Holmberg v. Jones

• Decision Date: 14 June 1901
• Citation: 65 P. 563,7 Idaho 752
• Parties: HOLMBERG v. JONES, STATE AUDITOR
• Court: Idaho Supreme Court

65 P. 563

7 Idaho 752

HOLMBERG v. JONES, STATE AUDITOR

Supreme Court of Idaho

June 14, 1901

CREATION OF COUNTY-INVALID STATUTE.-A county cannot be created by implication and intendment merely, and a statute passed apparently for the purpose of creating a county is invalid for that purpose when it fails to declare in express language the creation of such proposed county.

STATUTORY CONSTRUCTION - INTERPOLATION BY THE COURT.-While courts do in order to carry out the will of the legislature, which has been expressed in an imperfect way, interpolate punctuation or words evidently intended to be used, into a statute, yet when the matter to be interpolated comprises the real substance of the act, the court is not authorized to make such interpolation.

JUDICIAL AMENDMENT OF STATUTE - IMPINGING LEGISLATIVE FUNCTIONS.-Judicial amendment of a statute, made by interpolating or adding words thereto, which create a county would impinge upon the function vested solely in the legislature, and is beyond the power of the court, although the court may believe, from a reading of the statute, that the legislature intended to create a county.

(Syllabus by the court.)

An original proceeding for writ of mandate.

Writ of mandamus denied.

John A. Brown, John J. Blake and W. E. Borah, for Plaintiff.

Section 4 of article 18 as originally found in the constitution reads as follows: "No new county shall be established which shall reduce any county to an area of less than four hundred square miles, nor shall a new county be formed containing an area of less than four hundred square miles." The alleged amendment, which would be amendment 4 of the constitution, reads as follows: "No new county shall be established which shall reduce any county to an area of less than four hundred square miles, nor the valuation of its taxable property to less than one million dollars, nor shall any new county be formed which shall have an area of less than four hundred square miles and taxable property of less than one million dollars as shown by the last previous assessment." It is claimed that the creation of Clearwater county comes within the inhibition of the taxable property clause. It is the contention of the petitioner that the courts must resort to the journals of the legislature to determine whether or not the provision of the constitution has been complied with, and unless the journals affirmatively show that the provisions of the constitution with reference to amendments were followed, that the proposed amendment never, in fact, became a valid amendment to the constitution. Our court has said: "Each house is required by section 13, article 3 of the constitution to keep a journal of its proceedings." This means that the journal shall show all of the proceedings of the house and all of the steps taken in the passage of every bill. By reason of this provision, the journal becomes not only the best evidence, but the exclusive evidence of what was done by the house keeping such journal and the courts must impute to the record and statements in the journal absolute verity. (Cohn v. Kingsley, 5 Idaho 416, 49 P. 985; Burkhart v. Reed, 2 Idaho 503, 22 P. 1; Clough v. Curtis, 2 Idaho 522, 22 P. 8; Wright v. Kelly, 4 Idaho 624, 43 P. 565; Blaine County v. Heard, 5 Idaho 6, 45 P. 890; Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568; Koehler v. Hill, 6 Iowa 543, 14 N.W. 738, 15 N.W. 609; Cooley's Constitutional Limitations, 163, 169.) We cite the following authorities upon the question that the court must return to the journals and be governed by them, as to a compliance with the provisions of the constitution with reference to the passage of resolutions or bills: People v. Mahaney, 13 Mich. 481; Supervisors v. Henan, 2 Minn. 289; Sedgwick on Statutory and Constitutional Law, 2d ed., secs. 54, 55; Black's Constitution Law, 60, 265; Endlich's Interpretation of Statutes, sec. 33; 1 Wharton on Evidence secs. 290-295; 1 Greenleaf on Evidence, sec. 491; Henderson v. State, 94 Ala. 95, 10 So. 333; State v. Wright, 14 Ore. 365, 12 P. 708; State v. Robinson, 20 Neb. 96, 29 N.W. 246; State v. Kiesewetter, 45 Ohio St. 254, 12 N.E. 807; State v. Mead, 71 Mo. 266; Spangle v. Jacoby, 14 Ill. 297, 58 Am. Dec. 571, and note; Ritchie v. Richards, 14 Utah 345, 47 P. 670; Glidewell v. Martin, 51 Ark. 559, 11 S.W. 882; In re Roberts, 5 Cal. 528; Berry v. Company, 41 Md. 446; Hull v. Miller, 4 Neb. 503; Opinions of Justices, 35 N.H. 579; Brown v. Nash, 1 Wyo. 85; Brewer v. Huntington, 86 Tenn. 732, 9 S.W. 166; Wise v. Begler, 39 Va. 269; Osborne v. Staley, 5 W.Va. 85, 13 Am. Rep. 640, and note. Constitutional provisions must be strictly complied with. (Andrews' American Law, sec. 121; Cooley on Constitutional Limitations, 2d ed. , 93, 94, 149; Hunt v. State, 21 Tex. App. 397; State v. Tufly, 19 Nev. 391, 12 P. 835; Collier v. Frierson, 24 Ala. 108; Koehler v. Hill, 60 Iowa 543, 14 N.W. 738; Koehler v. Hill, 60 Iowa 543, 15 N.W. 609; State v. Brookhart, 113 Iowa 250, 84 N.W. 1064; State v. Tooker, 15 Mont. 8, 37 P. 840, 25 L. R. A. 560; Prohibitory Amendment Cases, 24 Kan. 710; Oakland v. Hilton, 69 Cal. 500, 11 P. 3.)

Frank Martin, Attorney General, and J. F. Ailshie, for Defendant.

If the county of Clearwater has been created, it has been done by the legislation set out in the sections above quoted. We contend that nowhere in the act can be found language creating or organizing a county. It may be said that the legislative intent is apparent to create a county to be called and known as Clearwater county. We will answer that contention in the language of Mr. Endlich: "But the business of the interpreter is not to improve the statute, it is to expound it. Whilst he is to seek for the intention of the legislature, that intention is not to be ascertained at the expense of the clear meaning of the words. The question for him is not what the legislature meant, but what its language means. It is inaccurate to speak of the meaning or intent of a statute as something separate or distinct from the meaning of its language." (Endlich's Interpretation of Statutes, secs. 6-8; Sutherland on Statutory Construction, sec. 234; Steere v. Brownell, 124 Ill. 31, 15 N.E. 26; Swift v. Luce, 27 Me. 285; Potter's Dwarris on Statutes 199, 200; Tynan v. Walker, 35 Cal. 642, 95 Am. Dec. 152.) The title is not a part of the law in a legislative sense, and hence can never enlarge the scope of a statute. It cannot of itself confer any power. (Sutherland on Statutory Construction, sec. 212; V. & T. R. R. Co. v. Lyon Co., 6 Nev. 68.) Four full years elapsed between the time of the submission of the amendment and the time it was first questioned. In People v. Alturas County, 6 Idaho 418, 55 P. 1067, this court through its present chief justice, said: "The conclusion in this case is based upon a rule of estoppel demanded in this case by public policy." (See authorities there cited. Also, State v. Gray, 21 Nev. 378, 32 P. 190; Miller v. Johnson, 92 Ky. 589, 18 S.W. 522, 15 L. R. A. 524; In Prohibitory Amendment Cases, 24 Kan. 720; Baker v. Scott, 4 Idaho 596, 43 P. 76; Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80.) "Amendments derive their force from the action of the people and not from the action of the assembly which proposes them. If the amendment is adopted it ceases to be a mere resolution of the assembly and becomes 'to all intents and purposes' a part of the constitution." (Manly v. State, 7 Md. 147; Nesbit v. People, 19 Colo. 441, 36 P. 226; Etate v. Mason, 43 La. Ann. 590, 9 So. 776-803; Worman v. Hagan, 78 Md. 152, 21 L. R. A. 716, 27 A. 616.)

OPINION

PER CURIAM

This is an original proceeding in this court to obtain a writ of mandate compelling the defendant, as state auditor, to furnish the plaintiff, as treasurer of Clearwater county, all necessary blank licenses which the law requires the state auditor to furnish to county treasurers, and which the defendant fails and refuses to do. The defendant, as state auditor, denies the existence of Clearwater county. The petition alleges that the governor, acting under authority of an act passed by the sixth session of the legislature, approved March 22, 1901, appointed the plaintiff to the office of treasurer of Clearwater county, on the day of April, 1901, and that the plaintiff had qualified as such officer, assumed the duties of the said office, and was acting thereunder. The court made an order directing the defendant, as state auditor, to show cause why a peremptory writ of mandate, as prayed, should not issue, and in response to said order the defendant answered denying the existence of the county of Clearwater, and the question before this court for decision is as follows: Is the act of March 22, 1901, entitled "An act to create and organize the county of Clearwater and define the boundaries of Shoshone, Idaho and Nez Perces counties," valid?

It is contended on behalf of the defendant that the amendment to section 4, article 18, of the constitution, submitted or attempted to be submitted to the people for adoption or rejection, and which received a majority of the votes cast at the election of 1898, and which was, by order made by the board of canvassers, on the fifth day of December, 1898 declared adopted, never became a part of the constitution, on the ground that the resolution submitting the same to the people never passed the legislature, for the reason that out of the forty-nine members of the House of Representatives only seventeen voted in favor of its passage, while eleven voted against its passage, and twenty-one did not vote. The duly certified transcript of the journal of the House, filed as evidence in this proceeding, shows that upon the passage of the said resolution in the House, March 1, 1897, seventeen members voted for...