Lane v. Lukens
| Decision Date | 19 December 1929 |
| Docket Number | 5452 |
| Citation | 283 P. 532,48 Idaho 517 |
| Parties | IRA B. LANE, Plaintiff, v. FRED E. LUKENS, Secretary of State of the State of Idaho, Defendant |
| Court | Idaho Supreme Court |
CONSTITUTIONAL LAW-AMENDMENTS - PUBLICATION - PROPOSAL AND SUBMISSION.
1. In proceedings to compel Secretary of State to call general election, as provided by Laws 1929, chap. 13, where amendment to Const., art. 4, sec. 1, adopted on November 6, 1928 (see Laws 1929, p. 688), was set up to support general demurrer it appearing that amendment expressly fixed term of office of Governor, Lieutenant-governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction for period of four years, and question submitted to voter whether term should be limited to duration of four years, amendment held void for defective submission, which was not cured by publication since word "limit" carries idea of extreme boundary.
2. Provisions of Const., art. 20, sec. 1, that it should be duty of legislature to submit constitutional amendments to electors and cause the same to be published for at least six consecutive weeks prior to election, are mandatory.
Original proceedings on application for a Writ of Mandamus to compel the defendant to call a general election as provided by chapter 13 of the 1929 Idaho Session Laws. Granted.
Writ granted. Costs to Petitioner.
Hawley & Hawley, Sweeley & Sweeley and Frank L. Stephan, for Plaintiff.
The defendant in his brief contends that the form of ballot or question submitted on the ballot was sufficient. With this contention we cannot agree. Nor do we concede that any of the cases cited in defendant's brief in support of that contention are in point. Let it be understood at this point that we are not contending against the rules announced in the cases cited, but cannot accede to the application or attempted application of the rules announced therein on the part of the defendant to support his contention. Plaintiff concedes that the whole of the proposed amendment need not be submitted in the form of a question or otherwise to the electors and that the question or formula submitted to the people need not contain all of the phraseology of the proposed amendment; it will suffice if the question or formula states generally the thing proposed to be done by amendment. Had the rules or principles announced in the cases cited by the defendant to support his contention been followed in submitting the amendment to sec. 1 of art. 4 of the Idaho Constitution the plaintiff would not now contend that the proposed amendment had not been properly submitted. The defendant has failed to take into consideration in the instant case that while a proposed amendment may be submitted by general question or formula the general question or formula used must not be misleading or deceptive.
It is plaintiff's position in the instant case that the legislature has proposed in section 1 of said resolution to definitely fix the term of certain officers at four years and has submitted to the electors an entirely different question in direct contravention of the rule announced in McBee v Brady, 15 Idaho 761, 100 P. 97, to the effect that the legislature may not propose one amendment to the Constitution and submit another. It is alleged in plaintiff's complaint on file herein that the question submitted to the electors was susceptible of several constructions.
W. D. Gillis, Attorney General, and Leon M. Fisk, Fred J. Babcock, S.E. Blaine and A. C. Cordon, Assistant Attorneys General, for Defendant.
The question that first presents itself is whether or not such a statement sufficiently identifies or is complete enough in form to advise the voter of the question upon which he is to signify his approval or disapproval. It is defendant's view that a long line of cases uphold the view that the question need contain only sufficient information as to identify the subject to the voter.
In the case of State ex rel. Thompson v. Winnett, 78 Neb. 379, 15 Ann. Cas. 781, 110 N.W. 1113, 10 L. R. A., N. S., 149, the court said:
The purpose of the amendment in this case was to create a state Railway Commission.
In the case of Cudihee v. Phelps, 76 Wash. 314, 136 P. 367, at page 372, the court declares that the statement upon the ballot does not constitute the notice given to the people of the contents of the proposed amendment and that the statement upon the ballot was not required to be more than a mere reference in very general terms to the constitutional amendment to be voted upon. (Fellows v. Eastman, 126 Me. 147, 136 A. 810; Cooney v. Foote, 142 Ga. 647, Ann. Cas. 1916B, 1001, 93 S.E. 537; Goolsby v. Stephens, 155 Ga. 509, 117 S.E. 439; State v. City of St. Louis, 319 Mo. 497, 5 S.W.2d 1080; Lovett v. Ferguson, 10 S.D. 44, 71 N.W. 765; Murphy Chair Co. v. Attorney General, 148 Mich. 563, 112 N.W. 127; 20 C. J. 150.)
It is contended by the plaintiff that the amendment was not submitted to the electors of the state in a proper and legal manner or form. The question submitted and upon which the electors voted at the election held in November, 1928, read as follows:
"Shall Section 1 of Article IV of the Constitution be amended to provide that the term of office of Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, Attorney General and Superintendent of Public Instruction shall be limited to four years?"
Petition of Ira B. Lane for a writ of mandamus against Fred E. Lukens, Secretary of State, compelling him to call a general election as provided by chap. 13 of the 1929 Idaho Session Laws.
The defendant has filed a general demurrer. In support thereof, he invokes the constitutional amendment to sec. 1, art. 4, of the Idaho Constitution, claimed by him to have been adopted by the electorate on the sixth day of November, 1928. Petitioner attacks the validity of such amendment, contending that the question as submitted to the voters was misleading, ambiguous and directly in conflict with the amendment proposed; that the amendment had not been entered on the journals of both houses of the legislature, and that it was not retroactive.
House Joint Resolution No. 8., adopted by the 19th session of the Idaho legislature, read as follows:
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...question, and the court held the legislature could reasonably have intended to exclude state bonds for various reasons. Lane v. Lukens, 48 Idaho 517, 283 P. 532, 553, relied on by plaintiff, is also distinguishable. The question there was not, as here, submitted to the people to be voted on......
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...be urged consistently that justices and judges, as judicial officers, were included in Section 27, supra. In the case of Lane v. Lukens, 48 Idaho 517, 283 P. 532, involving the validity of a Constitutional submitted to and ratified by the people, the author quotes from McBee v. Brady, 15 Id......
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