Haile v. Foote

• Decision Date: 31 December 1965
• Docket Number: No. 9759,9759
• Citation: 409 P.2d 409,90 Idaho 261
• Parties: Dale G. HAILE, Sheriff of Canyon County, Idaho, Plaintiff, v. Sam S. FOOTE, Clerk of the District Court and Ex-Officio Auditor and Recorder, Canyon County, State of Idaho, Defendant.
• Court: Idaho Supreme Court

Page 409

409 P.2d 409

90 Idaho 261

Dale G. HAILE, Sheriff of Canyon County, Idaho, Plaintiff, v. Sam S. FOOTE, Clerk of the District Court and Ex-Officio Auditor and Recorder, Canyon County, State of Idaho, Defendant.

No. 9759.

Supreme Court of Idaho.

Dec. 31, 1965.

Givens, Doane, Givens & Manweiler, Boise, for appellant.

Earl E. Reed, Nampa, for respondent.

KNUDSON, Justice.

This is an original proceeding in this court brought by Dale G. Haile as Sheriff of Canyon County, Idaho, seeking a writ of prohibition and judgment holding that the term of office of incumbent sheriffs in all counties in this state is four years commencing the second Monday in January, 1965.

Prior to the general election held November 3, 1964, the pertinent portion of Article 18 Section 6 of the Constitution of the State of Idaho (hereinafter referred to as the 'constitution') provided as follows:

'Section 6. COUNTY OFFICERS.--The legislature by general and uniform laws shall, commencing with the general election in 1962, provide for the election biennially, in each of the several counties of the state, of county commissioners, a sheriff, a county treasurer, who is ex-officio public administrator, a probate judge, until otherwise provided by the legislature, a county assessor and a coroner.'

During the Thirty-seventh Session of the State Legislature in 1963, a joint resolution identified as Senate Joint Resolution No. 6, proposing an amendment to said section 6 of the constitution, was regularly passed, the pertinent portion of said proposed amendment being as follows:

'Section 6. COUNTY OFFICERS.--The legislature by general and uniform laws shall, commencing with the general election in 1964, provide for the election biennially, in each of the several counties of the state, of county commissioners, a county treasurer, who is ex-officio public administrator, a probate judge, until otherwise provided by the legislature, a county assessor and a coroner and for the election of a sheriff every four years in each of the several counties of the state.'

(In the foregoing copy the portions proposed to be stricken are indicated by cross-outs and the proposed additions are indicated by underlining.)

Plaintiff Dale G. Haile was elected Sheriff of Canyon County at the general election held November 3, 1964, as were sheriffs in each of the other counties of this state. The terms of said sheriffs were to begin on the second Monday in January 1965.

At the same election the foregoing mentioned amendment was ratified by the electors of this state.

By petition filed September 29, 1965, plaintiff commenced this proceeding and on September 30, 1965 this court issued its alternative writ of prohibition directing defendant Sam S. Foote to show cause why he should not be absolutely restrained from accepting any filings for the primary and general elections in 1966 for the office of sheriff in Canyon County, Idaho.

Defendant has filed his motion to dismiss plaintiff's petition alleging, inter alia, insufficiency of the petition; that the petition is premature and that the petition properly should have been filed with the district court. After considering defendant's motion we find that the verified petition is in compliance with the requirements of Rule 49 of this court and that the petition is not premature. Since this court has original jurisdiction to issue the writ sought herein, there is no merit to defendant's objection to the jurisdiction of this court. (See article 5 section 9 of the Constitution of the State of Idaho.) The motion to dismiss is denied.

The principal question presented is whether the amendment of article 18 section 6 of the constitution which was approved and adopted by the voters of the state at the general election held November 3, 1964 changed the term of office of sheriff from two to four years commencing with the second Monday in January 1965.

Plaintiff contends that the amendment is self-executing and that no action on the part of the legislature is necessary to make it effective. Defendant contends that the amendment is merely an enabling act granting to the legislature the authority to change the term. Defendant argues that I.C. § 34-202, which provides that sheriffs shall be elected every two years, must be amended by the legislature in order to accomplish a change of the term and since this was not done during the 1965 session the change to a four-year term cannot be effective as to the term which commences in January 1965.

A basic guide or rule in determining whether a constitutional provision should be construed to be self-executing has been stated by the United States Supreme Court in Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 212, 45 L.Ed. 249 (1900), in substance as follows:

'A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law. * * * where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme Law, and is full authority for all that is done in pursuance of its provision. In short, if complete in itself, it executes itself.'

A constitution is usually regarded as a declaration of the fundamental law and it is entirely within the power of those who adopt it or amend it to make its provisions self-executing. Whether a particular constitutional provision is self-executing is determined from the language used in the instrument itself and the purpose intended to be carried out.

It is contended the directive in the amendment that '[t]he legislature by general and uniform laws shall * * * provide for the election * * *' indicates that future legislation is required to effectuate the amendment. With this contention we do not agree. Article 18 section 6 of our constitution has been amended seven times and at the beginning of each of such amendments the identical language has been used. In 1912 the legislature by Senate Joint Resolution No. 1 proposed an amendment whereby the duties of tax collector were to be transferred from the county assessor to the county treasurer. The amendment was approved and adopted by the voters of the state on November 5, 1912. The legislature passed an act which was approved March 11, 1913 amending section 1991 of the Revised Codes making the change prescribed by the constitutional amendment. The issue as to whether the amendment was self-operative was presented to this court in Cleary v. Kincaid, 23 Idaho 789, 131 P. 1117, wherein it is stated:

'This addition to section 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 amounts to, and is in fact an approval of the amendment. The amendment, having provided that the county treasurer become tax collector, was sufficient of itself to make the county treasurer ex-officio tax collector, and upon the adoption of the amendment by the voters of the state at the general election November 5, 1912, the duties of tax collector, as defined by law, were transferred from the assessor to the county treasurer, and legislation on the subject was not required, as such intent appears from the amendment itself and controls the determination of such question.'

The court also quoted with approval that

"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 a right given or the enforcement of a duty imposed."

Cooley, in his work on Constitutional Limitations, 8 ed., Vol. 1, p. 170, states:

'A constitutional provision does not lose its self-executing quality merely because it provides that the legislature shall by appropriate legislation provide for carrying it into effect; and the mere fact that legislation might supplement and add to or prescribe a penalty for the violation of a self-executing provision does not render such provision ineffective in the absence of such legislation.'

In the recent case of Gray v. Bryant (Fla., 1960), 125 So.2d 846, Section 6(2) Article V of the Florida Constitution as amended was under consideration, reading

"The legislature shall provide for one circuit judge in each circuit for each fifty thousand inhabitants or major fraction thereof according to the last census authorized by law. In circuits having more than one judge the legislature may designate the place of residence of any such additional judge or judges." (emphasis supplied)

In construing said section the court stated the general tests and concluded:

'Unquestionably Section 6(2), Article V lays down a sufficient rule by which the number of circuit judges which the people have dictated shall be furnished to them may be readily determined without enabling action of the legislature.

* * *

* * *

'It seems clear to us that the subject provision meets the test and should be construed to be self-executing and as not requiring legislative action to activate the effect of its provisions as to number of judges.'

In State ex rel. O'Connell v. Duncan, 108 Mont. 141 (1939), 88 P.2d 73, the court considered a question and facts very similar to those involved in the case at bar. The petitioner was re-elected Sheriff of Lewis and Clark County at a general election held November 8, 1938. The legislative assembly had provided by Chapter 93 of its 1937 Session Laws that the question as to whether the state constitution should be amended to change the term of...