Knight v. Trigg

• Decision Date: 12 April 1909
• Citation: 16 Idaho 256,100 P. 1060
• Parties: HENRY P. KNIGHT, Plaintiff, v. C. M. TRIGG et al., Defendants
• Court: Idaho Supreme Court

100 P. 1060

16 Idaho 256

HENRY P. KNIGHT, Plaintiff, v. C. M. TRIGG et al., Defendants

Supreme Court of Idaho

April 12, 1909

CONSTITUTIONAL LAW-STATUTE VOID FOR UNCERTAINTY, INDEFINITENESS AND INCOMPLETENESS-VOID SECTION DOES NOT AFFECT REMAINING STATUTE-VACANCY IN OFFICE-APPOINTMENT TO FILL VACANCY.

1. Sec 2 of Senate Bill No. 152, entitled, "An act creating the eighth judicial district; providing for the election of a judge thereof; providing for the fixing of the terms of court in said district, and relating to the causes, matters or proceedings pending in said district and empowering the judge of the first judicial district to refix the terms of court in said district for the year 1909, and amending sec. 26 of the Revised Codes of Idaho," approved March 15, 1909, is void and inoperative for indefiniteness, uncertainty and incompleteness.

2. Such indefiniteness, uncertainty and incompleteness consists in the failure of the legislature to designate, point out and provide the procedure for holding the special election that the section attempts to authorize and require, and for the further reason that in the particulars in which it is indefinite, uncertain and incomplete, the general election laws are inapplicable without substantial and material variation and alteration, such as political and ministerial officers would not be justified in attempting to make.

3. The act, Senate Bill No. 152, freed from the inoperative incomplete and void provisions contained in sec. 2, remains a substantial and complete legislative act, capable of enforcement and execution.

4. Under the provisions of sec. 19, art. 5 of the constitution a vacancy in the office of a judge of the district court shall be filled in the manner provided by law, and the legislature, by sec. 320 of the Revised Codes, has provided by law that such vacancy shall be filled by appointment by the governor until the next general election.

5. Under the provisions of sec. 317, Revised Codes, every civil office is declared vacant in case an incumbent ceases to reside in the district in which the duties of his office are to be exercised, and under the provisions of that section the office of district judge becomes vacant upon the creation of an additional district in which no district judge resides.

6. A newly created office which is not filled by the legislative act creating the same, and for which no provision is made by the act for filling the same, becomes vacant on the instant of its creation.

7. Sec. 2 of Senate Bill No. 152, approved March 15, 1909, is not sufficient authority for calling or holding a special election for the election of a district judge in the eighth judicial district, but, on the contrary, it is the duty of the governor, under sec. 19, art. 5 of the constitution, and sec. 320, Revised Codes, to appoint a fit and competent person to fill the vacancy caused by the creation of a new judicial district.

(Syllabus by the court.)

Original application for a writ of mandate. Demurrer to the petition sustained, writ denied and action dismissed.

Demurrer to the petition sustained and the writ denied and the proceedings dismissed. No costs awarded.

H. P. Knight, in propria persona.

A vacancy may exist when an office is created and no one has been appointed to fill it, and an existing office without an incumbent is vacant, whether it be a new or an old one. (People v. Opel, 188 Ill. 194, 58 N.E. 996; In re Collins, 16 Misc. 598, 40 N.Y.S. 517; Commonwealth v. Dickert, 195 Pa. 234, 45 A. 1058; People v. Rucker, 5 Colo. 455; State v. Irwin, 5 Nev. 111.) A newly created office becomes ipso facto vacant in its creation. (State ex rel. Brown v. McMillan, 108 Mo. 153, 18 S.W. 784; Smith v. Askew, 48 Ark. 82, 2 S.W. 349; Gormley v. Taylor, 44 Ga. 76.)

C. H. Potts, for Defendants, files no brief.

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This is an original application for a writ of mandate. The petitioner alleges that he is a resident, citizen and elector of Sherman precinct, county of Kootenai, and that the defendants constitute the board of commissioners of Kootenai county; that a special election has been called by the governor of the state of Idaho, for the election of a judge for the eighth judicial district, as provided for by an act of the legislature entitled, "An act creating the eighth judicial district; providing for the election of a judge thereof; providing for the fixing of the terms of court in said district, and relating to the causes, matters or proceedings pending in said district and empowering the judge of the first judicial district to refix the terms of court in said district for the year 1909, and amending sec. 26 of the Revised Codes of Idaho," approved March 15, 1909; that the election has been called to be held in the counties of Kootenai and Bonner on the 27th day of April, 1909; that the defendants, constituting the board of commissioners of Kootenai county, refuse to furnish the registrar of Sherman precinct the necessary or proper books of registry and the necessary and proper electors' oaths, blank notices, certificates and such other supplies as are needed and required for such registrar to enable him to properly perform the duties of the office of registrar for such precinct.

It is further alleged that the board of commissioners have announced and declared their purpose not to furnish the said registrar with the election registry and necessary certificates and blanks required for registering electors and holding an election, and declare their purpose not to furnish ballot-boxes for holding such special election or election supplies of any kind. Petitioner further alleges that if they fail and refuse to do so, it will be impossible to hold an election as called for by the proclamation of the governor, and that a failure to hold such election will work great and irreparable injury to the citizens of the eighth judicial district, for the reason that it will leave them without a judge in that judicial district. The petitioner prays that a writ of mandate may issue out of this court, commanding and directing the board of commissioners to furnish the registrar with the necessary books of registry and election supplies for the purpose of holding such special election. The county attorney of Kootenai county, concurrently with the filing of this petition, filed a demurrer to the petition alleging that the affidavit and petition does not state facts sufficient to constitute a cause of action authorizing the court to issue writ of mandate or grant any relief thereon. This action is really instituted for the purpose of testing the validity of Senate Bill No. 152, passed by the tenth legislative session, the title to which is above set forth, and which act was approved by the governor on March 15, 1909. No contention, however, is made as to the sufficiency of the title or as to the validity, meaning and intent of any part of the act, excepting sec. 2 thereof. The real, and, in fact, only question presented to us is as to the meaning, effect and validity of sec. 2 of the act. Sec. 1 creates the eighth judicial district out of the counties of Kootenai and Bonner. Sec. 2 reads as follows:

"The governor shall within 20 days after the passage and approval of this act call a special election to be held in said counties of Kootenai and Bonner, not less than 30 nor more than 40 days from the date of said call, and thereupon the county auditors of said counties of Kootenai and Bonner shall cause publication of said call to be made in not less than three newspapers in each county, once a week for three successive weeks prior to said election. At said election all persons registered as voters at the last general election and such other qualified voters as may offer themselves for registration to the several registrars of said counties prior to the day specified for holding said election, shall be qualified to vote thereat. The several precincts shall be the same as at the last general election; the same polling-places shall be used, and the same judges and clerks shall act, except that in case of a vacancy, the voters present at the opening of the polls may elect a person to fill such vacancy, or the judges present may appoint such person. In other respects, the election shall be conducted, and the votes counted the same as at general elections. The county commissioners of said county shall meet the third day after such election, and transmit to the Secretary of State an abstract of the votes cast, which abstract shall be canvassed by the State Board of Canvassers within three days from receipt thereof, and a certificate of election given to the successful candidate. The ballots used at such election may have printed thereon the names of any nominees who may be proposed by the respective county central committee, or by any other political organization or mass convention. The nomination shall be certified to the county auditors not less than ten days prior to said election. All expenses incurred in each county in holding said special election shall be audited by the county commissioners of said county, and allowed as a county charge."

Sec. 3 provides that:

"The judge so elected or appointed shall, within 20 days after his election or appointment and qualification," fix the terms of court for his district, etc.

Sec. 4 provides for jurisdiction of all causes pending in the counties of Kootenai and Bonner on the "election or appointment" of a judge, being vested in the eighth judicial district.

Sec. 5 authorizes the judge of the first district to refix the terms of court for the first judicial district, and sec. 6 of the act is an amendment to sec. 26 of the Revised Codes, and redistricts ...