McBee v. Brady

• Decision Date: 10 February 1909
• Citation: 100 P. 97,15 Idaho 761
• Parties: EDWIN McBEE, Plaintiff, v. JAMES H. BRADY, as Governor, Defendant
• Court: Idaho Supreme Court

100 P. 97

15 Idaho 761

EDWIN McBEE, Plaintiff, v. JAMES H. BRADY, as Governor, Defendant

Supreme Court of Idaho

February 10, 1909

An original proceeding brought in this court to test the question as to whether an amendment to the constitution has been regularly adopted and become a part of such constitution.

Application for the writ denied and case dismissed without cost to either party.

C. H Potts, L. L. Feltham, K. I. Perky, Edwin McBee and J. L McClear, for plaintiff.

Courts have nothing to do with the justice, wisdom, policy or expediency of a law. These are matters purely of a legislative deliberation and cognizance. (10 Am. Digest Cent. ed., p. 1426, and cases cited.) The established canons of construction applicable to statutes apply as well to constitutions. (10 Am. Digest, Cent. ed., p. 1223, and cases cited; People v. Potter, 47 N.Y. 375; 8 Cyc. 729.) If, in construing a constitutional provision, the court cannot give effect to all of it, it will not for that reason refuse to give effect to any part of it, but will enforce the provision as far as possible. (10 Am. Digest, Cent. ed., p. 1223, citing Cummings v. Spaunhorst, 5 Mo.App. 21; 5 Current Law, p. 624.)

It is true both the title to this amendment and the question submitted to the people contained reference to the repeal and amendment of several sections of the constitution, but all objects stated in the title and in the questions submitted are germane to the one central idea of the alteration of court system. (State v. Timme, 54 Wis. 318, 11 N.W. 785; State v. Herried, 10 S.D. 109, 72 N.W. 95; People v. Sours, 31 Colo. 369, 102 Am. St. Rep. 34, 74 P. 167; Lobaugh v. Cook, 127 Iowa 181, 102 N.W. 1121; Gabbert v. Chicago R. I. P. Ry. Co., 171 Mo. 84, 70 S.W. 891; State v. Board, 34 Mont. 426, 87 P. 450; Wheeler v. Herbert, 152 Cal. 224, 92 P. 354.)

Conceding that the constitution required that, when several proposed amendments are submitted to the people, they shall be so submitted that the electors may vote for or against any amendment without voting on any other amendment, it is too late to question the election, because of ambiguity on this point in the submitting statute, when the election has proceeded throughout the state without objection on the part of any person, and every qualified elector, who desired to exercise his franchise, has done so without seeking to vote on some of the amendments, while refraining from voting on the rest. (Botts v. Wurts (1899), 63 N.J.L. 289, 43 A. 744, 45 L. R. A. 251; Holmberg v. Jones, 7 Idaho 758, 65 P. 564.)

Sec. 1 of art. 20 of the constitution of Idaho, upon the adoption of amendments, provides: "If a majority of the electors shall ratify the same, such amendment shall become a part of this constitution," thus in effect saying that an amendment becomes a part of the constitution at once upon its ratification by the electors' votes. If the constitution provides when an amendment shall become operative, can the legislature by providing otherwise, legally change the time, or is this act in that respect void and should it be ignored in the interpretation of the amendment? (In re Advisory Opinion, 34 Fla. 500, 16 So. 419; Schall v. Bowman, 62 Ill. 321; Bray v. City Council of Florence, 62 S.C. 57, 39 S.E. 810; Prohibitory Amendment Cases, 24 Kan. 700; Wade v. Town of Lamoille, 112 Ill. 79.) The adoption of a constitutional amendment is at the time it is voted on. (Baker v. State (Tex. Cr. App.), 24 S.W. 31; Hays v. Hays, 5 Idaho 156, 47 P. 732.) "Constitutions must be construed, if possible, so as to give force and effect to each provision." (10 Am. Digest, Cent. ed., p. 1223, and cases cited.)

There is nothing in the constitution of Idaho providing the form of ballot when voting on an amendment. The ballot need not contain a statement of the distinct and different purposes to be accomplished by the amendment. All the constitution demands is a submission of the amendment itself to the electors of the state.

When a proposed constitutional amendment is published in full in each county in the state preceding the election for its adoption, its validity cannot be assailed because it was submitted under a misleading title, without proof that any elector was deceived thereby. (People v. Sours, supra; People v. Loomis, 135 Mich. 556, 9 N.W. 252; Russell v. Croy, 164 Mo. 69, 63 S.W. 849; State v. Laylin, 69 Ohio St. 1, 68 N.E. 574; Lovett v. Ferguson, 10 S.D. 44, 71 N.W. 765; State v. Herried, 10 S.D. 109, 72 N.W. 93.)

D. C. McDougall, Attorney General, John F. MacLane, J. H. Peterson, James H. Hawley, Frank T. Wyman and John P. Gray, for Defendant.

Ben F. Tweedy, G. Orr McMinimy, Chas. L. MacDonald, Clay McNamee, James L. Harn, E. J. Doyle, F. D. Culver, S. O. Tannahill, P. E. Stookey, I. N. Smith, Eugene O'Neill, J. B. West, Daniel Needham, John O. Bender and E. L. Elliott, Amici Curiae.

The courts can inquire into the constitutionality of the adoption of a mere amendment to the existing constitution. There is a clear legal difference between a change in a portion of the existing government, and in the establishment of an entirely new government under a new constitution. (Miller v. Johnson, 92 Ky. 589, 18 S.W. 522, 15 L. R. A. 524; Taylor v. Commonwealth, 101 Va. 829, 44 S.E. 754; Koehler v. Hitt, 60 Iowa 543, 604-614, 14 N.W. 738, 15 N.W. 609.) Furthermore, the validity of judiciary amendments has been passed upon in several cases. (See State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652; Lobaugh v. Cook, 127 Iowa 181, 102 N.W. 1121.) The right and duty of the courts to inquire into the compliance or noncompliance with the requirements of the constitution in submitting and adopting amendments to that instrument has been recognized and enforced in a long line of decisions. ("Opinion of Judges," 6 Cush. (Mass.) 573; Collier v. Frierson, 24 Ala. 108; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636; State v. Swift, 69 Ind. 505; State v. Timme, 54 Wis. 318, 11 N.W. 785; Bott v. Wurtz, 63 N.J.L. 289, 43 A. 744, 881, 45 L. R. A. 251; University v. McIver, 72 N.C. 76; Cooley's Const. Lim. 30.)

"If two or more amendments are proposed, they shall be submitted in such a manner that the electors shall vote for or against each of them separately." (Art. 20, sec. 2, Idaho Const.) Under the authorities above cited this is a mandatory requirement, and the sufficiency of the compliance therewith either by the legislature or by the people in attempting to amend the constitution, is a subject of judicial inquiry. (See, also, State v. Mason, 43 La.Ann. 590, 658, 9 So. 776; State v. Herried, 10 S.D. 109, 119, 72 N.W. 95; Gabbert v. Chicago etc. R. R., 171 Mo. 84, 91, 70 S.W. 891; People v. Sours, 31 Colo. 369, 400, 102 Am. St. Rep. 34, 74 P. 167.)

We have two amendments to section 6, art. 18, submitted on the same day, both claiming to have been adopted and each inconsistent with the other. It is not a case of two new sections being added to the constitution, which are inconsistent with each other, but of two distinct readings of the same original section. Authorities construing conflicting legislative enactments, bearing the same date are not in point, as one such enactment must follow the other in point of time, as would be shown by the journals of the legislature. (In Re Senate File 31, 25 Neb. 864, 881, 41 N.W. 981.) Every proposal to amend a section of the constitution should be separately submitted by giving the words which it is proposed to add to or take from the section. (Gabbert v. Chicago etc. Railroad, 171 Mo. 84, 70 S.W. 891.)

There was nothing on the ballot to indicate that the operation of the act was to be postponed until 1911. If voters were actually misled by the method adopted by such submission, the popular will has not been expressed on the matter and the amendment must fail. (State v. Board etc. of Washoe County, 22 Nev. 399, 41 P. 145; State v. Hoadley, 20 Nev. 317, 22 P. 99; State v. Hallock, 19 Nev. 384, 12 P. 832; Cooley's Const. Limit. 148; People v. Hills, 35 N.Y. 452; People v. Mahaney, 13 Mich. 494.)

STEWART, J. Sullivan, C. J., concurs. Ailshie, J., was not present at the hearing, and took no part in the decision of this case.

OPINION

STEWART, J.

This is an original proceeding brought in this court for mandamus to compel the governor of this state to call an election in accordance with the provisions of a constitutional amendment adopted by the voters of this state at the general election held on November 3, 1908. The real question involved is: Was such amendment proposed, submitted and adopted according to the provisions of the constitution of this state? The amendment is very lengthy, and consists in repealing secs. 11 and 21 of art. 5 of the constitution and in amending secs. 2, 17, 20 and 24, art. 5, and sec. 6, art. 18 of the constitution.

Sec. 11, art. 5, repealed by the amendment, provides that the state shall be divided into five judicial districts, that a judge shall be elected for each, that district courts shall be held in each county at least twice a year, that the legislature may increase the number of districts and district judges, and that special terms of the court may be held.

Sec. 21, repealed by the amendment, provides that probate courts shall be courts of record, and for their jurisdiction.

Sec. 2, art. 5, vests judicial power in a court for impeachments, supreme, district, probate, justice's and city courts. The section as amended vests the power in the same tribunals, excepting probate courts.

Sec. 17 of the same article fixes the salaries of the supreme justices at $ 3,000 and the district judges at $ 3,000 until otherwise fixed by the legislature. Sec. 17, as amended increases the salary of the supreme justices to $ 4,000 until otherwise provided...