Keenan v. Price
| Decision Date | 30 June 1948 |
| Docket Number | 7464 |
| Citation | 68 Idaho 423,195 P.2d 662 |
| Parties | KEENAN v. PRICE |
| Court | Idaho Supreme Court |
Original mandamus proceeding by Frank J. Keenan against J. D. (Cy) Price, Secretary of State of the State of Idaho.
Alternative writ quashed and permanent writ denied.
James H. Hawley and R. W. Beckwith, both of Boise, for plaintiff in error.
The question proposed by Senate Joint Resolution No. 1 was not the same as the question presented to the electors and the proposal was so uncertain that the electors were deprived of a fair opportunity to vote. Sess. Laws of 1943, page 380; Idaho Constitution, Art. 20, Sec. 1; Idaho Constitution, Art 3, Secs. 15 and 16; McBee v. Brady, 15 Idaho 761 100 P. 97; 12 Corpus Juris 692; 11 Am.Jur. 633; Lane v. Lukens, 48 Idaho 517, 283 P. 532; Mundell v. Swedlund, 58 Idaho 209, 71 P.2d 434; 11 Am.Jur. 635; 12 C.J. 688; 12 C.J. 693.
The publication as made in the newspapers did not conform to the proposal or question. State v. Enking, 62 Idaho 649, 115 P.2d 97; Mundell v. Swedlund, supra; Utter v. Moseley, 16 Idaho 274, 100 P. 1058, 133 Am.St.Rep. 94, 18 Ann.Cas. 723.
Senate Joint Resolution No. 1 submitted several separate questions in the form of one question to the electors at the election held November 7, 1944. 16 C.J.S., Constitutional Law, § 9, page 44; 11 Am.Jur. 638; Idaho Constitution, Art. XX, Sec. 2; Payette Lakes, etc. v. Lake Reservoir Co., 68 Idaho 111, 189 P.2d 1009; Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657; Mathews v. Turner, 212 Iowa 424, 236 N.W. 412; Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549, 94 A.L.R. 1502; McBee v. Brady, supra; Idaho Constitution, Art. III, Sec. 16.
The court's duty to declare this attempted amendment of the Constitution invalid and of no effect is clear. McBee v. Brady, supra; State v. Wetz, 40 N.D. 299, 168 N.W. 835, 5 A.L.R. 731; 11 Am.Jur. 639; 16 C.J.S., Constitutional Law, § 7, page 30; Cox v. Oklahoma Tax Comm., 197 Okl. 12, 168 P.2d 634.
Section 2 of Article IV of the Constitution has not been affected at all by this attempted constitutional amendment; which now stands, and always has stood, in full force and effect. Idaho Constitution, Art. III, Sec. 3; Art. IV, Sec. 2; Art. XX; 16 C.J.S., Constitutional Law, § 7, page 30; I.C.A. 33-201; I.C.A. 33-203; I.C.A. 33-609; McBee v. Brady, supra; Utter v. Moseley, supra; McCulley v. State, 102 Tenn. 509, 53 S.W. 134, 46 L.R.A. 567; Gordon v. Conner, 183 Okl. 82, 80 P.2d 322, 118 A.L.R. 783; 11 Am.Jur. 665, 678; Lamar Water & Electric Light Co. v. Lamar, 128 Mo. 188, 26 S.W. 1025, 31 S.W. 756, 32 L.R.A. 157; Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60; Platte Valley Public Power and Irrigation Dist. v. Lincoln County, 144 Neb. 584, 14 N.W.2d 202, 155 A.L.R. 412.
Robert E. Smylie, Atty. Gen. and John A. Carver, Jr., J. R. Smead, Don J. McClenahan and J. N. Leggat, Asst. Attys. Gen., for defendant in error.
The twenty-seventh session of the Idaho Legislature, in agreeing to Senate Joint Resolution No. 1, was not legislating but was performing a duty enjoined upon it, and exercising a power granted to it, by Article XX. Constitution of Idaho, Article XX, Secs. 1 and 2; Hays v. Hays, 1897, 5 Idaho 154, 47 P. 732; McBee v. Brady, 1909, 15 Idaho 761, 776, 100 P. 97; Nesbit v. People, 1894, 19 Colo. 441, 36 P. 221, 223; Julius v. Callahan, 1895, 63 Minn. 154, 65 N.W. 267; Kadderly v. City of Portland, 1903, 44 Or. 118, 74 P. 710, 716, 75 P. 222; Warfield v. Vandiver, 1905, 101 Md. 78, 60 A. 538, 540, 4 Ann.Cas. 692; Hillman v. Stockett, 1944, 183 Md. 641, 39 A.2d 803, 805; cf. State v. Kirby, 1942, 349 Mo. 988, 163 S.W.2d 990, 993; 11 Am.Jur. 633 (Constitutional Law, Sec. 28); 16 C.J.S., Constitutional Law, § 9, page 39; Dodd, The Revision and Amendment of State Constitutions, pp. 124-125, 154-155, and Ch. IV, generally.
Article XX, Constitution of Idaho, will be liberally construed by this Court. Green v. State Board of Canvassers, 1896, 5 Idaho 130, 47 P. 259, 95 Am.St.Rep. 169; Mundell v. Swedlund, 1937, 58 Idaho 209, 71 P.2d 434.
Senate Joint Resolution No. 1 was not an "act", "bill", or "statute", and for that reason its enactment was not subject to the ordinary rules of law concerning statutes and their enactment. The court may search the record to find what the Legislature agreed to and what it proposed for submission to the people as an amendment to the Constitution. State ex rel. Morris v. Secretary of State, 1891, 43 La.Ann. 590, 9 So. 776; In re McConaughy, 1909, 106 Minn. 392, 119 N.W. 408.
The Legislature was required to follow no particular form in proposing the Amendment to Article IV, Section 1, except as provided in Article XX. For that reason, every word which the Legislature used is entitled to weight and the title, Section 1, and Section 2 are possessed of equal dignity. Hays v. Hays, 1897, 5 Idaho 154, 159, 47 P. 732; McBee v. Brady, 1909, 15 Idaho 761, 771, 100 P. 97; Constitutional Prohibitory Amendment, 1881, 24 Kan. 700, 709, et seq.; cf. 30 Am.Jur. 299, (Statutes, Sec. 311).
Resort may be had to all parts of the resolution to ascertain what it was both Houses agreed to propose to the people. 16 C.J.S., Constitutional Law, §§ 15 and 16, page 51.
The omission of the words "state auditor" from the enrolled resolution (Exhibit "G") did not occur pursuant to any act of the Legislature, but rather was a result of clerical inadvertence. As such, its omission was not agreed to by the Legislature. The proposition agreed to by the two houses is fairly stated in Sec. 2 of the Resolution. Exhibits "A" through "G"; Constitutional Prohibitory Amendment, 1881, 24 Kan. 700; State ex rel. Morris v. Secretary of State, 1891, 43 La.Ann. 590, 9 So. 776; Revels v. De Goyler, 1948, Fla., 33 So.2d 719, 720.
The word "amendment" in a constitutional provision that two or more amendments "shall be so submitted as that each amendment shall be voted on separately" means a proposal of changes in a particular subject, such as the constitutional executive officers. Hillman v. Stockett, 1944, 183 Md. 641, 39 A.2d 803, 808.
The proposition submitted related to but one subject matter. There was only one distinct and separate purpose. Mundell v. Swedlund, 1937, 58 Idaho 209, 226-230, 71 P.2d 434.
The question submitted to the people did not contain more than one amendment to the Constitution. Utter v. Moseley, 1909, 16 Idaho 274, 100 P. 1058, 133 Am.St.Rep. 94, 18 Ann.Cas. 723; State v. Timme, 1882, 54 Wis. 318, 11 N.W. 785, 790, et seq. Cited with approval by this court in McBee v. Brady, 1909, 15 Idaho 761, 100 P. 97.
Plaintiff, alleging that he possesses the required qualifications for holding the office of governor and seeks the nomination of the Democratic Party therefor at the coming nominating election of August 10, 1948, brought this original proceeding for a writ of mandate to compel the defendant Secretary of State, to accept and file his declaration and petitions for candidacy and to certify his name to the county auditors as a candidate to be voted on at said election, thereby directly challenging the validity of the amendment of Sec. 1, Article IV of our Constitution, approved and ratified by a majority vote of the electors at the general election held November 7, 1944, which changed the terms of constitutional state officers from two to four years and provided that the governor should not succeed himself except after a lapse of one full term, and indirectly challenging the right of such officers elected in 1946, after the effective date of the amendment, to hold their offices longer than two years or without re-election in 1948.
We accepted jurisdiction and issued an alternative writ to the defendant to accept said filing and make such certification, or show cause why he had not done so, only because of the importance of the questions presented and the urgent necessity for immediate determination thereof occasioned by the brevity of time for filing declarations and petitions of candidacy for said nominating election under Sec. 33-605, I.C.A. as amended by Sec. 4, Chap. 2, Laws 1st Ex.Sess.1944, which would not permit of the ordinary method of the proceeding being instituted in a district court and brought here on appeal for decision prior to expiration of such filing date. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484, at page 1493.
The grounds on which plaintiff attacks the validity of the foregoing amendment, which are squarely traversed by the defendant's answer to the alternative writ, will be hereinafter set forth and discussed.
Prior to its presently contested amendment, Sec. 1 of Article IV of our Constitution, read:
Executive officers listed -- Term of office -- Place of residence -- Duties. -- The executive department shall consist of a governor, lieutenant governor, secretary of state, state auditor, state treasurer, attorney general, and superintendent of public instruction, each of whom shall hold his office for two years beginning on the first Monday in January next after his election, except as otherwise provided in this constitution. The officers of the executive department, excepting the lieutenant governor, shall, during their terms of office, reside at the seat of government, where they shall keep the public records, books and papers. They shall perform such duties as are prescribed by this constitution and as may be prescribed by law.
From the record, and Journal of the State Senate, 27th Session (1943), page 142, it appears that the amendment in controversy was originally proposed by S.J.R. No. 1, reading as follows:
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