Ballentine v. Willey

• Decision Date: 13 January 1893
• Parties: BALLENTINE v. WILLEY, GOVERNOR, ET AL
• Court: Idaho Supreme Court

31 P. 994

3 Idaho 496

BALLENTINE v. WILLEY, GOVERNOR, ET AL

Supreme Court of Idaho

January 13, 1893

PETITION by James M. Ballentine for a writ of mandate.

Application denied. Costs in favor of defendants.

Texas Angel and Oroville E. Jackson, for Plaintiff.

The relator contends that the state board of canvassers, under provisions of the statute, had a ministerial duty to perform with respect to the returns in their hands from Ada county showing the votes cast in said county for the said J. M Ballentine. It is within the power of the court at this time by its mandate to compel the performance of such duties. (High on Extraordinary Legal Remedies, p. 49, sec. 60; In re Strong, 20 Pick. (Mass.) 484; People v. Rines, 27 Ill. 242; People v. Hilliard, 29 Ill. 419; Browns v. O'Brien, 2 Ind. 423; Hisler v. Cannon, 39 Ind. 488; State v. Circuit Judge of Mobile, 9 Ala. 338; State v. Gibbs, 13 Fla. 55; Ellis v. County Commissioners of Barton, 2 Gray, 370; Clark v. McKenzie, 7 Bush, 523; People v. Mattison, 17 Ill. 167; State v. Lawrence, 3 Kan. 95; Smith v. Lawrence, 2 S. Dak. 185, 49 N.W. 7.) The statute imposes a purely ministerial duty upon the board. (State v. Thayer, 31 Neb. 82, 47 N.W. 704; Ex parte Elliott, 33 S.C. 602, 12 S.E. 423; State v. Crawford, 28 Fla. 441, 10 So. 118, 7 Iowa 186.) It is a well-established rule of construction that the courts will presume a legislative act valid and constitutional, and will construe it as such, if possible. (Sutherland on Statutory Construction, sec. 331; Cooley's Constitutional Limitations, 223.) It is another well-established rule of construction that in case the court is in doubt as to the constitutionality of an act, such doubt must always be solved in favor of its validity. (Cooley on Constitutional Limitations, 220; Wellington, Petitioner, 16 Pick. 95, 26 Am. Dec. 631; Brown v. Buzan, 24 Ind. 194; Cooper v. Talfair, 4 Dall. 18; Dow v. Norris, 4 N.H. 16, 17 Am. Dec. 400; Flint R. Steamboat Co. v. Foster, 5 Ga. 194, 48 Am. Dec. 248, and note.) When the unconstitutional part of a statute is stricken out, and that which remains is complete in itself, and capable of being executed in accordance with the plain legislative intent, wholly independent of that which was rejected, it must be sustained. (Donnersberger v. Prendergast, 128 Ill. 229, 21 N.E. 1.)

Wood & Wilson and Silas W. Moody, for Defendants.

If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect valid as to the other. But, if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. (Warren v. Mayor, 2 Gray, 84; State v. Commissioners, 5 Ohio St. 497; Slauson v. Racine, 13 Wis. 398; Allen Co. Commrs. v. Silvers, 22 Ind. 491; Eckhert v. State, 5 W.Va. 515; Allen v. Louisiana, 103 U.S. 80.)

OPINION

PER CURIAM

This is an application made by J. M. Ballentine for a writ of mandate to compel the defendants, as the state board of canvassers, to proceed to examine and make a statement of the whole number of votes cast at the election held November 8, 1892, for the office of member of the House of Representatives for Ada county, and make the proper return thereof to the Secretary of State, and to compel the Secretary of State to issue a certificate of election to the plaintiff to the said office of member of the House of Representatives from Ada county. An alternative writ was issued, and on the return thereof the defendants A. J. Pinkham, as Secretary of State, Silas W. Moody, as state auditor, and Frank R. Coffin, as state treasurer, appeared, and demurred to the petition. The defendants Norman B. Willey, as governor, and George H. Roberts, attorney general, appeared, and by answer admitted the allegations of the petition. The case was heard upon the demurrer of defendants Pinkham, Moody, and Coffin.

This case arises out of an act passed by the first legislature of the state of Idaho, entitled "An act providing for the apportionment of the legislature," approved March 13, 1891 (1st Sess. Laws, p. 195). Said act was passed under and by virtue of the provisions of section 4 of article 3 of the constitution, which section provides as follows: "The members of the legislature shall be apportioned to the several legislative districts of the state in proportion to the number of votes polled at the last general election for delegate to Congress, and thereafter to be apportioned as may be provided by law; provided, each county shall be entitled to one representative." At the date of the approval of said apportionment act the state of Idaho was composed of eighteen counties, and said act declared the representation that each of said eighteen counties was entitled to. Prior to the approval of said apportionment act, an act was passed organizing the counties of Alta and Lincoln out of the territory theretofore included in the counties of Alturas and Logan, which act was thereafter declared unconstitutional by this court. After the act organizing the counties of Alta and Lincoln had been held unconstitutional, said apportionment act gave representation to two counties that had no existence, viz., Alta and Lincoln, and failed to give representation to two existing counties, viz., Alturas and Logan. The vital question for determination is the validity of said apportionment act, for upon the determination of that question depends partly, if not wholly, the right of the plaintiff to the issuance of the writ of mandate prayed for.

Counsel for plaintiff contend, regardless of the fact that the act creating the counties of Alta and Lincoln had been declared unconstitutional and void, that that part of said apportionment act which provides the representation for all counties except Alta and Lincoln should be held valid, and given effect, and that, as legislative representation for Alturas and Logan counties is not provided for by said act they are entitled to the representation provided for them by the constitution; while the defendants Pinkham, Moody and Coffin contend that said act is unconstitutional and void, for the reasons that it provides legislative representation for nonexisting counties; that it fails to give representation to existing counties; and that the intent and object of said act was to accomplish a single purpose only, to wit, that of making an apportionment of the entire state for legislative representation, and that without the void part the act cannot effect such purpose; and cite in support thereof several authorities. Counsel for plaintiff cite in support of their contention, Cooley's Constitutional Limitations, page 209. The author says: "It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional because it is not within the scope of legislative authority. It may either propose to accomplish something prohibited by the constitution, or to accomplish some lawful, and even laudable, object, by means repugnant to the constitution of the United States or of the state. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just, constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, it must be sustained." This quotation from Cooley's Constitutional Limitations is found in plaintiff's brief, and was dwelt upon with emphasis and energy by counsel for plaintiff in their oral argument to the court. It correctly states the rule of law which governs and should control in the construction of a statute valid in part and void in part. Immediately following the above quotation that distinguished author says: "The difficulty is in determining whether the...