Johnston v. Savidge

• Decision Date: 22 June 1905
• Parties: JOHNSTON v. SAVIDGE
• Court: Idaho Supreme Court

81 P. 616

11 Idaho 204

JOHNSTON v. SAVIDGE

Supreme Court of Idaho

June 22, 1905

INCORPORATED CITIES-JUSTICE'S PRECINCTS-POWER OF BOARD OF COMMISSIONERS-NUMBER OF JUSTICES IN EACH PRECINCT-REVIEW ON APPEAL-QUO WARRANTO-STATUTORY CONSTRUCTION.

1. Under the provisions of subdivisions 2 and 3 of section 1759 of the Revised Statutes, a board of county commissioners has 'he power to establish, abolish and change justices precincts in incorporated cities.

2. That provision in section 11 of an act approved February 25, 1891 (Sess. Laws 1891, p. 60), which provides that there shall be at each general election two justices of the peace elected in each justice's precinct "except wards in incorporated cities" does not prohibit the proper board of county commissioners from establishing justice's precincts within such cities and the election of two justices of the peace in each of such precincts.

3. If the board of county commissioners has jurisdiction to create justices precincts within the limits of an incorporated city and does so, its action can only be reviewed by appeal.

4. Where the action of a board of county commissioners is only voidable, a review thereof must be had by appeal. Such action will not be reviewed on a proceeding in the nature of quo warranto.

5. Where a portion of an ordinance of a board of county commissioners is invalid, and the valid portion contains the essential elements of a complete ordinance, the invalid portion may be rejected and the remainder stand valid and operative.

(Syllabus by the court.)

APPEAL from the District Court of Ada County. Honorable George H Stewart, Judge.

Action in quo warranto to determine the rights to the office of justice of the peace. Judgment for the defendant. Affirmed.

Judgment affirmed, with costs in favor of respondent.

J. C Johnston and Jesse B. Hawley, for Appellant.

In California, upon a section from which our own was taken, the court held "That an action may be brought against all persons who claim title to the same office to try their respective rights thereto." (People v. Prewett, 124 Cal. 7, 56 P. 619. See, also, State v. Frantz, 55 Neb. 167, 75 N.W. 546; People v. Carpenter, 24 N.Y. 86.) California, Oregon and New York statutes contain the same provisions upon the adoption of the statute of usurpation, and the courts of these states held that the said provisions only do away with the form of the action, and that the remedies afforded by the ancient common-law writ of quo warranto are still obtainable under the code. (State v. Douglass Co. Road Co., 10 Or. 199-273; People ex rel. Hartzel v. Hall, 80 N.Y. 117; People v. Thatcher, 55 N.Y. 528, 529, 14 Am. Rep. 312; People v. Stanford, 77 Cal. 360, 18 P. 85-87, 19 P. 693, 2 L. R. A. 92.) The substitution of a civil action and complaint for the old information does not change the mode of pleading, and a general charge of usurpation is sufficient in the information. (People v. Knox, 38 Hun, 237; State v. Sullivan, 8 Ohio Cir. Dec. 349; State v. Stevens, 29 Or. 477, 44 P. 898; 2 Spelling on Extraordinary Relief, p. 1509, sec. 1846; Lake v. Crawford, 28 Mich. 88; People ex rel. Fulkenberg v. Miles, 2 Mich. 349; Miller v. English, 21 N.J.L. 317; Rex v. Harwood, 2 East, 177.) The burden of proof is on the respondent to justify his own title and judgment, for ouster will be rendered against him if he fails to show title, whether the relator shows title or not. (People v. Mayworm, 5 Mich. 146; People ex rel. Keeler v. Robertson, 27 Mich. 116; People v. Thatcher, 55 N.Y. 525, 14 Am. Rep. 312.) The next question involved in this case is the claim of title to the office of justice of the peace by the respondent herein. And that said claim of office is based upon an election held in pursuance of and upon an unconstitutional, unlawful, invalid and void ordinance or order passed by the board of county commissioners of Ada county, August 18, 1904. (Sess. Laws 1890-91, p. 60. sec. 11; Idaho Rev. Stats. 1887, sec. 1759, subds. 2, 3.) Their power, then, in pursuance of the statute and said act is as follows: "To divide the county into justice's precincts, except in wards in incorporated cities." This exception is a limitation and a prohibition upon the power of the board, "in wards in incorporated cities," as otherwise the exception clause has no meaning in said act, and the board could not proceed partially under said act and disregard the exception clause therein. It is a cardinal rule of construction that each part of an act shall be construed in accordance with the meaning and intent of the law-making body. It is also a cardinal rule of construction that a statute free from ambiguity and uncertainty needs no interpretation, and interpretation is not allowable, when the legislative intent, which is the office of interpretation to ascertain, is clearly expressed. (Davis v. Hart, 123 Cal. 384, 55 P. 1060; Sutherland on Statutory Construction, p. 294, sec. 222, p. 295, sec. 222, sec. 366, p. 591, sec. 459; Endlich on Interpretation of Statutes, p. 253, sec. 184.) The legislature of the various states control this matter under like constitutions with our own by direct legislative acts under their powers vested by the constitution in the legislature and in no other body to incorporate, organize and classify cities and towns, to amend, alter, and change their boundaries at pleasure. (Cal. Civ. Code, p. 38, sec. 85; Cal. Code Civ. Proc., p. 42, sec. 103; Pol. Code, title 11, p. 664, sec. 4104; Statutes and Amendments of California, 1897, p. 474, sec. 56.) A justice of the peace is a constitutional officer, and his powers and duties are prescribed by the legislature, and the county board has no power to regulate or abolish his office. (State ex rel. Boll v. John Snodgrass, 4 Nev. 524; Board of County Commrs. of Pueblo Co. v. Smith, 22 Colo. 534, 546, 45 P. 357, 33 L. R. A. 465.) The legislature cannot delegate the functions expressly vested in it by the constitution to boards of county commissioners or judiciary, nor can a legislative power be exercised by the board of county commissioners. (Dougherty v. Austin, 94 Cal. 601, 28 P. 834, 29 P. 1092, 61 L. R. A. 161; Reynolds v. Board of County Commrs. of Oneida County, 6 Idaho 787, 59 P. 730.) An ordinance can be partly good and partly bad only where the parts are in themselves distinct from each other, and where the two are so inseparably blended together as to make it clear that either clause would not have been enacted without the other, the whole act is void. (17 Am. & Eng. Ency. of Law, 1st ed., 266; State v. Hardy, 7 Neb. 377; San Francisco v. Spring Valley Water Works, 48 Cal. 494; French v. Teschemaker, 24 Cal. 518.)

C. C. Cavanah and Richards & Haga, for Respondent.

This action is not prosecuted in the name of the state or the people of the state, or by the county attorney or public prosecutor, but the action is brought for the enforcement of a private right by a private individual who appears and prosecutes by private counsel. If maintained at all, it must be under that part of section 4612, Revised Statutes of 1887 which reads as follows: "Any person rightfully entitled to an office or franchise may bring an action in his own name against a person who has usurped, intruded into, or who holds or exercises the same." When an action in quo warranto is brought by the people or in behalf of the public by the public prosecutor, the burden of proof is on the respondent to show the legality of his election or appointment, but this is not the rule when the action is brought by a claimant who claims title to the office in himself. In such case it is incumbent on relator to show that he is "rightfully entitled" to the office in question before he can inquire into the title of respondent. (2 Spelling on Extraordinary Relief, sec. 1878; State v. Moores, 52 Neb. 634, 73 N.W. 299; State v. Oftedal, 72 Minn. 498, 75 N.W. 692; Tillman v. Otter, 93 Ky. 600, 20 S.W. 1036, 29 L. R. A. 110; Attorney General v. May, 99 Mich. 538, 58 N.W. 483, 25 L. R. A. 325; 23 Am. & Eng. Ency. of Law, 626; 17 Ency. of Pl. & Pr. 482.) It is well settled that the right of a private person to institute a proceeding in quo warranto depends on his own superior right to the office. If he is not entitled to it, it is a matter of no importance to him who is. (State v. Ellington, 117 N.C. 158, 53 Am. St. Rep. 580, 23 S.E. 250, 30 L. R. A. 532; Howes v. Perry, 92 Ky. 260, 17 S.W. 575; State v. Wheatley, 160 Ind. 183, 66 N.E. 684; 2 Spelling on Extraordinary Relief, sec. 1758; 17 Ency. of Pl. & Pr. 463, 471; State ex rel. Griffith v. Vineyard, supra; Morris v. People, 8 Colo. App. 375, 46 P. 691; Board of Commrs. v. Smith, 22 Colo. 534, 45 P. 357, 33 L. R. A. 465; Idaho Const., art. 5, sec. 22.) Appellant is not in a position to question the power of the board of county commissioners to establish justices' precincts in incorporated cities, for appellant bases his own title to the office upon two distinct ordinances passed by the same board and for the same city, and applies with equal force as against the ordinances under which the relator himself asserts title to the office. (State v. Stuht, 52 Neb. 209, 71 N.W. 941; 2 Spelling on Extraordinary Relief, sec. 1796; State v. Boyd, 34 Neb. 435, 51 N.W. 964.) "Where a regular meeting of a board of county commissioners adjourns to a subsequent day, all the members being present, each member is charged with the official duty of attending, and with notice of any lawful action to be taken at such adjourned meeting, and anything done at such adjourned meeting within the power of the board to do is not rendered invalid by the fact that one member did not attend it." (Stockton v. Powell, 29 Fla. 1, 65, 10 So. 688, 15 L. R. A. 42; Damon v. Granby, 2 Pick. 353; Kingsbury v. Central...