Nelson v. Marshall, No. 10729

• Court: United States State Supreme Court of Idaho
• Writing for the Court: DONALDSON; McQUADE, C. J., and McFADDEN and SHEPARD, JJ., and SCOGGIN
• Citation: 94 Idaho 726,497 P.2d 47
• Parties: T. Stanley NELSON, Plaintiff-Appellant, v. Charles J. MARSHALL, Chairman, et al., Defendants-Respondents.
• Decision Date: 15 May 1972
• Docket Number: No. 10729

Page 47

497 P.2d 47 94 Idaho 726 T. Stanley NELSON, Plaintiff-Appellant,
v.
Charles J. MARSHALL, Chairman, et al., Defendants-Respondents. No. 10729. Supreme Court of Idaho. May 15, 1972. Idaho 1972.

[94 Idaho 727]

Page 48

Weeks, Davis & Yost, Nampa, for plaintiff-appellant.

W. Anthony Park, Atty. Gen. and Phillip M. Barber, Asst. Atty. Gen., Boise, for defendants-appellees.

DONALDSON, Justice.

The pertinent facts giving rise to this appeal are not in dispute. On March 17, 1970, T. Stanley Nelson (plaintiff-appellant) filed a petition for a writ of prohibition to prevent the Idaho Water Resource Board from loaning money to Arves L. Christensen for the development of irrigation wells to be used in applying water to arid lands located near Payette, Idaho. The appellant is a taxpayer and has property rights adjoining the land under development by Mr. Christensen; his standing to sue was conceded by the respondents. The petition filed by the appellant in district court alleges that the Board does not have jurisdiction to make the challenged loan, for two alternative reasons: (1) the statutory provisions under which the Board is operating are unconstitutional; and (2) in approving the loan, the Board did not comply with those statutory provisions.

On April 20, 1970, a hearing on the appellant's petition was held in the Ada County district court which ruled that the equal protection clause of the Fourteenth Amendment to the United States Constitution is violated by the 'special cases' language[94 Idaho 728]

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contained in I.C. §§ 42-1754(b) ¹ and 42-1756(a). The court went on, however, to hold that the objectionable words are severable and that without them the Board may loan funds to an individual without determining that he is a special case; the court also rejected the other contentions of the appellant and denied the requested writ of prohibition.

The final judgment of the district court was filed on 22 May 1970, and a notice of appeal and a cost bond were filed on 22 June 1970. Thereafter, in the latter part of 1970, the Idaho Water Resource Board went ahead and disbursed the loan sought to be prohibited by this action (in two installments, one on 29 September 1970 and one on 30 December 1970). In other words, the act sought to be restrained herein has already been performed.

I

Before turning to the substantive questions raised by the appellant, we must dispose of a threshold issue raised by the respondents, who urge that this case has become moot and should therefore be dismissed by this Court. In support of their contention, the respondents cite Roberts v. Kartzke, 18 Idaho 552, 111 P. 1 (1910) and Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568 (1895), wherein the Court stated:

'The writ of prohibition will not issue where the act to be restrained has already been performed, even where the act has been performed during the pendency of the application for the writ, for the reason that the writ would be without any effect whatever.' ²

The respondents argue that because the loan sought to be prohibited has already been made, the requested writ is no longer available; and since no other relief was pleaded, the case is moot and should be dismissed.

The defendant's voluntary abandonment of the allegedly illegal action sought to be enjoined by the plaintiff does not necessarily make the case moot. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29 (1944). A fortiori, then, the defendant's unilateral performance of the act sought to be prohibited does not render the action moot. In either case, a dispute over the legality of the challenged practices remains to be settled. United States v. W. T. Grant Co., supra; Walling v. Helmerich & Payne, Inc., supra. Furthermore, where the defendant is likely to repeat the allegedly illegal conduct, the case is not moot. Securities and Exch. Comm'n v. Medical Comm. for Human Rights, 404 U.S. 403, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972); see United Stated States v. W. T. Grant Co., supra; Walling v. Helmerich & Payne, Inc., supra. Moreover, where an issue of substantial public interest is presented, the appeal should not be dismissed [94 Idaho 729]

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as moot. County of Madera v. Gendron, 382 P.2d 342 (Cal.1963); Di Giorgio Fruit Corp. v. Dep't of Employment, 56 Cal.2d 54, 13 Cal.Rptr. 663, 362 P.2d 487 (1961); Page v. Blunt, 126 Colo. 324, 248 P.2d 1074 (1952); People ex, rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132 (1952), cert. den., 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642 (1952); Oliver v. Oklahoma Alcoholic Beverage Control Bd., 359 P.2d 183 (Okl.1961); Huffman v. Alexander, 197 Or. 283, 253 P.2d 289 (1953); Annot., 132 A.L.R. 1185 (1941); 5 Am.Jur.2d, Appeal and Error §§ 768 and 913 (1962); 73 C.J.S. Prohibition § 10d (1951); see United States v. W. T. Grant Co., supra; cf. Bogert v. Kinzer, 93 Idaho 515, 465 P.2d 639 (1970).

Applying these rules, we conclude that this appeal should not be dismissed as moot. A dispute over the legality of the challenged loan certainly remains to be settled. The defendant has not demonstrated that there is a reasonable expectation that similar loans will not be made in the future. ³ Finally, since statutory language was held unconstitutional in the court below, and since the constitutionality of the statute and the loan made thereunder are challenged on this appeal, questions of substantial public interest have been presented for decision. For all these reasons, we must proceed to determine the merits of the case.

II

Contending that all loans to individuals are unconstitutional, the appellant submits that the trial court erred in deleting the 'special cases' language from the statutory provisions ⁴ in question because, the appellant argues, this phrase was not severable. We agree that the trial court erred in deleting these words, not for the reason suggested by the appellant, but because we disagree with the court's conclusion that this phrase violates the equal protection clause.

The trial court's holding that the 'special cases' language is unconstitutional was based upon its assumption that these words 'would permit an unequal handing of one individual loan applicant as against another individual loan applicant.' ⁵ This construction of these statutes is, in our opinion, unsound. We believe that the legislature did not intend to authorize discrimination against one individual loan applicant vis-a-vis another individual loan applicant. The legislature did indicate that in general certain loan applicants-irrigation districts, canal or irrigation companies, water users' associations, and municipal or private corporations-are to be given preference over individuals. But all individual loan applicants are to be treated equally; all the members of this class have an equal opportunity to prove that they are 'special cases'-i. e., that they are as qualified for a loan as the corporate entities enumerated in the statutes. A statute which extends an equal opportunity to all those belonging to the same class is not a constitutionally proscribed special law. Gillesby v. Board of County Comm'rs of Canyon County, 17 Idaho 586, 599, 107 P. 71 (1910). The following rule was laid down in Ada County v. Wright, 60 Idaho 394, 92 P.2d 134 (1939):

'A special law applies only to an individual or number of individuals out of a single class similarly situated and affected, or to a special locality. A law is not special simply because it may have only a local application or apply only to a special class, if in fact it does apply to all such classes and all similar localities and to all belonging to the specified class to which the law is made applicable.' ⁶

[94 Idaho 730]

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In the instant case, then, even though the 'special cases' language applies only to the class of individual loan applicants, these statutes are not necessarily special laws, since the challenged language applies to all belonging to the specified class. ⁷ The propriety of this conclusion is buttressed by the rule that where a statute is susceptible to a constitutional construction, that construction must be adopted. See, e. g., Williams v. Swensen, 93 Idaho 542, 467 P.2d 1 (1970); Rich v. Williams, 81 Idaho 311, 341, P.2d 432 (1959).

Our determination that the trial court erred in deleting the words 'in special cases when approved by the board' makes it necessary to consider the appellant's further contention that these words render the statutes in question void for vagueness because they violate article 3, section 17 of the Idaho Constitution, which provides: 'Every act or joint resolution shall be plainly worded, avoiding as far as practicable the use of technical terms.' The appellant's argument is based upon the assumption that the words 'special cases' constitute the statutory criteria for determining when a loan is to be granted to an individual. As indicated above, we construe these words to express a desire on the part of the legislature to give preference to the named corporate entities. In effect, the legislature has said that the Water Resource Board must use extra care when considering loan applications from individuals, presumably expressing a legislative belief that in general individuals are not as qualified for loans as these corporate entities. ⁸ This admonition, then, is not the statutory criteria for determining when a loan is to be granted to an individual, as contended by the appellant. Applications from individuals, like those from other applicants, must comply with the detailed requirements of I.C. § 42-1756; and specifically, the Board may approve a loan-to an individual or otherwise-only if it finds that:

'(1) The plan does not conflict with any extant Idaho state water plan;

[94 Idaho 731]

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(2) The proposed project is feasible from an engineering standpoint and...