Mundell v. Swedlund

• Decision Date: 31 August 1937
• Docket Number: 6461
• Citation: 71 P.2d 434,58 Idaho 209
• Parties: GLENN I. MUNDELL, Appellant, v. C. A. SWEDLUND, Respondent
• Court: Idaho Supreme Court

71 P.2d 434

58 Idaho 209

GLENN I. MUNDELL, Appellant, v. C. A. SWEDLUND, Respondent

No. 6461

Supreme Court of Idaho

August 31, 1937

CONSTITUTIONAL LAW-AMENDMENT OF CONSTITUTION-PROCEEDINGS-INDUSTRIAL ACCIDENT BOARD-DIRECT APPEAL TO SUPREME COURT.

1. The constitutional provision for entry of proposed constitutional amendment on House and Senate journals with yeas and nays does not require that copy thereof be set forth in full, but only that evidence of agreement to resolution submitting amendment by two-thirds of members of each House voting separately be entered on journals by some definite identification with yea and nay vote. (Const., art. 20, sec 1.)

2. The framers of Constitution or legislature, adopting constitutional or statutory provision from another state after its construction by courts of such state, will be assumed to have intended to adopt such construction.

3. Entries on House and Senate journals of introduction readings, references to committees, printing, passage enrollment and transmission to secretary of state of numbered joint resolution proposing constitutional amendment, held sufficiently full and explicit to identify amendment and satisfy constitutional requirement of entry thereof on journals with yeas and nays. (Const., art. 5, sec. 9, as amended (see Sess. Laws, 1935, p. 377); Const., art. 20, sec 1.)

4. Several or different questions, apparently contained in question submitted to popular vote as involving amendment of or change in Constitution, should be submitted as one amendment, if they cannot be so intelligently divided that any one of them may become effective and operative if approved when submitted separately, though all others are rejected. (Const., art. 20, sec. 2.)

5. The people cannot alter, change, or modify proposed constitutional amendment as agreed to by legislature and submitted to popular vote, but must accept or reject amendment as submitted. (Const., art. 20, secs. 1, 2.)

6. Submission to people of proposed constitutional amendment giving Supreme Court jurisdiction to review law questions on direct appeal from Industrial Accident Board was not improper as embracing two amendments. (Const., art. 5, sec. 9, as amended (see Sess. Laws, 1935, p. 377); Const., art. 20, sec. 2.)

7. If proposed changes in Constitution can be divided into distinct and independent propositions, any one of which can be adopted without being controlled, modified, or qualified by others, as many amendments to Constitution must be submitted to people as there are distinct and independent questions or subjects involved. (Const., art. 20, sec. 2.)

8. The Constitution does not contemplate that full information as to scope and effect of proposed constitutional amendment shall be contained in question placed on ballot submitted to voters, such information being derived from publication of proposed amendment. (Const., art. 20, sec. 1.)

9. The question submitted to voters in proposed constitutional amendment, giving Supreme Court jurisdiction to review Industrial Accident Board's orders on direct appeal, was not ambiguous because amendment itself made no mention of vesting original jurisdiction in such court on such appeals, as did question placed on official ballots; question propounded being sufficient to identify proposed amendment.

10. The question placed on official ballots in submission of proposed constitutional amendment to people must not be so framed as to mislead voters.

11. A question submitted to electors as to whether section of Constitution bearing headlines, "Original and appellate jurisdiction of Supreme Court," in annotated codes, should be amended so as to give Supreme Court "original and appellate jurisdiction from orders of the Industrial Accident Board," was not confusing and misleading to voters. (Const., art. 5, sec. 9, as amended (see Sess. Laws, 1935, p. 377); Const., art. 20, sec. 1.)

12. A constitutional amendment, submitted to people by resolution directing secretary of state to publish it, was not invalid as published without authorization by legislature; such direction being intended to "cause" publication thereof within constitutional provision requiring legislature to "cause the same to be published."

13. The legislature may "cause" publication of constitutional amendment, as Constitution requires, by resolution directing state officer to publish it, as well as by formal statute.

APPEAL from order of the Industrial Accident Board. Motion to dismiss appeal denied.

Motion to dismiss the appeal denied.

E. B. Smith, for Appellant, filed no brief.

Earl E. Garrity, for Respondent, filed no brief.

J. W. Taylor, Attorney General and Ariel L. Crowley, Assistant Attorney General, J. R. Smead and Ralph S. Nelson, Amici Curiae.

Before an amendment to the Constitution proposed by joint resolution may be submitted to the people, the amendment must be entered on the journals of both houses with the yeas and nays thereon. (Const., art. 20, sec. 1; McBee v. Brady, 15 Idaho 761, 100 P. 97.) The entry in the journals must be at length. (Const., art. 3, sec. 18; Nesbit v. People, 19 Colo. 441, 36 P. 221; Oakland Pav. Co. v. Hilton, 69 Cal. 479, 11 P. 3.)

The legislature must "cause" the amendment to be published. A joint resolution directing the Secretary of State to publish is not sufficient, being entirely without force and binding on no one; a publication by him is void, unless made by direction of a statute. (Const., art. 4, sec. 10, art. 20, sec. 1; Balderston v. Brady, 17 Idaho 567, 107 P. 493; Hailey v. State Historical Soc., 25 Idaho 165, 136 P. 212; Ex parte Hague, 104 N.J. Eq. 31, 144 A. 546.)

The method of proposing constitutional amendments being not specifically designated, a joint resolution is sufficient; article 3, section 15, does not apply. (Hays v. Hays, 5 Idaho 154, 47 P. 732; Const., art. 20, sec. 1; Julius v. Callahan, 63 Minn. 154, 65 N.W. 267; Nesbit v. People, supra.)

This court in McBee v. Brady, supra, approved and cited a decision which states concisely how to determine whether or not a question submitted to the voters contains more than one amendment in the following sentence:

"In order to constitute more than one amendment the propositions submitted must relate to more than one subject and have at least two distinct and separate propositions not dependent on or connected with each other." (State v. Timme, 54 Wis. 318, 11 N.W. 785.)

Certainly the question submitted to the voters November 3, 1936, contained only the one amendment, shall section 9 of article 5 of the Constitution of the state of Idaho be amended so as to provide that the Supreme Court have original and appellate jurisdiction on questions of law from orders of the Industrial Accident Board? There are no two distinct and separate propositions not dependent on or connected with each other in the above question or amendment.

AILSHIE, J. Morgan, C. J., and Holden, Budge and Givens, JJ., concur.

OPINION

AILSHIE, J.

--Appellant is prosecuting an appeal from an order of the Industrial Accident Board, under authority of chapter 175 of the 1937 Session Laws (1937 Sess. Laws, p. 288.) Respondent has moved to dismiss the appeal on the ground that the act of the legislature (chap. 175, 1937 Sess. Laws) is invalid and void, for the reason and on the grounds, that the amendment of section 9, article 5 of the constitution, which was submitted to the electors and voted on at the 1936 election, was never submitted in the manner provided for in the constitution (sec. 1, art. 20); and that the vote, had thereon by the people, was void and the amendment never became part of the constitution.

The real and serious contentions made against the validity of the amendment are: First, that the proposed amendment was never entered on the journals of the House and Senate at the time of or prior to the taking of the yea and nay vote thereon, as required by sec. 1, art. 20 of the constitution, which provides:

"such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals";

and in the second place, it is contended that more than two amendments were proposed without being separately submitted, in violation of sec. 2, art. 20 of the constitution; and third, that the question submitted was duplicitous and ambiguous. The resolution submitting the amendment passed the House of Representatives on February 9, 1935, and passed the Senate on February 16, 1935. The resolution, including the title, with submission and direction to the secretary of state, is as follows:

"CONSTITUTIONAL AMENDMENT

To be Submitted for Vote at General Election

November 3, 1936

"(H. J. R. No. 1)

"A JOINT RESOLUTION

PROPOSING AMENDMENT OF SECTION 9 OF ARTICLE 5 OF THE CONSTITUTION OF THE STATE OF IDAHO, AND SUBMITTING TO THE ELECTORS OF THE STATE FOR THEIR APPROVAL OR REJECTION THE QUESTION OF WHETHER SAID SECTION SHALL BE SO AMENDED AS TO PROVIDE THAT THE SUPREME COURT SHALL HAVE ORIGINAL AND APPELLATE JURISDICTION OF ANY ORDER OF THE INDUSTRIAL ACCIDENT BOARD.

"Be It Resolved by the Legislature of the State of Idaho:

'Section 1. That Section 9 of Article 5 of the Constitution of the State of Idaho be amended to read as follows:

"Section 9. ORIGINAL AND APPELLATE JURISDICTION OF SUPREME COURT. The Supreme Court shall have jurisdiction to review, upon appeal any decision of the district courts, or the Judges thereof and any order of the public utilities commission, and any order of the Industrial Accident Board: the legislature may provide conditions of appeal, scope of appeal, and procedure on appeal from orders of the public utilities commission and of the Industrial Accident Board. On appeal from orders of the Industrial Accident Board the court...