Gillesby v. Board of Com'rs of Canyon County

• Decision Date: 25 January 1910
• Citation: 107 P. 71,17 Idaho 586
• Parties: THOMAS GILLESBY, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF CANYON COUNTY, Respondent
• Court: Idaho Supreme Court

107 P. 71

17 Idaho 586

THOMAS GILLESBY, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF CANYON COUNTY, Respondent

Supreme Court of Idaho

January 25, 1910

ELECTIONS-REGISTRATION-GENERAL ELECTION LAW-STATUTES-CONSTRUCTION-LOCAL OPTION-POLICE POWER-CONSTITUTIONAL LAW-ACTS VOID IN PART.

1. Sec 2, art. 6, of the constitution of this state, commits the subject of registration of voters entirely to the legislature, and fully authorizes the legislature to enact such registration law as it deems wise; provided, of course such law in no way contravenes any constitutional right of the elector.

2. The object and purpose of a registration law is to provide means for ascertaining and determining in a uniform mode whether a voter possesses the necessary qualifications to permit him to exercise the elective franchise, under the constitution and laws of the state.

3. Under the provisions of sec. 9 of the local option statute all persons who registered for the last preceding general election are declared to be properly registered for an election held under the statute, and such electors are not required to re-register in order to vote at a special election held under the local option statute; and all persons not so registered may register for the special election according to the statute relating to registration.

4. Applying the general election law of the state, the registrars are required to give the notice provided to be given by sec. 396 of [17 Idaho 587] the Rev. Codes; and under this section the days upon which the registrars will hear applications for registration are left to the discretion of the registrar except in so far as such days are fixed by the provisions of sec. 394 of the Rev. Codes.

5. Where the legislature has provided certain and fixed days upon which registration may be had for a special election under the local option statute, the fact that the statute also authorizes the registrars of the different precincts to fix other and additional days does not render such statute indefinite or uncertain or local or special legislation.

6. Under the provisions of sec. 394, each Saturday, after the notice of the registrar is given, up to and including the Saturday next preceding the election, is fixed as a day certain upon which the registrar shall receive applications for registration, and upon this day the registrar is required to receive applications for registration and it should be one of the days designated by the registrar in the notice.

7. Held, that the act approved Feb. 20, 1909 (Laws of 1909, p 9), known as the local option law, is not void or unconstitutional for uncertainty and ambiguity in not providing, first, the period for the registration of voters at such election; second, in failing to fix the time when registrars must register voters; third, in failing to fix the time when registrars shall begin or cease to register voters; fourth, in failing to point out to the voters when they may register; and fifth, in failing to provide any procedure for registration.

8. Knight v. Trigg, 16 Idaho 256, 100 P. 1060, considered and distinguished.

9. Where one statute refers to another and makes the same a part of the former in so far as the same is applicable, in determining what provisions are applicable the court is called upon to construe into the former as a part thereof only such provisions of the latter as are applicable and will give force and effect to the former statute. This is merely determining what provisions of the general statute the legislature has made a part of the special statute, and is judicial construction and not judicial legislation.

10. The local option statute contains the provision, "in all matters and proceedings not herein otherwise specified, all the provisions,.... of the general election laws of the state shall apply and be observed, as far as the same are applicable," and thus adopts and makes a part of such statute only such provisions of the general election law as are applicable, and does not render such statute uncertain or indefinite by reason of the fact that all of the provisions of the general election law cannot be made applicable to an election held under the local option statute.

11. By construing into the local option statute such provisions of the general election law as are applicable, registration begins after the notice of election has been posted, at such time as the registrar may determine, and when no earlier time is fixed, on the first Saturday after such notice is given; and the registration continues from the time it commences up until and including the Saturday next preceding the time of holding such election; and registration may be had upon such days and at such times as are fixed by the registrar, and upon the Saturday fixed by the law, and on any other day except holidays during said time of registration when application is made at the place of registration, and the registration ends on the Saturday next preceding the holding of such election, and is to be made in the manner governing registration for general elections.

12. Under the constitution of this state, no person has any vested right to engage in the sale of intoxicating liquor, and the regulation, control or prohibition of the same is a proper exercise of the police power of the state; and in the exercise of such power the legislature may enact a statute licensing, regulating, or prohibiting such sale and disposition.

13. The purpose and object of the local option statute was to give the electors of each county an opportunity of expressing their will with reference to the sale and disposition of intoxicating liquors as a beverage, and the different sections of the statute governing its enforcement and the method of carrying out the will of the people are independent and separate provisions, and in no way govern or control the method provided by the legislature of submitting such question for determination by the electors of the respective counties.

14. This court will not declare the whole statute void unless all of the provisions are connected in subject matter, dependent on each other, were designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other.

15. This court will not hold an entire act void or unconstitutional by reason of the fact that a section may be unconstitutional and void, where the latter is distinct and separable from the remaining provisions of the act and could be omitted and leave the act complete within itself and capable of being carried into effect, so as to accomplish the object of the law as intended by the legislature.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed L. Bryan, Judge.

The county commissioners of Canyon county ordered an election to be held under the local option statute. Appellant here appealed from such order to the district court where the order was affirmed, and appellant appeals to this court. Judgment affirmed.

Judgment affirmed. Costs awarded to respondent.

D. C. McDougall, Attorney-General, J. H. Peterson, Assistant Attorney General, John F. McLane, and O. M. Van Duyn, County Attorney of Canyon County, for Respondent.

Sec. 10 of the local option law provides that the provisions of the general election law shall only be followed so far as the same are applicable. If, therefore, the general election law can be made applicable to the local option law so as to promote the purpose of its enactment under a liberal construction, it is sufficient and will stand.

A law may be general, and have but a local application, and it is none the less general and uniform because it may apply to a designated class, if it operates equally upon all the subjects within the class for which the rule is adopted. In determining whether a law is general or special, the court will look to its substance and necessary operation as well as its form and phraseology. (Ladd v. Holmes, 40 Ore. 167, 91 Am. St. 457, 66 P. 714; 7 Words and Phrases Judicially Defined, 6578, 6579; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; People v. Wright, 70 Ill. 388; People v. Hoffman, 116 Ill. 587, 56 Am. Rep. 793, 5 N.E. 596, 8 N.E. 788; Paul v. Gloucester Co., 50 N.J.L. 585, 15 A. 272, 1 L. R. A. 86; Noonan v. County of Hudson, 52 N.J.L. 398, 20 A. 255; Groesch v. State, 42 Ind. 547; Dalby v. Wolf, 14 Iowa 228; Fell v. State, 42 Md. 71, 20 Am. Rep. 83; State v. Wilcox, 42 Conn. 364, 19 Am. Rep. 536; Commonwealth v. Dean, 110 Mass. 357; State v. Cooke, 24 Minn. 247, 31 Am. Rep. 344.)

The state has the power under its police power to absolutely prohibit the sale of intoxicating liquors within its borders. (License Cases, 5 How, 504, 12 L. ed. 256; Bartemeyer v. Iowa 18 Wall. 129, 21 L. ed. 929; Boston Beer Co. v. Massachusetts, 97 U.S. 25, 24 L. ed. 989; Foster v. Kansas, 112 U.S. 201, 5 S.Ct. 8, 97, 28 L. ed. 629; Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L. ed. 205.)

The whole statute is not void unless all the provisions are connected in such matter, depend on each other, were designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other. (1 Sutherland Stat. Const. 576.)

"A law affecting all alike who are in the same class is not class or special legislation." (Boise L. & I. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321; Brooks v. Hyde, 37 Cal. 366; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L. ed. 923; Hawkins v. Roberts, 122 Ala. 130, 27 So. 327.)

A licensee takes his permit subject to the contingency that there may be...