Cleary v. Kincaid

• Decision Date: 09 May 1913
• Citation: 23 Idaho 789,131 P. 1117
• Parties: MAUD LOWRY CLEARY, Plaintiff, v. WILLIAM A. KINCAID, Defendant
• Court: Idaho Supreme Court

131 P. 1117

23 Idaho 789

MAUD LOWRY CLEARY, Plaintiff, v. WILLIAM A. KINCAID, Defendant

Supreme Court of Idaho

May 9, 1913

CONSTITUTION-AMENDMENTS-SELF-OPERATIVE.

1. Constitutional provisions are self-executing when there is a manifest intention that they should go into immediate effect and no ancillary legislation is necessary to the enjoyment of the right given or the enforcement of any duty. This is to be determined from a consideration both of the language used and of the intrinsic nature of the provision itself. If the nature and extent of the right conferred and of the liability imposed is fixed by the provision itself, so that they can be determined by the examination and construction of its own terms, and there is no language used indicating that the subject is referred to the legislature for action, then the provision should be construed as self-executing, and its language as addressed to the courts.

2. The cases of Blake v. Board of Commissioners, 5 Idaho 163, 47 P 734, and Hays v. Hays, 5 Idaho 154, 47 P. 732, cited discussed and distinguished.

3. Sec 6, art. 18 of the constitution, as amended by the amendment adopted by the voters of the state on November 5, 1912, which provides, "by striking out the words 'who is ex-officio tax collector,' after the words 'a county assessor,' and inserting the words 'and also ex-officio tax collector' after the words 'a county treasurer, who is ex-officio public administrator,' " is self-operative, and became a part of the state constitution upon its adoption by the voters of the state at the general election on the 5th of November, 1912.

An original action for a writ of mandate, compelling the county assessor of Ada county to turn over the books and property used and required by the tax collector of said county and permitting the plaintiff as county treasurer to perform the duties of tax collector. Writ allowed.

Writ of mandate issued. No costs taxed.

Cavanah, Blake & MacLane, for Plaintiff.

The contention of the plaintiff is that the amendment is self-operative, and that no action on the part of the legislature was necessary to make it effective.

A self-executing provision is generally held to be one which supplies the rule or means by which the right given may be enforced or protected, or by which a duty enjoined may be performed. (Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249; Keady v. Owers, 30 Colo. 1, 69 P. 509; Eau Claire Nat. Bank v. Benson, 106 Wis. 624, 82 N.W. 604.)

J. H. Peterson, Attorney General, and J. J. Guheen and T. C. Coffin, Assistants, for Defendant.

In the case of Blake v. Board of County Commissioners, 5 Idaho 163, 47 P. 734, the court held that the amendment was not self-executing, and were the court to decide the same in this case, the plaintiff must fail in his application for writ of mandate.

Previous to passing upon the Blake case this court decided the case of Hays v. Hays, 5 Idaho 154, 47 P. 732, which case involved the question as to whether or not sec. 18, art. 5 of the constitution as amended was self-executing, on reasoning precisely similar to that employed in Blake v. County Commissioners, which followed the case of Hays v. Hays. (See, also, State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785; State v. Swan, 1 N.D. 5, 44 N.W. 492; Lehigh Iron Co. v. Lower Macungie Township, 81 Pa. 482; Older v. Superior Court, 157 Cal. 770, 109 P. 478; State v. Bradford, 12 S.D. 207, 80 N.W. 143; Brooks v. Town of Loganville, 134 Ga. 358, 67 S.E. 940; State ex rel. Burns v. Gibson, 195 Mo. 251, 94 S.W. 251.)

The distinction is made in a great many cases in deciding whether a constitutional provision is or is not self-executing as to whether it is addressed to the courts or to the legislature. In those cases wherein it is directory, it either directs the legislature to perform some act or directs that some act be performed which the courts can pass upon without the aid of further legislation. This distinction is brought out very forcibly in Willis v. Mabon, 48 Minn. 140, 31 Am. St. 626, 50 N.W. 1110, 16 L. R. A. 281. (Engstad v. Grand Forks County, 10 N.D. 54, 84 N.W. 577; Century Digest, secs. 32-34; Const. Law, Decennial Digest, secs. 28-30.)

STEWART J. SULLIVAN, J., AILSHIE, C. J., Concurring.

OPINION

STEWART, J.

This is an original application for a writ of mandate to compel William A. Kincaid, the assessor of Ada county, to turn over the books and property used and required by the tax collector of said county and permit plaintiff, as county treasurer of Ada county, to perform the duties of tax collector of said county.

The sole question involved is, whether or not the amendment of sec. 6, art. 18 of the constitution of the state, approved and adopted by the voters of the state of Idaho, November 5, 1912, making the county treasurer tax collector instead of the county assessor, is self-operative, or whether such section requires legislative action in order to make the same effective.

Plaintiff contends that the amendment is self-operative, and that no action on the part of the legislature was necessary to make it effective; while defendant contends that the section is not operative, and that before it can be effective there must be an act of the legislature providing for the election of and defining the duties of tax collector and assessor.

Sec. 6, art. 18 of the constitution of the state of Idaho, before the adoption of the amendment now in question, provided that the county assessor is ex-officio tax collector. The amendment transferred the duties of tax collector from the office of county assessor, and imposed such duties upon the office of county treasurer. The offices of county assessor and county treasurer were in no way affected as to the terms of office or the time of election to the offices, or the compensation of such offices.

The amendment in no way affects or changes the laws of the state providing for and fixing the respective duties of the two officers, assessor and treasurer, as to the particular offices. The amendment only deals with the duties of tax collector, and imposes the duty upon the treasurer of the collection of taxes. Under the amendment the duties of the assessor remain the same as they were before the amendment, except as to the collection of taxes. The section with reference to biennial elections is in no way altered or modified, but remains the same as before the amendment was adopted. The officers to be elected under the amendment are the same officers as were elected prior to the amendment. The amendment requires no legislative act to carry out its provisions. The general laws of the state with reference to the duties of assessors and tax collectors in existence at the time the amendment was adopted apply alike, whether the duties of tax collector be attached to the assessor's office or the county treasurer's, and the separation of the duties of collector from the duties of the assessor and attaching such duties to the county treasurer in no way affects the duties of the assessor in making assessments and performing the duties bestowed upon the assessor under the law, neither does it affect the tax collector in any way, except that the treasurer is made the collector of the taxes, and the statutes in existence at the time the amendment was adopted governing the various officers and their duties can be applied to the duties under the amendment, and are just the same after the adoption of the amendment as before adoption.

This being true, it would seem that the amendment to sec. 6, art. 18 of the constitution is self-operative; in other words, it supplies the rule or means by which the right given may be enforced and protected, and provides for performing the duty conferred by the amendment.

In 8th Cyc., p. 753, the author in discussing self-executing provisions, announces the following general rule: "A self-executing provision, then, is one which supplies the rule or means by which the right given may be enforced or protected or by which a duty enjoined may be performed." Also: "The question in such cases is always one of intention, and to determine the intent the general rule is that courts will consider the language used, the objects to be accomplished by the provision, and the surrounding circumstances, and to determine these questions from which the intention is to be gathered the court will resort to extrinsic matters when this is necessary." Many authorities are cited by the author.

At p. 743 of 8th Cyc., the author says: "The time when a constitution takes effect is of importance and often becomes material in the course of litigation. The manifest intent of the framers of the instrument, to be gathered from the instrument itself, controls in the determination of such questions. . . . Provisions are always made designating the time when constitutional amendments or new constitutions shall take effect."

The legislature passed an act which was approved on March 11 1913, amending sec. 1991 of the Rev. Codes, wherein the section was re-enacted with the addition of paragraph 7 in the following language: "The county treasurer is hereby made ex-officio tax collector, and all powers and duties heretofore exercised by the ex-officio tax collector, under the laws of this state, as distinguished from the assessor, are hereby transferred and made a part of the powers and duties of the county treasurer." This addition to sec. 1991 is simply a declaration of the legislature for the performance of a duty which the amendment itself provides for, and adds nothing whatever to the amendment, and provides no rules or means other than the amendment itself provides for, with reference to the transfer of the ex-officio duties of tax collector from assessor to county treasurer. It...