Chambers v. McCollum

Decision Date10 December 1928
Docket Number5044
Citation272 P. 707,47 Idaho 74
PartiesELIJAH R. CHAMBERS, Appellant, v. EFFIE E. MCCOLLUM, as Treasurer of Clearwater County; JOSEPH KAUFMAN, as Auditor of Clearwater County; and BEN E. BUSH, as State Forester of the State of Idaho, Respondents
CourtIdaho Supreme Court


1. Idaho Forestry Law (Laws 1925, chap. 150) held not unconstitutional as embracing more than one subject in its title, under Const., art. 9, secs. 7, 8, requiring state lands to be made the subject of legislation distinct and apart from all other subjects of legislation, where title though relating to both state and privately owned lands stated that the act related to the forests of the state and their preservation.

2. Idaho Forestry Law (Laws 1925, chap. 150), giving state co-operative board of forestry authority to determine policies and make rules and regulations and appoint state forester, held not void as involving unlawful delegation of legislative power.

3. Forestry Law (Laws 1925, chap. 150), sec. 30, permitting state forester to determine whether certain material on land constitutes fire menace, held within legislative power to authorize finding of particular facts by administrative officer or board.

4. Legislature may delegate to executive or administrative officers power to determine facts or happening of contingency on which statute depends.

5. Forestry Law (Laws 1925, chap. 150) held not void as unlawful delegation of legislative authority as to section 1 permitting state board of land commissioners to fix salary of deputy state forester whose appointment may be recommended by state forester.

6. Forestry Law (Laws 1925, chap. 150) held not void for indefiniteness as to section 2, giving state forester authority to divide state into forest protective districts which specifically applies to every owner of forest lands in the state.

7. Forestry Law (Laws 1925, chap. 150) held not void as not operating equally upon all persons and subject matters in similar situations, as to section 2, giving state forester right to divide state into forest protective districts, since right specifically applies to every owner of forest lands in the state.

8. Charge levied against land under Forestry Law (Laws of 1925 chap. 150) sec. 4, providing for state fire protection at actual cost and collection of amount due from lands protected, where owner neglects to provide adequate protection, held not to constitute double taxation, in violation of Const., art. 7, sec. 5, since amount required is not tax, but is an indebtedness due by reason of protection furnished.

9. Forestry Law (Laws 1925, chap. 150) held not void as denying due process as to section 4, authorizing state forester to determine whether or not the owner of forest land has provided adequate protection against starting, existence or spread of fires thereon, since land owner is not deprived of access to courts, under ordinary constitutional guaranties, for purpose of having it determined whether fire protection which he furnishes is efficient or equal in standard of other owners.

10. Forestry Law (Laws 1925, chap. 150) held not void as denying due process of law as to section 4, which permits state forester to charge forest lands with actual costs of fire protection rendered in case land owner fails to provide such protection, since hearing before board is expressly provided for and recourse to courts is not denied.

11. It is not always necessary that resort to court of justice be permitted in order to give due process of law.

12. Forestry Law (Laws 1925, chap. 150) held not to deprive property owner of his property without due process, in violation of Const. U.S. , Amend. 14, sec. 1, and Const. Idaho, art. 1, sec. 1, as to section 13 of the act, which provides against setting certain fires during summer season without permission from state forester or fire-warden.

13. Subject upon which police power of states may be exerted, is not limited by due process clause of Const. U.S. , Amend. 14, sec. 1, and use of property may be reasonably restricted, notwithstanding grant of inalienable rights under Const. Idaho, art. 1, sec. 1.

14. Legislative enactment will not be held unconstitutional unless its invalidity clearly appears, and, in case of doubt, act will be found valid.

15. Court did not err in sustaining demurrers and dismissing complaint, where record failed to show application to court for petition to amend either before or after sustaining demurrers.

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.

Suit by Elijah R. Chambers against Ben E. Bush, as State Forester, and others. From judgment dismissing complaint after demurrers sustained thereto, plaintiff appeals. Affirmed.

Judgment affirmed. Costs to respondent.

Benjamin F. Tweedy, for Appellant.

Under section 4 of the Idaho law, the "State Forester has no right to furnish protection or to make a charge, if the plaintiff has maintained the required protection, and, as to whether the plaintiff has or not, is a judicial question, and cannot be heard and decided by the 'Board' under section 31 of the Forestry Law, if there is an appeal to the 'Board' on the question, as judicial power cannot be conferred upon that 'Board.'"

And we say that, to make the Forestry Law constitutional, it must contain provisions for the decision of all judicial questions by the constitutional courts of Idaho. (Speer v. Stephenson, 16 Idaho 707, 102 P. 365; State v. Title Guaranty etc. Co., 27 Idaho 752, 152 P. 189; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. 201, 68 P. 295; In re Roberts, 4 Kan. App. 292, 45 P. 942; Christy v. Kingfisher, 13 Okla. 585, 76 P. 135-142; Oregon Lumber Co. v. East Fork Irr. Dist., 80 Ore. 568, 157 P. 963; Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803.)

Requiring the protection, furnished by the appellant, to meet "with the approval of the State Forester" vests in the state forester arbitrary power, from which there is no appeal to any court, and can result in unjust discriminations, just as in the case of Schaezlein v. Cabaniss, 135 Cal. 466, 87 Am. St. 122, 67 P. 755, 56 L. R. A. 733.

Fixing the boundaries of, and creating, a "flood control district," are legislative questions. (Los Angeles County Flood Control District v. Hamilton, 177 Cal. 119, 169 P. 1028.)

Fixing the boundaries of, and creating "Forest Protective Districts" in Idaho, likewise, we contend, are legislative questions. And, by section 2 of the Forestry Law, the legislature has delegated the authority to the "State Forester" to fix the boundaries of, and to create. (Territory v. Stewart, 1 Wash. 98, 23 P. 405, 8 L. R. A. 106; sec. 1 of the Forestry Law.)

The authority is delegated to the "Board" to decide what rules and regulations for the administration of the forest laws do not conflict with the constitutional duties of the state board of land commissioners.

As to what rules and regulations conflict with the constitutional duties of the State Board of Land Commissioners is wholly and exclusively, in the first instance, a "legislative question," and cannot be delegated to the "board" by the legislature. (State v. Young, 29 Minn. 474, 9 N.W. 737.)

The authority to make rules and regulations cannot be vested in boards that are created by the legislature, but, where there are constitutional boards, such as county commissioners, the legislature can leave to them the making of necessary rules and regulations for the accomplishment of a legislative purpose and scheme, such as municipal government. (Wyandotte County Commissioners v. Abbott, 52 Kan. 148, 34 P. 416.)

Assume, for the purpose of point, that the charge against the plaintiff is for special benefit to his property, then, whether there has been any "special benefit" to his land is a "judicial question," which must be finally decided by the constitutional courts, and not by the State Forester or by the "Board" under section 31 of the Forestry Law, but the Forestry Law makes the decision of the forestry officers final on the question, and, since there is no provision in the Forestry Law for submitting this "judicial question" to the courts, the law is unconstitutional and void. (Pioneer Irr. District v. Bradley, supra; Drainage District No. 2. v. Extension Ditch Co., 32 Idaho 314, 182 P. 847; Portneuf Irr. Co. v. Budge, 16 Idaho 116, 18 Ann. Cas. 674, 100 P. 1046; Eagleson v. Rubin, 16 Idaho 92, 100 P. 765.)

Frank L. Stephan, Attorney General, S.E. Blaine, H. O. McDougall, Assistants to Attorney General, and Arthur S. Guerin, for Respondents.

The constitutional right to acquire, possess or protect property does not prohibit a reasonable restriction in the exercise of the police power of the state and all property is held under an implied obligation that the owner's use of it shall not be injurious to the public. (State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259; State v. Horn, 27 Idaho 782, 152 P. 275; Judefind v. State, 78 Md. 510, 28 A. 405, 22 L. R. A. 721; Minneapolis etc. R. Co. v. Beckwith, 129 U.S. 26, 9 S.Ct. 207, 32 L.Ed. 585; Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; In re Newell, 2 Cal.App. 767, 84 P. 226; 12 Corpus Juris, 1197, 1198, sec. 962.)

The protection of the forests of this state from fire is a proper and reasonable exercise of the police power of the state. (State v. Pape, 103 Wash. 319, 174 P 468; First State Bank of Sutherlin v. Kendall Lumber Corp., 107 Ore. 1, 213 P. 142; Union Fishermen's Co. v. Shoemaker, 98 Ore. 659, 193 P. 476, 194 P. 854; State v. Bunting...

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