Bissett v. Pioneer Irr. Dist.

• Decision Date: 04 January 1912
• Parties: IRWIN BISSETT, Appellant, v. PIONEER IRRIGATION DISTRICT et al., Respondents
• Court: Idaho Supreme Court

120 P. 461

21 Idaho 98

IRWIN BISSETT, Appellant, v. PIONEER IRRIGATION DISTRICT et al., Respondents

Supreme Court of Idaho

January 4, 1912

IRRIGATION DISTRICT LAW-BOND ISSUE ELECTION-VALIDITY OF STATUTE-QUALIFICATION OF ELECTORS.

(Syllabus by the court.)

1. The act of March 6, 1911 (1911 Sess. Laws, p. 461), having been held unconstitutional and void, could not work a repeal of secs. 2375, 2376 and 2379, which that act sought to amend and those sections are still in force and effect.

2. Where an act of the legislature attempts to amend certain sections of the statute and to repeal the old sections or other sections of the statute supposed to be in conflict therewith and the amendatory act is held unconstitutional and void, such act does not work a repeal of the sections amended or sought to be repealed.

3. Under the provisions of sec. 20, art. 1, of the constitution the legislature has the power and authority to prescribe a property qualification for any person to vote at an election creating an indebtedness, but the legislature by the adoption of sec. 2396 of the Rev. Codes has not provided such a qualification for voting at an election to be held for the purpose of voting a bond issue in an irrigation district, and no such qualification has been required by the legislature.

4. Under the provisions of sec. 2386 of the Rev. Codes, an irrigation district has the power and authority to issue bonds for the purpose of collecting drainage, waste and seepage water and storing the same for the irrigation of land within such district.

5. As to whether or not an irrigation district may vote bonds for the purpose of constructing a drainage system within such irrigation district and draining overflowed and submerged lands, considered but not decided.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Suit for an injunction to restrain an irrigation district and the directors thereof from holding an election to vote upon the question of a bond issue. Judgment for the defendant and plaintiff appealed. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

Young &amp Brinck, for Appellant.

The property qualification contained in secs. 2375, 2376 and 2379, Rev. Codes, is clearly within the rule of Pioneer Irrigation Dist. v. Walker, and in violation of sec. 20, art. 1, of the constitution.

"If the provisions of an act are so connected in subject matter, dependent on each other, and designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other, then if one part falls the entire act must fall." (Cunningham v. Thompson, 18 Idaho 149, 108 P. 898; International Text Book Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 27 L. R. A., N. S., 493, 18 Ann. Cas. 1103; Campbell v. Bryant, 104 Va. 509, 52 S.E. 638; Blades v. Board of Water Commrs., 122 Mich. 366, 81 N.W. 271.)

An unconstitutional act of the legislature is as ineffectual as though it had never been passed. (Boales v. Ferguson, 55 Neb. 565, 76 N.W. 18.)

Sec. 2396 not being complete in itself, and not being rendered more so by reference to any other statute which is valid and existing, is uncertain and incapable of execution, and is invalid and of no force or effect. (Knight v. Trigg, supra; Hettinger v. Good Road Dist. No. 1, 19 Idaho 313, 113 P. 721.)

Rice, Thompson & Buckner, for Respondents.

The sections of the amendatory act which by implication repealed secs. 2375, 2376 and 2379 having been declared unconstitutional, the original sections must stand. (Barker v. State, 118 Ga. 35, 44 S.E. 874; People ex rel. Akin v. Butler St. Foundry & Iron Co., 201 Ill. 236, 66 N.E. 349; Ex parte Davis, 21 F. 396.)

"The unconstitutional provision for a property qualification of voters contained in said secs. 2375, 2376 and 2379 can be separated, so that though the unconstitutional provisions fall, the constitutional provisions may stand." (Cornish v. Tuttle, 53 Wis. 45, 9 N.W. 791; People v. Kenney, 96 N.Y. 295; Browne v. City of Mobile, 122 Ala. 159, 25 So. 223; State v. Ray, 153 Ind. 334, 54 N.E. 1067; In re Abel, 10 Idaho 288, 77 P. 621; State v. Scampini, 77 Vt. 92, 59 A. 201.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

The respondent, the Pioneer Irrigation District, was duly organized in the year 1901 under and in conformity with the irrigation district law, and the organization thereof was thereafter duly confirmed by a decree of the court. (Pioneer Irrigation District v. Bradbury, 8 Idaho 310, 101 Am. St. 201, 68 P. 295.) It has ever since been operating and doing business under and in conformity with the irrigation laws of the state. The case now before us involves the proposed action of the board of directors of the district in reference to calling a bond election for the purpose of voting an issue of bonds in the sum of $ 313,290 to carry out a plan which has been adopted for the collection of drainage, waste and seepage waters within the district, and the storage of the same for use in the irrigation of lands of the district. The appellant herein applied to the district court for an injunction to restrain and enjoin the directors from further proceeding in accordance with the plans proposed. The district court denied the application, and this appeal was thereupon prosecuted.

We will consider the questions presented in the order in which they are considered in the briefs.

1. The appellant assigns each of the conclusions of law made by the trial court as error, the first of which is as follows: "That that portion of the act amending secs. 2375, 2376 and 2379 of the Revised Codes of Idaho, being held unconstitutional, said sections sought to be amended by said amendatory act are not affected." Appellant contends that since this court has held the act of March 6, 1911 (1911 Sess. Laws, p. 461), unconstitutional (Pioneer Irrigation Dist. v. Walker, 20 Idaho 605, 119 P. 304), and that act having repealed secs. 2375, 2376 and 2379, the result is that neither the act of March 6, 1911, is, nor sections 2375, 2376 and 2379 are, in force or effect, and that an election cannot be held under either statute. This contention is not tenable. If the amendatory act fails as the act of March 6, 1911, has failed, it has no force or effect and cannot work the repeal, either by direct terms or by implication, of any other statute. The intention to repeal secs. 2375, 2376 and 2379 grows out of and resulted only from the purpose and intention of the legislature to amend and replace those sections by the act of March 6, 1911. There was no intention, however, to repeal those sections of the old statute without leaving something in their place and stead, and since the attempted legislation in place and stead of secs. 2375, 2376 and 2379 failed by reason of the unconstitutional provisions therein contained, the attempt to repeal or amend the old sections failed for the same reason. This is a well-established rule of law. (Barker v. State, 118 Ga. 35, 44 S.E. 874; Aiken v. Butler Street Foundry and Iron Co., 201 Ill. 236, 66 N.E. 349; Ex parte Davis, 21 F. 396.)

2. The second conclusion of law made by the court is as follows: "That the unconstitutional provision for a property qualification of voters contained in said secs. 2375, 2376 and 2379 can be separated, so that though the unconstitutional provisions fall, the constitutional provisions may stand."

The election involved in this case is not such an election as is provided for by sec. 2375. That section provides for an election to determine whether or not a district shall be organized, and sec. 2376 provides the manner of conducting the election. We fail, therefore, to see wherein the construction or consideration of secs. 2375 and 2376 is involved in this case. The decision of this court in Pioneer Irrigation District v. Walker, 20 Idaho 605 119 P. 304, was dealing with an election to be held subsequent to the organization of the district, and we did not in that case consider or pass upon the question as to the validity of a statute which prescribes a property qualification for the purpose of participating in the organization of a district, and for that reason, as well as the further reason that we do not consider secs. 2375 and 2376 necessarily involved in this action, we reserve the opinion of the court thereon. Sec. 2379 is the section of the statute which applies to this case. That section governs "all elections in said district subsequent to the organization thereof," and it is to this section (2379) that sec. 2396 refers. This latter section is dealing with the subject of an election to vote on the question of the issuance of bonds. It provides, among other things, as follows: "The board of directors of an irrigation district shall call a special election at which it shall submit to the electors of said district possessing the qualifications prescribed by this title, the question whether or not the bonds of said district . . . . in the amount as determined, shall be authorized. . . . Said election must be held and the results thereof determined and declared in all respects as nearly as practicable in conformity with the provisions of this title governing the election of officers." Now it is clear that sec. 2379 is unconstitutional in so far as it requires that a person shall be "a holder of land within the boundaries" of the irrigation district in order to entitle him to vote at an election of district officers. It was distinctly so held by this court in Pioneer Irrigation Dist. v. Walker, 20 Idaho 605, 119 P. 304, in passing on the act of March 6, 1911. The fact, however, that the statute attempts to require this...