ARTHUR MARTIN, District Judge.
The circumstances leading to this appeal are brief. On November 30, 1972, plaintiff
After the effective date of the new Act, plaintiff, without changing character of relief sought, filed an amended complaint. On motion of defendants (a group of appropriators or claimants who have or appear to have, rights in the source of supply of water rights sought by plaintiff, Cow Creek), the district court dismissed the amended complaint on the ground plaintiff's action was abated by the repeal of section 89-829. The propriety of the dismissal on that ground is the primary issue on this appeal.
Authority for the district court's dismissal is derived from section 43-512, R.C.M. 1947, which provides:
Section 43-512 is an extension of common law stated in 73 Am.Jur.2d, Statutes, § 389:
This rule applies especially to remedial statutes such as section 89-829, R.C.M. 1947. 73 Am.Jur.2d, Statutes, § 11; Lemon v. Los Angeles Terminal Ry. Co., 38 Cal.App.2d 659, 102 P.2d 387, 393; Continental Oil Co. v. Mont. C. Co., 63 Mont. 223, 230, 207 P. 116.
Initially on appeal, arguments presented in behalf of appellant were directed toward showing that the Water Use Act contained provisions which saved the proceeding from the annihilating effect of section 43-512, R.C.M. 1947. Subsequently, supplemental briefs were submitted which placed emphasis on constitutional considerations rather than legislative intent. We agree that constitutional provisions are controlling in disposition of this appeal.
Article III, Sec. 15, of the 1889 Montana Constitution, provided:
In 1972, Montana adopted a new constitution which became effective on July 1, 1973. Subdivisions (2) and (3) of Section 3, Article IX of the 1972 Constitution are substantially the same as Article III, Sec. 15, of the 1889 Constitution, but two provisions of significance to this case, subdivisions (1) and (4), were added in Section 3, Article IX of the 1972 Constitution.
Subdivision (1) provides:
Subdivision (4) provides:
This paragraph will hereafter be referred to herein as the "transition clause".
See also: State ex rel. Stafford v. Fox-Great Falls Theatre Corp., 114 Mont. 52, 132 P.2d 689.
This Court in State v. Aitchison, 96 Mont. 335, 341, 30 P.2d 805, 808, in discussing the constitutional provision relative to public use of water, said:
We construe Article IX, Section 3(1) of the 1972 Constitution as not only reaffirming the public policy of the 1889 Constitution but also as recognizing and confirming all rights acquired under that Constitution and the implementing statutes enacted thereunder. Construed in this context, Article IX, Section 3, with the exception of subdivision (4), is self-executing.
As urged by respondents, legislation may be enacted in contemplation of constitutional provisions to become effective at a later date. State ex rel. Woodahl v. Straub, 164 Mont. 141, 520 P.2d 776. Proceeding from this premise respondents argue the repeal of section 89-829, R.C.M. 1947, took effect before the effective date of the 1972 Constitution with the result that appellant had no existing right that could be recognized and confirmed. The routing of the repealing provision of the Act through section 43-512, R.C.M. 1947, has the effect of giving these statutory provisions priority over the 1972 Constitution. The statutory repealing provision and section 43-512, operating together, say that appellant has lost its right to proceed under section 89-829, R.C.M. 1947. On the other hand, Article IX and the transition clause of the 1972 Constitution express an intent to the contrary.
The supremacy of constitutional mandates is too well established to require citation. This principle is summarized in 16 Am.Jur.2d, Constitutional Law, § 56:
Montana is in accord. O'Bannon v. Gustafson, 130 Mont. 402, 303 P.2d 938; State ex rel. Nagle v. Stafford, 97 Mont. 275, 34 P.2d 372; State ex rel. Du Fresne v. Leslie, 100 Mont. 449, 50 P.2d 959.
Against this background we turn to the question of whether appellant has an existing right within the meaning of the key words of Article IX, Section 3(1), 1972 Constitution — "All existing rights to the use of any waters * * *." We construe these words in the light of the established principles of construction as stated in 16 C.J.S. Constitutional Law § 19:
See also: State ex rel. Stafford v. Fox-Great Falls Threatre Corp., 114 Mont. 52, 132 P.2d 689; Rider v. Cooney, 94 Mont. 295, 23 P.2d 61.
The word "rights" is limited only by the word "existing". Outside this limitation it extends to "All", a word that needs no definition. We agree with amicus curiae that priority in appropriation of water is a valuable right and quote with approval from the cited Utah case, Whitmore v. Murray City, 107 Utah. 445, 154 P.2d 748, 751:
The word "existing" is to be examined in the context of the law under which appellant commenced its action. Rider v. Cooney, supra. Appellant's priority came into existence on November 30, 1972. Respondents' efforts herein to remove whatever priority appellant might have gained by commencing its appropriation is a recognition of the existence of that right.
The words "to" and "use" are to be examined in their relationship to the constitutionally declared policy of "public use" and also in the context of section 89-829, R.C.M. 1947. The filing of a petition under section 89-829 is the first step leading to "use", it being an integral part of putting water to public and beneficial use. Limiting "use" to perfected or actual "use" would nullify the existing right of priority created by the filing.
When the inter-relationship of these words is considered together with the body of the law to which they relate, they ertain their natural meaning. When so read, appellant had "existing rights" when the 1972 Constitution and the Montana Water Use Act went into effect.
Other rules governing constitutional construction fortify the meaning we have given to Article IX, 1972 Montana Constitution. 16 C.J.S. Constitutional Law §§ 14 to 16, state:
The construction we have given to Article IX, Section 3(1), 1972 Montana Constitution, would entitle appellant to proceed in the absence of the transition clause. The transition clause furnishes the final touch. It affirms the rights "recognized and confirmed" by Article IX.
In view of the disposition herein made it is not necessary to consider the legislature intent so extensively discussed by counsel. We note, however, that the Water Use Act discloses a legislative construction consistent with the constitutional provision. Legislative construction of constitutional provisions, though not conclusive, is entitled to great weight. Johnson v. City of Great Falls, 38 Mont. 369, 99 P. 1059; State v. Toomey, 135 Mont. 35, 335 P.2d 1051.
Judgment of the district court is reversed.
CASTLES, JOHN C. HARRISON and HASWELL, JJ., concur.
JAMES T. HARRISON, C.J., and DALY, J., took no part in this opinion, deeming themselves disqualified.