Hays v. Hays

• Decision Date: 28 January 1897
• Citation: 5 Idaho 154,47 P. 732
• Parties: HAYS v. HAYS
• Court: Idaho Supreme Court

47 P. 732

5 Idaho 154

HAYS v. HAYS

Supreme Court of Idaho

January 28, 1897

CONSTITUTIONAL LAW.-A substantial compliance with the provisions of sections 1 and 2, article 20, of the constitution of Idaho, in the matter of proposing amendments to the constitution, and submitting them to the people for ratification, is sufficient.

AMENDMENTS TO CONSTITUTION, How PROPOSED.-Under the provisions of section 1, article 20, of the constitution, amendments may be proposed by the legislature by joint resolution.

SAME-LEGISLATURE NOT GOVERNED BY SECTION 15, ARTICLE 3.-The power of the legislature to propose amendments to the constitution is not governed by the provisions of section 15, article 3, of the constitution.

TITLE OF RESOLUTION.-It is not essential that the subject of a proposed amendment shall be expressed in the title.

SAME.-It is sufficient if such joint resolution clearly designates the section and article of the constitution to be amended.

WHEN AMENDMENT GOES INTO EFFECT.-The amendment to section 18 article 5, of the state constitution, creating the office of prosecuting attorney, does not go into full operation until the close of the term of office for which district attorneys were elected at the general election of 1894.

AMENDMENT NOT SELF-EXECUTING.-Said amendment is not self-executing. It requires legislation to prescribe the duties of the prosecuting attorney; the board of county commissioners to fix his compensation; and the qualified electors to elect such officer at the next general election.

WHEN OFFICERS TAKE POSSESSION OF THEIR OFFICES.-The law prescribes the date on which the county officers so elected shall take possession of their offices, and that is the date said amendment goes into full operation.

WHEN AMENDMENT BECOMES OPERATIVE, How DETERMINED.-In determining the time at which a constitutional amendment becomes fully operative, the intention of the people adopting it should be ascertained. This should be done from the context of the amendment, and, in case of doubt, the court should also consider the existing conditions, and the results which would follow, if the amendment was held to have become immediately operative.

(Syllabus by the court.)

Original proceeding in supreme court by writ of mandate.

Demurrer and motion sustained, and writ denied; and ordered.

Henry Z. Johnson, for Plaintiff.

Did the resolution pass the legislature in the manner provided by the constitution? Was it passed in a constitutional way? Neither the law or the constitution requires that it be passed as a bill; therefore it need not be printed, or read on three several days. (Nesbit v. People, 19 Colo. 441, 36 P 223; State v. Dahl, 6 N. Dak. 81, 68 N.W. 418; Julius v. Callshan, 63 Minn. 154, 65 N.W. 267.) The amendment was sufficiently entered on the journals. (Oakland Pav. Co. v. Tompkins, 72 Cal. 5, 1 Am. St. Rep. 17, and note, 12 P. 801; Worman v. Hagan, 78 Md. 152, 27 A. 616; Prohibitory Amendment Cases, 24 Kan. 710; cited with approval in Senate File 31, 25 Neb. 864, 41 N.W. 987, 988.) But on the point of the regularity of the passage of the joint resolution the enrolled resolution deposited in the office of the Secretary of State is conclusive as to the regularity of all prior proceedings. (Fields v. Clark, 143 U.S. 649, 12 S.Ct. 495; State v. Jones, 6 Wash. 452, 34 P. 201, and cases cited.) The amendment takes effect at once. It completely eliminates the section relating to district attorneys and leaves no authority for their existence whatever. (Cooley's Constitutional Limitations, 5th ed., 75.) Public officers have no proprietary interest in public offices or any right of property in the prospective compensation attached thereto. (State v. Frizzell, 31 Minn. 460, 18 N.W. 319; Crenshaw v. United States, 134 U.S. 99, 10 S.Ct. 431; State v. Harris, 1 N. Dak. 190, 45 N.W. 1101; Jones v. Shaw, 15 Tex. 577.)

Hawley & Puckett and John A. Bagley, for Defendant.

Was the resolution passed in a constitutional way? We urged that it was not, for reasons shown in the record herein filed, as follows: 1. The act was presented as a joint resolution and not as a bill; 2. That neither the act itself or the amendments thereto were printed; 3. It was not read on three several days in the Senate prior to the final vote thereon; 4. The motion to suspend the constitution and the rules of the Senate was not voted upon by a yea and nay vote; 5. The amendment was not entered upon the journal of either the Senate or the House; 6. The act as amended did not pass the Senate. Section 15 of article 3, and section 1 of article 20 make it necessary to comply with the above requirements. And these requirements of the constitution are mandatory. (Cooley's Constitutional Limitations, secs. 88-98, 169, 180.) A joint resolution, in legislative parlance, is to all intents and purposes a "bill" and in all respects is governed by the same rules as bills. (Const., art. 3; Smith's Digest of Rules and Practice, 379; Barclay's Manual, 112; U.S. Const., art. 1, sec. 7; Ex parte Liddell, 93 Cal. 633, 29 P. 251.) In every other joint resolution in reference to amendments passed by our legislature, the subject matter of the resolution has been expressed in the title. (3d Sess. Laws, 232, 237; 2d Sess. Laws, 224; 1st Sess. Laws, 243; Ex parte Liddell, 93 Cal. 633, 29 P. 251.) A constitutional amendment does not become operative upon the casting in its favor of the necessary majority of votes, but only after the due promulgation of the result. (3 Am. & Eng. Ency. of Law, 672; Sewall v. State, 15 Tex. App. 56; State v. Morgan City, 32 La. Ann. 81; People v. Norton, 59 Barb. 169; Real v. People, 42 N.Y. 270.) A state constitution can only be changed or amended in the mode prescribed by the instrument itself, and every requisition of the constitution in regard thereto must be complied with. (3 Am. & Eng. Ency. of Law, 672; Collier v. Frierson, 24 Ala. 100; Opinion of Judges, 6 Cush. 573; In re Constitutional Con., 14 R. I. 649; State v. Timme, 54 Wis. 318, 11 N.W. 785.) It is a settled principle of law that the incumbent of an office fixed by the constitution, and the term of which is fixed by the constitution, cannot be deprived of his office except by the expiration of his term, or by some other reason pointed out by the constitution itself. (People v. Dubois, 23 Ill. 498; Commonwealth v. Gamble, 62 Pa. St. 343, 1 Am. Rep. 422; People v. Bangs, 24 Ill. 84; King v. Hunter, 56 N.C. 603; State v. Brunst, 26 Wis. 412, 7 Am. Rep. 84.) Where legislation is necessary to give effect to a constitutional provision, laws that were in existence at the time the new constitution was adopted remain the law until legislation is had to enforce the provisions of the new constitution. (3 Am. & Eng. Ency. of Law, 671, 672, note 5; Supervisors v. Stout, 9 W.Va. 703; Indiana Co. v. Agricultural Soc., 85 Pa. St. 357; Marshall v. Sherman, 148 N.Y. 9, 51 Am. St. Rep. 654, 42 N.E. 419; Ewing v. Orvit Min. Co., 56 Cal. 649; Supplement, 3 Gray, 681; State v. Scott, 9 Ark. 270; State v. Ewing, 17 Mo. 515; State v. Timme, 54 Wis. 318, 11 N.W. 785; Lehigh Co. v. Township, 81 Pa. St. 482; Gas Co. v. County, 97 Pa. St. 476; County of Erie v. City of Erie, 113 Pa. St. 360, 6 A. 136; Norman v. Cain, 17 Ky. Law Rep. 492, 31 S.W. 860.) A constitutional provision is not self-executing when such provision, in express language, requires or commands legislation to give it force and effect. (Cook Co. v. Industrial School, 8 Am. St. Rep. 415, note; Public School v. Patten, 62 Mo. 444; Ex parte Wall, 48 Cal. 279, 17 Am. Rep. 425; Norman v. Cain, 171 Ky. Law Rep. 492, 31 S.W. 860; People v. Osborne, 7 Colo. 605, 4 P. 1074; Board etc. v. Perkins, 5 Wyo. 166, 38 P. 915.)

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an application for a writ of mandate to compel the defendant, Charles M. Hays, to deliver to the plaintiff certain records belonging to the office of district attorney of the third judicial district, and to compel the admission of plaintiff to the use and enjoyment of the office of prosecuting attorney for Ada county. The facts on which the application is based are substantially as follows: Under the provisions of section 1, article 20, of the constitution of Idaho the legislature, at its regular 1895 session, submitted a constitutional amendment to the electors of the state, to be voted on at the general election held in November, 1896. Said amendment was designated as "Senate Joint Resolution No. 5," and is as follows:

"Be it resolved by the legislature of the state of Idaho:

"Section 1. That section 18 of article 5 of the constitution of the state of Idaho be amended to read as follows: 'Sec. 18. A prosecuting attorney shall be elected for each organized county in the state, by the qualified electors of such county, and shall hold office for the term of two years, and shall perform such duties as may be prescribed by law. He shall be a practicing attorney at law, and a resident and elector of the county for which he is elected. He shall receive as compensation for his services a sum not less than $ 500 per annum nor more than $ 1,500 per annum, to be fixed by the board of commissioners of the county at its regular session in July next preceding any general election, and to be paid in quarterly installments out of the county treasury.'

"Sec. 2. The question to be submitted to the electors of the state at the next general election, shall be in form as follows: 'Shall section 18 of article 5 of the constitution of the state of Idaho be so amended as to abolish the office of district attorney, and create the office of county attorney?'

"Passed the Senate January 29, 1895. Passed the House February 27, 1895. Approved March 5, 1895."

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