Luker v. Curtis

• Decision Date: 28 April 1943
• Docket Number: 7103
• Citation: 136 P.2d 978,64 Idaho 703
• Parties: GEORGE LUKER, Plaintiff, v. GEORGE H. CURTIS, as Secretary of State of the State of Idaho, Defendant
• Court: Idaho Supreme Court

136 P.2d 978

64 Idaho 703

GEORGE LUKER, Plaintiff, v. GEORGE H. CURTIS, as Secretary of State of the State of Idaho, Defendant

No. 7103

Supreme Court of Idaho

April 28, 1943

CONSTITUTIONAL LAW-STATUTES-LEGISLATIVE REPEAL OF AN INITIATIVE ACT.

1. Contention that prohibition was not proper remedy for raising constitutional question involved would not be determined, but case would be determined on merits where it had been fully briefed and argued on merits and involved question of great public importance.

2. The initiative provision of the constitution does not give any more force or effect to initiative legislation than to legislative acts but places them on equal footing. (Const art. 3, sec. 1.)

3. The manner, method and instrumentalities through which the people of state determine to legislate are "political questions" involving governmental authority and policy over which courts have no jurisdiction. (Const., art. 2, sec 1; art. 3, sec. 1.)

4. The legislature had the constitutional power to enact statute repealing the Senior Citizens' Grants Act initiated by the people and approved and passed by vote of the people at general election. (Sess. Laws, 1933, chap. 210; I.C.A., sec 33-304; Const., art. 2, sec. 1; art. 3, sec. 1.)

Application for writ of prohibition. Alternative writ quashed and peremptory writ denied; proceeding dismissed.

Peremptory writ denied and proceeding dismissed.

Samuel Adelstein for plaintiff.

We cite to this honorable court from Vol. 59, C. J., Sec. 305, p. 720, as follows:

"Where the legislature enacts a law amending or repealing an initiated law, it may be submitted to a referendum under the same conditions under which all laws subject to the constitutional referendum may be submitted."

The foregoing appears to be the rule where there is no constitutional provision prohibiting the legislature from amending or repealing measures enacted by a vote of the people. (59 C. J., Sec. 305, p. 720.) From the foregoing textual statements, it appears to us, that if there is no constitutional provision prohibiting the legislature from amending or repealing a measure passed by the people under the initiative, then for the purpose of repealing, it may be submitted to a referendum; on the other hand, if there be a constitutional provision prohibiting the legislature from amending or repealing measures enacted by vote of the people, cannot by the legislature be amended or repealed. Right here it seems we have strong support for our position. Idaho, has no constitutional provision prohibiting the legislature from amending or repealing an initiated measure.

Hon. Bert H. Miller, attorney general, and Ariel L. Crowley, assistant attorney general, for defendant.

The legislature has plenary power to legislate except as restrained by the constitution, since that instrument is an instrument of limitation and not of grant. (Ingard v. Barker, 27 Idaho 124, 147 P. 293; State v. Moore, 36 Idaho 565 (585, 212 P. 349; State v. Johnson, 50 Idaho 363 (367), 296 P. 588.)

It is not required that anyone sustaining a legislative act point to authority to legislate; it is incumbent upon one attacking legislation to point to the specific constitutional limitation barring the enactment; in the absence of such a limitation the act must stand. (Authorities under V., supra; 16 C. J. S. 250 ff.; 12 C. J. 791; Idaho Gold Dredging Co. v. Balderston, 78 P.2d 105, 58 Idaho 692.)

The legislature has full power to repeal an initiative measure. ( Johnson v. Diefendorf, 56 Idaho 620, 57 P.2d 1068; Patton v. Withycombe, 159 P. 78, 81 Ore. 210; Kadderly v. Portland, 74 P. 710, 75 P. 322, 44 Ore. 146; Zilesch v. Polk County, 215 P. 578, 107 Ore. 659.)

AILSHIE, J. Budge, Givens and Dunlap, JJ., concur. HOLDEN, C.J., (Dissenting).

OPINION

AILSHIE, J.

This is an original proceeding for a writ of prohibition, restraining defendant, as Secretary of State, from publishing in the session laws of the twenty-seventh legislative session,. H. B. No. 74, passed by the twenty-seventh legislative session, which act purports to repeal the "Senior Citizens' Grants Act", initiated by the people and approved and passed by vote of the people at the general election of November, 1942. An alternative writ issued, returnable March 15th. Answer by the defendant and briefs by the respective parties were filed; whereupon the matter was heard at the March Pocatello term, upon the return and answer to the alternative writ.

The answer of defendant goes both to the procedure adopted by plaintiff and the merits of the case. It is first contended that prohibition is not the proper remedy for raising the constitutional question involved; and secondly, that the legislature has power under the constitution to repeal an initiative act. The conclusions we have reached, concerning the merits of the case, convince us of the public importance of a decision upon the constitutional question raised. Since the case has been fully briefed and argued on the merits, and in the light of its great public importance, it is thought that we should reserve our opinion on the question of technical procedure and pass upon the merits of the case at this time and set the question at rest. (Toncray v. Budge, 14 Idaho 621 at 645, 95 P. 26; State Water Conservation Board v. Enking, 56 Idaho 722, 726, 58 P.2d 779.)

Now, passing to the question as to the power of the legislature to repeal an initiative act adopted by popular vote, we must examine the provisions of the constitution, sec. 1, art. III, which provides as follows:

"Sec. 1. Legislative power--Enacting clause--Referendum--Initiative.--The legislative power of the state shall be vested in a senate and house of representatives. The enacting clause of every bill shall be as follows: 'Be it enacted by the Legislature of the State of Idaho.'

"The people reserve to themselves the power to approve or reject at the polls any act or measure passed by the legislature. This power is known as the referendum, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, demand a referendum vote on any act or measure passed by the legislature and cause the same to be submitted to a vote of the people for their approval or rejection.

"The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection provided that legislation thus submitted shall require the approval of a number of voters equal to a majority of the aggregate vote cast for the office of governor at such general election to be adopted."

The italicized portion of the foregoing, being the initiative clause, was adopted in 1912 (1913 Sess. Laws, Amendment No. 16, p. 675). Acting under procedure prescribed by the legislature (1933 Sess. Laws, chap. 210, p. 431), the requisite number of electors initiated an act designated and known as the "Senior Citizens' Grants Act", which was submitted to and adopted by the voters at the November, 1942, election. The act was certified as passed and, by the governor, declared in force November 23, 1942. The legislature, which convened in January, 1943, by H. B. No. 74, repealed the "Senior Citizens' Grants Act".

In the first place, let it be noted, the initiative provision of the constitution places no limitation whatever on the power of amendment or repeal of an initiative act.

This power of legislation, reclaimed by the people through the medium of the amendment to the constitution, did not give any more force or effect to initiative legislation than to legislative acts but placed them on an equal footing. The power to thus legislate is derived from the same source and, when exercised through one method of legislation, it is asserted, is just as binding and efficient as if accomplished by the other method; that the legislative will and result is as validly consummated the one way as the other.

It is contended, however, that the legislature has no power or authority to amend or repeal an initiative act, for the alleged reason that an initiative act comes directly from the people. That may very well be answered by the fact, that the legislators, who convene on the first Monday of January, following adoption of initiative measures, also come direct from the people, having been elected at the same time and by the same electors who adopted the initiative measure. If the legislature repeals or amends an initiative act, the people have at least two remedies, both of which they may exercise at the same time, to redress their grievance, if indeed they have a grievance, over the act of the legislature: First, they may reenact the measure by another initiative and, second, at the same time and at the same election, may elect other members of the legislature who will, or may, better heed their wishes.

The enactment of law by the legislature takes a very different course from enactment by initiative. In the legislature, a bill must be introduced, printed, read on three several days and the members thereby have an opportunity of debating the act and offering and making amendments, so that the law, if on a controversial subject, is ordinarily much discussed and analyzed. On the other hand, an initiative measure is drafted by a single person, or group of persons (Wallace v. Zinman, 200 Cal. 585, 254 P. 946, 62 A. L. R. 1341, 1345) and after circulated and filed, there is no opportunity for enactment or change until after it is voted...