compensation or threats of punishment of way of reduced salaries * * *; ” and so that statement must be the binding ratio decidendi of the constitutional provision now in •question; it is the rule that should be applied to Sec. 25-605 R.C.M.1947, as amended.
I respectfully suggest to the majority the phrase, “common sense.” I know it is much abused in everyday usage, but it is still the Rocky Mountain Range of reason and interpretation •above the ever-rising flood of legal formulae, clauses, and phrases pouring from our reservoirs of formal law. Proper interpretation and common sense, as I view it, says that Sec. '25-605 R.C.M.1947, as amended applies the proposed salaries to all county offices. It carries the form of the formula-plan, based in reference to population and assessed valuation of the county offices. It carries the form of the formula-plan, based on reference to population and assessed valuation of the county wherein the officers are located. It is impossible to show interfer*160ence ad libitum with the compensation of the officers involved. In fact, it is difficult to find a more impersonal hands-off approach to the question. It deals with compensation through the formula of population and valuation, and does not deal with persons who might be subject to fear or favor. Hoav can the rule of the constitutional limitation as spelled out in the Porter case be said to apply here ?
How about the importunities of office holders who might seek increased compensation not for the office but for themselves? Clearly the act implies to the office, not the officer; and it is not idle semantics to so distinguish. Here there is no wage increase for an individual or individuals as such.
What about control of other branches by the legislative branch? The entire spectrum from county treasurer to clerk of court is here; executive and judicial areas are involved along with quasi-legislative; surely, there is no control of a coordinate branch. The hope of reAvard or the fear of punishment is not present. Here there is no individual that may be placed in fear or in hope; indeed, there is not eA^en a select group that may be so influenced, because of the wages so legislated.
The most dramatic and pragmatic instance of the common sense of this interpretation is found in the case of the judicial salaries. No matter, that judicial increases during term are possible only because of a constitutional amendment; the common sense of it is, those salaries have heen increased during term, and the feared consequences lie only in the fencing with shadows and juggling of language, not in the actual results.
I think this question can be resolved without ever reaching the constitutional one of Equal Protection under the Fourteenth Amendment. But since my brethren of the majority speak of constitutionality, let us consider that question.
The compelling interest mentioned by the court simply doesn’t exist under the facts of the case. Where does the principle of separation of powers suffer from increase of salary during term? Where is the danger of legislative control over executive or judicial ?
*161To speak of eliminating the temptation to control as does the court, I say to them without intending disrespect, who is tempted?
To speak of fundamental fairness, in the face of the variegated salaries for some office, the majority says, “* * * one thing that is clear in considering salaries of elected and appointed officials, when a person files for the office or accepts an appointment he knows what the emoluments are and what they will be during the term.” But that is not true if you are filling out an unexpired term, as in the Porter ease; not true if you are a mayor, as in the Kendig case: and not true if you’re the victim of a reclassification of your county, as in the Zimmerman case; and surely not applicable at all to judicial salaries.
I too have read the decisions of our sister states on this subject. In many, the constitutional provisions are the same or similar; and in some they are different. There are interesting interpretations in all the cases; the main thrust of these cases is as the majority says. But in many decisions on one distinction or another an interpretation resulted in an increase in salary during the term, see Pennsylvania in Appeals of Loushay et al., 169 Pa.Super. 543, 83 A.2d 408, and Missouri State ex rel. McGrath v. Walker, 97 Mo. 162, 10 S.W. 473; State ex rel. Harvey v. Sheehan, 269 Mo. 421, 190 S.W. 864; Denneny v. Silvey, 302 Mo. 665, 259 S.W. 422; Little River Drainage Dist. v. Lassater, 325 Mo. 493, 29 S.W.2d 716.
So I end as I began, with the constitutional provision Article V, Sec. 31, and its rule and purpose. I say that the reason for the rule does not exist under the facts of this case. That is not to say the constitutional limitation embodied in Article V, Sec. 31, is not real and viable and constitutional; in the words of Justice Holloway, “So far as there is reason for the rule which underlies the limitations it must be enforced with the utmost rigor * *
But I say the reason for the rule ceases and fails, and so does the rule itself.
*162■ I had hoped the majority would reach a different result. I had hoped that they would decide this important cause not with an obvious literal interpretation but with reason from the rule and purpose of the constitutional provision itself, and thus •measure the consequences of their decision, and hold the will of the legislator as so expressed here, constitutional. If this was not possible, that they then might sweep Adami aside, and hold Article Y, Sec. 31, violative of the Equal Protection clause. That would have affirmed the court’s belief in equality.
The majority’s latitude and longitude of literalness thwarts .both the reason and rule of the Porter case, and the pragmatic rule of equality of the Equal Protection clause.
Needless to say, I regretfully but vigorously dissent.