Carlson v. Mullen

• Decision Date: 06 January 1917
• Citation: 162 P. 332,29 Idaho 795
• Parties: GUS CARLSON et al., as Board of County Commissioners of Ada County, Appellants, v. D. C. MULLEN et al., and TRUSTEES OF SCHOOL DISTRICT No. 47, Respondents
• Court: Idaho Supreme Court

162 P. 332

29 Idaho 795

GUS CARLSON et al., as Board of County Commissioners of Ada County, Appellants, v. D. C. MULLEN et al., and TRUSTEES OF SCHOOL DISTRICT No. 47, Respondents

Supreme Court of Idaho

January 6, 1917

SCHOOL DISTRICTS - INDEPENDENT SCHOOL DISTRICTS - CREATION - SIGNERS-PETITION-SUFFICIENCY OF-STATUTORY CONSTRUCTION-CONSTITUTIONALITY-INVALID IN PART.

1. Under the provisions of chapter 159 of the Sess. Laws 1911 at page 483, it was the intention of the legislature to provide for the organization and creation of independent school districts and school districts, and to provide a distinct procedure for the creation and organization of both independent school districts and school districts, and to classify such school districts separately in said act, which is a complete code and system for the creation, government and regulation of both classes.

2. Held, that sec. 47b, chapter 159, Sess. Laws 1911, as amended by chapter 119, Sess. Laws 1913, at page 462, subdivision "b," is constitutional, and applicable to the organization of school districts; the words "or independent school districts" in said section are in no way dependent upon or inseparably connected with the balance of the section, and may be properly considered as surplusage and void.

3. Where a word, clause or sentence appears in a statute which clearly defeats the intention of the legislature and which may be stricken out or entirely omitted without in any manner defeating the object or purpose of the statute, and where the intention of the legislature can be definitely determined from the statute with the word, clause or sentence stricken out, this may be done.

[As to rules for the construction of statutes, see note in 12 Am.St 826]

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action to determine the legality of School District No. 63, created in part out of School District No. 47. Affirmed.

Decision of the district court affirmed. Costs awarded to respondent.

R. L Givens and E. P. Barnes, for Appellants.

The case of Wood v. Independent School District, 21 Idaho 734, 124 P. 780, clearly holds that there is a vast distinction between independent school districts and ordinary school districts, and that art. 13 of the school law of 1911, chapter 159, controls as to independent districts, while art. 5, in which is found section 47, controls as to ordinary school districts.

Under the rule in Epperson v. Howell, 28 Idaho 338, 345, 154 P. 621, it is clearly impossible to separate or split up this statute to give it the effect contended for by defendants, for not only would the law have to be segregated, but it would be necessary under subdivision B of section 47, on page 463 of the 1913 Session Laws, to separate a sentence and strike out the words, "Independent School Districts."

If the supreme court were to adopt the theory advocated by defendants, that we could perforce pick and choose a word here and a word there, the meaning of a paragraph or a law could be so destroyed and changed as to entirely nullify the will of the legislature. That is not the theory upon which the courts have decided cases of this kind.

Martin & Cameron, for Respondents.

Where a part only of a statute is unconstitutional and therefore void, the remainder may still have effect under certain conditions. (Epperson v. Howell, 28 Idaho 338, 154 P. 621; In re Abel, 10 Idaho 288, 77 P. 621.)

The rule may apply where the parts in question are in the same section, provided the separation can be accomplished without rewriting the act. (36 Cyc. 977, n. 27; 44 Cent. Dig., tit. "Statutes," 58.)

BUDGE, C. J. Morgan, J., concurs.

OPINION

BUDGE, C. J.

A petition for a new school district, to be created in part from district No. 47, was presented by A. M. Powell and others to the board of county commissioners of Ada county. The petition was signed by the parents or guardians of ten children of school age who were residents of the proposed new district. The commissioners granted the prayer of the petition and entered their order whereby they undertook to create a new school district, to be known as district No. 63. From this order of the commissioners the trustees of school district No. 47 appealed to the district court in and for Ada county, where said order was reversed.

This appeal is prosecuted from the judgment thus made and entered by the district court. We are first met with a motion made in this court to dismiss the appeal on the ground that no undertaking on appeal was filed or served by the appellants, as required by secs. 4808 and 4809, Rev. Codes. Since, however, this case will be disposed of upon another ground, we have concluded neither to discuss nor determine the question upon the motion to dismiss the appeal for failure to file and serve the undertaking on appeal.

So far as the merit of this case is concerned, the sole and only question in issue is the sufficiency of the petition presented to the commissioners, as regards the number of children of school age whose parents or guardians were signers of said petition.

It is the contention of appellant that sec. 47b, chapter 159, Sess. Laws 1911, as amended by Sess. Laws 1913, at page 436 (which section will hereafter be referred to as "the former section"), is now the law and in force, and controls in so far as the number of children of school age, who are residents of the proposed new district and whose parents or guardians are signers of the petition, is concerned. Said section provides: "A petition for a new district to be created out of unorganized territory, or to be created by the division of one district only, shall be sufficient if signed by the parents or guardians of ten (10) or more children of school age who are residents of the proposed new district, and no further signers shall be required. . . . "

While, upon the other hand, it is the contention of the respondent that sec. 47b, chapter 159, Sess. Laws 1911, as amended by the Sess. Laws 1913, at page 462 (which section will hereafter be referred to as "the latter section"), is the present law governing the creation of school districts, wherein it is provided: "A petition for a new district, whether to be created from unorganized territory or in part from territory embraced within the boundaries of one (1) or more school districts or independent school districts shall be sufficient if signed by the parents or guardians of fifteen (15) or more children of school age who are residents of the proposed new district, and no further signers shall be required. . . . "

Counsel for appellant insists that the latter section is unconstitutional and void, because it confuses "independent school districts" and "school districts," and because it attempts to amend or change the formation of independent school districts, the procedure for which is laid down in art. 13, chapter 159, Sess. Laws 1911, without having a sufficient title to the act to authorize such change and without any reference being made to such chapter.

From the foregoing statutory provisions, considered as a whole, it is quite evident that it was the intention of the legislature to keep the procedure as to the organization and creation of independent school districts and school districts separate but we do not think that it necessarily follows that the latter section must be held to be wholly void and the former sustained in order to accomplish this purpose. Neither do we agree with counsel's...