Eberle v. Nielson

• Decision Date: 13 February 1957
• Docket Number: No. 8541,8541
• Citation: 78 Idaho 572,306 P.2d 1083
• Parties: W. D. EBERLE, State Representative from Ada County; Robert Doolittle, State Representative from Bonner County; Vernon Daniel, State Senator from Payette County; and R. M. Wetherell, State Senator from Elmore County; all of the 34th Session of the Legislature of the State of Idaho, suing on behalf of themselves and of other persons similarly situated and interested in the subject of this suit, Plaintiffs, v. N. P. NIELSON, State Auditor of the State of Idaho, Defendant.
• Court: Idaho Supreme Court

Page 1083

306 P.2d 1083

78 Idaho 572

W. D. EBERLE, State Representative from Ada County; Robert Doolittle, State Representative from Bonner County; Vernon Daniel, State Senator from Payette County; and R. M. Wetherell, State Senator from Elmore County; all of the 34th Session of the Legislature of the State of Idaho, suing on behalf of themselves and of other persons similarly situated and interested in the subject of this suit, Plaintiffs, v. N. P. NIELSON, State Auditor of the State of Idaho, Defendant.

No. 8541.

Supreme Court of Idaho.

Feb. 13, 1957.

Raymond D. Givens, Willis C. Moffatt, Boise, George Donart, Weiser, for appellants.

Graydon W. Smith, Atty. Gen., Edward J. Aschenbrener, William C. Roden, Asst. Attys. Gen., for respondent.

TAYLOR, Justice.

The petitioners, W. D. Eberle, Representative from Ada County, Robert Doolittle, Representative from Bonner County, Vernon Daniel, Senator from Payette County, R. M. Wetherell, Senator from Elmore County, as such members of the current Thirty-fourth Session of the State Legislature, on behalf of themselves and others similarly situated, filed petition in this Court seeking a writ of mandate to compel issuance of warrants by the defendant, State Auditor, for payment of expenses incurred by them while serving as members of various committees of the legislature. They allege that funds were regularly appropriated for the payment of such expenses; that vouchers were regularly prepared and approved by the presiding officer of the respective houses, and were presented to and approved by the State Board of Examiners; and that the defendant had refused to draw warrants for the payment thereof on the ground that payment of such claims was not authorized by law.

Defendant, answering the petition, admits all of the allegations therein, and affirmatively alleges that § 67-412, I.C., purporting to authorize payment of such expenses, is in violation of Article 3, § 23, of the State Constitution. Section 67-412, I.C., enacted in 1951, is as follows:

'Each member of the legislature of the State of Idaho shall receive the sum of $5.00 per day as committee expenses while serving as a member of any committee during any session of the legislature, including the present thirty-first session of said legislature; and provided that no member shall receive such expense for service on more than one committee at the same time.'

The pertinent part of § 23, Article 3, of the Constitution provides:

'Each member of the legislature shall receive for his services a sum of ten dollars per day from the commencement of the session; but such pay shall not exceed for each member, except the presiding officers, in the aggregate, $600 for per diem allowances for any one session; and shall receive each the sum of ten cents per mile each way by the usual traveled route.'

In determining the constitutionality of a legislative enactment, fundamental principles must ever be kept in mind and rigidly observed. Statutes are presumed valid and all reasonable doubts as to constitutionality must be resolved in favor of validity. Noble v. Bragaw, 12 Idaho 265, 85 P. 903; Ingard v. Barker, 27 Idaho 124, 147 P. 293; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; Sanderson v. Salmon River Canal Co., Ltd., 45 Idaho 244, 263 P. 32; Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L.R. 317; In re Edwards, 45 Idaho 676, 266 P. 665; Chambers v. McCollum, 47 Idaho 74, 272 P. 707; City of Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245; State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; State v. Peterson, 61 Idaho 50, 97 P.2d 603; Big Wood Canal Co. v. Unemployment Comp. Div. of Ind. Acc. Bd., 63 Idaho 785, 126 P.2d 15; State v. Groseclose, 67 Idaho 71, 171 P.2d 863; Boughten v. Price, 70 Idaho 243, 215 P.2d 286; Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154.

Where a statute is susceptible of two constructions, one of which would render it invalid and the other would render it valid, the construction which sustains the statute must be adopted by the courts. Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112; State v. Morris, 28 Idaho 599, 155 P. 296, L.R.A.1916D, 573; City of Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245; State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; State v. Peterson, 61 Idaho 50, 97 P.2d 603; Big Wood Canal Co. v. Unemp. Comp. Div. of Ind. Acc. Bd., 63 Idaho 785, 126 P.2d 15.

The burden of showing unconstitutionality of a statute is upon the party who asserts it, and invalidity must be clearly shown. Noble v. Bragaw, 12 Idaho 265, 85 P. 903; Gillesby v. Board of Com'rs, 17 Idaho 586, 107 P. 71; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; In re Edwards, 45 Idaho 676, 266 P. 665; Williams v. Baldridge, 48 Idaho 618, 284 P. 203; State ex rel. Macey v. Johnson, 50 Idaho 363, 296 P. 588; Curtis v. Pfost, 53 Idaho 1, 21 P.2d 73; Bannock County v. Citizens Bank & Trust Co., 53 Idaho 159, 22 P.2d 674; Boughten v. Price, 70 Idaho 243, 215 P.2d 286; Common School Dist. #2 v. District #1, 71 Idaho 192, 227 P.2d 947; Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154.

It is the duty of the courts to uphold the constitutionality of legislative enactments when that can be done by reasonable construction. Scandrett v. Shoshone Co., 63 Idaho 46, 116 P.2d 225; State ex rel. Wright v. Headrick, 65 Idaho 148, 139 P.2d 761; State v. Evans, 73 Idaho 50, 245 P.2d 788; Grice v. Clearwater Timber Co., 20 Idaho 70, 117 P. 112; Continental Life Ins. & Inv. Co. v. Hattabaugh, 21 Idaho 285, 121 P. 81; State v. Morris, 28 Idaho 599, 155 P. 296, L.R.A.1916D, 573; J. C. Penney Co. v. Diefendorf, 54 Idaho 374, 32 P.2d 784; Safeway Stores, Inc., v. Diefendorf, 54 Idaho 407, 32 P.2d 798; Garrett Transfer & Storage Co. v. Pfost, 54 Idaho 576, 33 P.2d 743.

In construing our State Constitution there are also certain fundamental principles which must be recognized and given effect. Unlike the Federal Constitution, the State Constitution is a limitation, not a grant, of power. We look to the State Constitution, not to determine what the legislature may do, but to determine what it may not do. If an act of the legislature is not forbidden by the state or federal constitutions, it must be held valid.

This fundamental concept of the State Constitution is generally accepted throughout the United States, and is not questioned in these proceedings. It has always been the guiding principle of constitutional construction in this state. Some of the decisions of this Court, recognizing and applying it, are collected in the foot note. ¹

There flows from this fundamental concept, as a matter of logic in its application, the inescapable conclusion that the rule of expressio unius est exclusio alterius has no application to the provisions of our State Constitution.

'Express enumeration of legislative powers is not exclusive of others not named unless accompanied by negative terms.' MacMillan Co. v. Clarke, 184 Cal. 491, 194 P. 1030, at page 1033, 17 A.L.R. 288.

'It is, of course, elementary law that, unlike the federal constitution, the state constitution is not a grant of power to the legislature but rather a limitation upon the powers of that body. An express enumeration of legislative powers is not exclusive of others not named, unless accompanied by negative terms.' Slavich v. Walsh, 82 Cal.App.2d 228, 186 P.2d 35, at page 39.

'* * * the respondent contends that under the doctrine of expressio unius est exclusio alterius, since the Constitution specifies two items which may be allowed, any other allowances are invalid. This argument overlooks the fact that our Constitution is not a grant of power but rather a limitation or restriction upon the powers of the Legislature'. (Citations.) Collins v. Riley, 24 Cal.2d 912, 152 P.2d 169, at page 171.

This rule was again approved and quoted by the Supreme Court of California in Dean v. Kuchel, 37 Cal.2d 97, 230 P.2d 811.

This Court has also heretofore refused to apply the rule of expressio unius est exclusio alterius to the revenue provisions of the Constitution, as follows:

'Certainly our Constitution does not expressly prohibit the people of Idaho from raising revenue in the manner provided in chapter 179 of the Session Laws of 1913, and, while it is true there are three methods of raising revenue expressed in section 2 of article 7 of the Constitution, we cannot infer from this that an implication arises prohibiting the state from also raising revenue pursuant to its inherent power to do so in any other manner its Legislature may see fit to adopt.' In re Kessler, 26 Idaho 764, 771, 146 P. 113, 114, L.R.A.1915D, 322.

'The tax in question is by a method other than those mentioned in section 2, art. 7, of the Constitution, but is not on that account unconstitutional, because it is not necessary that the Constitution expressly authorize the Legislature to enact each every kind of tax adopted by it. An act is legal when the Constitution contains no prohibition against it.' Independent School Dist. v. Pfost, 51 Idaho 240, 252, 4 P.2d 893, 897.

The rule was again urged upon the court in Difendorf v. Gallet, 51 Idaho 619, 10 P.2d 307. After quoting the above paragraphs from In re Kessler and Independent School Dist. v. Pfost, Mr. Justice Leeper, speaking for the court, said:

'We do not feel called upon to re-examine this question, in view of the absence of any substantial authority otherwise. It is a fundamental rule of constitutional law that a state Constitution is an instrument of limitation and not of grant, that all powers are retained to the state not expressly withheld, and the decisions in this state are bottomed squarely upon that rule.' Diefendorf v. Gallet, 51 Idaho 619, 637, 10 P.2d 307, 314.

See also: State ex rel. Todd v. Yelle, 7 Wash.2d 443, 110 P.2d 162; Myers v. Oklahoma Tax Commission, Okl. 303 P.2d 443.

Applying the foregoing rules and principles to the case before us, we find no limitation in § 23,...