Clemens v. Pinehurst Water Dist.

• Decision Date: 18 May 1959
• Docket Number: No. 8765,8765
• Citation: 339 P.2d 665,81 Idaho 213
• Parties: Thomas CLEMENS, Plaintiff-Respondent, v. PINEHURST WATER DISTRICT, a Municipal Corporation of the State of Idaho, Walter J. Morbeck, Albert Meacham, Daniel Fultz, Ivan Green, Milton Cowles, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 665

339 P.2d 665

81 Idaho 213

Thomas CLEMENS, Plaintiff-Respondent, v. PINEHURST WATER DISTRICT, a Municipal Corporation of the State of Idaho, Walter J. Morbeck, Albert Meacham, Daniel Fultz, Ivan Green, Milton Cowles, Defendants-Appellants.

No. 8765.

Supreme Court of Idaho.

May 18, 1959.

James G. Towles, Kellogg, for appellant.

James P. Keane, Wallace, for respondent.

James W. Givens, Lewiston, and Burcham & Blair, Spokane, Wash., amici curiae.

SMITH, Justice.

Appellant, Pinehurst Water District, hereinafter referred to as the District, allegedly is a municipal corporation created pursuant to the water and sewer district Act, Idaho Code, Title 42, chapter 32, as it existed prior to the 1957 amendments. The individual appellants allegedly are the directors of the District.

References hereinafter are to said title and chapter, and particularly to I.C. § 42-3207, prior to the 1957 amendments (S.L. '57, ch. 29, and particularly secs. 1 and 2.).

Respondent alleges that he is a resident and recorded owner of real property situate within the boundaries of the District, and that he pays real property taxes which in part contribute to payment of the obligations of Pinehurst Water District.

Respondent commenced this proceeding January 15, 1959, to determine the validity of an election held June 5, 1956, for the purpose of organizing the District, and of the district court's order of June 8, 1956, creating the District; also to enjoin the District from issuing its general obligation negotiable coupon bonds in the amount of $240,000 which it voted November 20, 1956.

The organizational election was held pursuant to the court's order directing that 'the qualified electors and the taxpayers of the District may vote on the question of whether or not said District shall be organized,' pursuant to a then existing portion of I.C. § 42-3207, prohibiting persons, though residents and qualified electors, who are not taxpayers, from voting at the organizational election.

The parties submitted the proceeding at bar to the district court for decision, upon a stipulation of facts. The court's resulting judgment, entered February 4, 1959, dissolved the District and adjudged as void the June 8, 1956 court order creating the District; also enjoined the District's officers from issuing the District's general obligation coupon bonds, or any obligation creating an indebtedness against the District.

The district court grounded its judgment upon the theory, incorporated in its findings and conclusions, that the portion of I.C. § 42-3207 which prohibited residents and qualified electors, who are not taxpayers, from voting at an organizational election, was unconstitutional as being in conflict with Idaho Constitution, Art. I, § 20, which provides:

'No property qualifications shall ever be required for any person to vote or hold office except in school elections, or elections creating indebtedness, or in irrigation district elections, as to which last-named elections the legislature may restrict the voters to land owners.'

and that the referred to portion of I.C. § 42-3207 rendered void all of the water and sewer district Act, being Idaho Code, Title 42, ch. 32.

Appellants perfected an appeal from the judgment and the findings and conclusions upon which it is grounded.

Appellants do not attempt to sustain, but concede, the unconstitutionality of the portion of I.C. § 42-3207 requiring the taxpayer qualification of organizational electors. This Court likewise recognizes the unconstitutionality thereof.

Appellants' assignments of error raise the question whether the provision of I.C. § 42-3207 requiring taxpayer qualification of organizational electors, voids the entire water and sewer district Act.

The legislature intended that the Act be severable, as stated in I.C. § 42-3227, as follows:

'If it should be judicially determined that any part of this act is invalid or unenforceable, such determination shall not affect the remaining parts, it being the intention to make this act and all its parts severable.'

This Court must recognize that expressed legislative intent, if it is possible to do so under any theory.

The power of the legislature to legislate relative to the subject matter, including the organization of districts authorized by the water and sewer district Act, cannot be questioned; nor do appellants urge any lack of such legislative power.

The objectionable portion of I.C. § 42-3207 relating to the taxpayer qualification of electors for organizational purposes, being severable, under such circumstance, the entire Act cannot be held unconstitutional. This Court heretofore has recognized this principle in Bissett v. Pioneer Irrigation Dist., 21 Idaho 98, 102, 120 P. 461, 462, and, in so ruling, stated:

'Now it is clear that section 2379 [Rev.Code] 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, , 119 P. 304, in passing on the act of March 6, 1911. The fact, however, that the statute attempts to require this extra qualification, which is in violation of the constitution (section 20, art. 1), does not avoid or vitiate the entire statute. The unconstitutional portion can be eliminated, and still leave the statute complete and operative. On the other hand, it cannot be reasonably said that this provision or qualification as to the right to vote was the inducement for the passage of this statute, or that the Legislature would not have passed the statute had the unconstitutional provision been eliminated. That an unconstitutional provision or requirement in an election law may be eliminated, and the remainder of the statute be held valid and constitutional, has been held by the Supreme Court of Wisconsin in State ex rel. Cornish v. Tuttle, 53 Wis. 45, 9 N.W. 791. A similar conclusion was reached by the New York court of appeals in People v. Kenney, 96 N.Y. 295. In Browne v. City of Mobile, 122 Ala. 159, 25 So. 223, the Supreme Court of Alabama held that, where a statute required a qualification for the office of city recorder that was contrary to the provisions of the Constitution, the unconstitutional portion of the statute might be eliminated and the remainder of the statute be held valid. A similar view was expressed by the Supreme Court of Indiana on a kindred question in State v. Ray, 153 Ind., 334 54 N.E. 1067, and by the Supreme Court of Vermont in State v. Scampini, 77 Vt. 92, 59 A. 201.'

In Boise City v. Better Homes, 72 Idaho 441, 447, 243 P.2d 303, 306, this Court said:

'Provisions of the statutes governing elections, in the absence of legislative expression to the contrary, are regarded as directory, unless it appears that a failure to comply may affect the result of the election.'

The record of the proceedings organizing appellant District, to and including the district court's order of June 8, 1956 creating it, shows that no person appeared and contested the organizational proceedings; although said Act was fully complied with relative to notice, and opportunity afforded so to do. Moreover, respondent makes no attempt in the proceeding at bar to show that any organizational elector's vote was challenged for lack of qualification, or otherwise; or to show that the result of the organizational election of appellant District would have been different, had the mandate of Idaho Constitution, Art. I, § 20, relative to qualification of electors, been observed.

It is elementary that the unconstitutional portion of I.C. § 42-3207 cannot be considered, because of invalidity, as a portion of the water and sewer district Act; also, that the requirement of the Constitution relative to qualification of electors, Idaho Const. Art. VI, § 2, must be read into and be construed a part of the Act.

We therefore must hold that the portion of I.C. § 42-3207 relative to taxpayer qualification of electors at an organizational election of a water and sewer district does not invalidate the entire water and sewer district Act, Idaho Code, Title 42, ch. 32, but that such objectionable provision of the statute is separable from said Act.

Appellants' assignments of error raise a second and last question, whether the district court's order of June 8, 1956, declaring appellant District organized, is subject to collateral attack in the present proceeding.

I.C. § 42-3207 further provides:

'If an order be entered establishing the district, such order shall be deemed final and no appeal or writ of error shall lie therefrom, and the entry of such order shall finally and conclusively establish the regular organization of the said district against all persons except the state of Idaho, in an action in the nature of a writ of quo warranto, commenced by the attorney-general within thirty days after said decree declaring such district organized as herein provided, and not otherwise. The organization of said district shall not be directly or collaterally questioned in any suit, action or proceeding except as herein expressly authorized.'

Appellants assert that appellant District is a de facto public corporation and that its acts and those of its directors in voting said bond issue, are valid and binding; that the authority exercised by the District pursuant to its charter, granted under and by virtue of the water and sewer district Act, must be accorded validity; that the question of the validity of the District as a public or municipal corporation could have been raised only by 'the state of Idaho, in an action in the nature of a writ of quo warranto, commenced by the attorney-general within thirty days after said decree declaring such district organized * * *, and not otherwise,' and that the question of invalidity of the District cannot be raised in the proceeding at bar, admittedly a...