
    GARRETT FREIGHTLINES, INC., a corporation, Plaintiff and Appellant, v. the MONTANA RAILROAD AND PUBLIC SERVICE COMMISSION et al., Defendants and Respondents.
    No. 11586.
    Submitted June 13, 1969.
    Decided June 23, 1969.
    457 P.2d 469
    Libra & Bolkovatz, A. L. Libra argued, Helena, for plaintiff and appellant.
    William E. O’Leary, argued, Helena, for defendants-resfondents.
   MR. CHIEF JUSTICE JAMES T. HARRISON

delivered the Opinion of the Court.

Appeal by the plaintiff from a judgment entered in the dis-strict court of Lewis and Clark County following the sustaining of a motion to dismiss filed by the defendants. Plaintiff filed this action and alleged that certain portions of the Montana Motor Carrier Act, (Chap. 1,' Title 8, R.C.M.1947) violated the Constitutions of the State of Montana and the United States. . Defendants filed motion to dismiss on the .■ground the complaint failed to state a claim upon which relief could be granted.' The district court granted the motion, judgment was entered, and this appeal followed.

The matter involves gross revenue taxes which were paid under. protest by the plaintiff.

In support of their motion defendants argued (1) that the Montana Constitution in Art. XII, Sec. lb, expressly excludes from .consideration the fees in question, contrary to the position of the plaintiff; and (2) the allegations of the complaint have, b.een answered in prior Montana Supreme Court .and United..States Supreme Court cases which resulted in decisions favorable to the defendant Montana Railroad and Public Service Commission (hereinafter referred to as the Board) and •adverse to the position of the plaintiff.

Actually what the movant urges is that the complaint in this cause is without merit, such lack of. merit being the •absence of - law to support the position of plaintiff since the ■existing state law is directly, contrary to the allegations made in the complaint.

For .instance, defendants as to certain features of the case rely upon the decision of this Court in Board of Railroad Com’rs v. Aero Mayflower Transit Co., 119 Mont. 118, 172 P.2d 452, affirmed by the United States Supreme Court in 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99. Plaintiff concedes that this case is authoritative .but assets that practically all the record facts were contained in the pleadings, as. noted in the opinion, but such situation does not exist in this cause and. that .plaintiff’s statistics from its present operations.should be-before the Court.for a determination of the issue as it now exists. Defendants in their brief state that they would not disagree with this contention if the allegations of the complaint were such as to allege new facts in support of plaintiff’s, position, but they contend that no facts were alleged sufficient-to support any full hearing.

Since we are of the contrary opinion it is difficult to discuss-these various contentions without being guilty of prejudging the case without a full hearing. Suffice it to say that in our opinion the district court should not have granted defendants’’ motion to dismiss.

The language used by the Alaska Supreme Court in Ault v. Alaska State Mtg. Ass’n, Alaska (1963), 387 P.2d 698, appears-particularly appropriate. There the constitutionality of certain acts of the legislature were at issue. There were numerous-allegations of illegality in that ease, none of which were supported by evidence. Motion for summary judgment was made, supported by an affidavit. The opinion states: “Counsel then, attempted to provide in a very general way, in argument, the factual background that should have been supplied by evidence.

“The issues in this case are too important to be processed in so casual a manner. It has been held that a constitutional issue should not be disposed of by summary judgment. Likewise it has been held as to other public issues of great importance since, by its very nature, the record produced in a summary proceeding is inferior to that of a full adversary proceeding. On the other hand, where the record produced was full and adequate and no issue of fact remained, courts have frequently made disposition by summary judgment.

“In DeArmond v. Alaska State Dev. Corporation [No. 116, 376 P.2d 717 (Alaska 1962], a number of constitutional .questions were disposed of after hearing on plaintiff’s motion for summary judgment and judgment on the pleadings. However, the court had before it the direct and cross examination of seven expert witnesses and numerous exhibits containing statistics and other facts, all of which’ was sufficient to give the court' the knowledge background it needed in order to intelligently consider the issues.

“We are not holding that summary judgment procedure in cases of this nature is unacceptable. We do hold that if summary procedure is employed in cases involving important public issues where any fact is in dispute the trial judge should not attempt to render a decision unless he is satisfied that the evidence, both pro and con, is sufficient to give him the necessary background of knowledge.”

The causé is remanded to the district court with directions to vacate the judgment and order, and to further proceed consistent, with the views herein expressed.

MR: JUSTICES HASWELL, CASTLES and BONNER, concur.  