Noble v. Bragaw

• Citation: 12 Idaho 265,85 P. 903
• Parties: G. E. NOBLE, State Veterinary Surgeon, Petitioner and Plaintiff, v. ROBERT S. BRAGAW, State Auditor, Defendant
• Decision Date: 16 April 1906
• Court: Idaho Supreme Court

85 P. 903

12 Idaho 265

G. E. NOBLE, State Veterinary Surgeon, Petitioner and Plaintiff, v. ROBERT S. BRAGAW, State Auditor, Defendant

Supreme Court of Idaho

April 16, 1906

CONSTITUTIONAL LAW-REPEAL, AMENDMENT AND REVISION OF LEGISLATIVE ACT-PUBLICATION OF SECTION AS AMENDED-STATE VETERINARY SURGEON-DUTIES OF-RULE OF STATUTORY CONSTRUCTION-ABOLISHMENT OF OFFICE-DUTIES IMPOSED ON OTHERS-EXPRESS AND IMPLIED REPEALS-AMENDATORY ACTS-ACT PART CONSTITUTIONAL AND PART UNCONSTITUTIONAL.

1. Before a legislative act is held unconstitutional, it should appear beyond a reasonable doubt that it infringes some provision of the constitution. Section 18 of article 3 of the state constitution prohibits the legislature from revising or amending any act by mere reference to its title and commands that the section as amended shall be set forth and published at full length.

2. Said section of the constitution does not require the whole act containing the section amended to be republished in full; it only requires republication of the section amended.

3. An act approved February 6, 1905 (Sess. Laws 1905, p. 39), is an act for the suppression of contagious and infectious diseases among livestock, and repeals certain provisions of an act entitled, "An act to suppress contagious and infectious diseases of sheep, etc.," approved March 7, 1901 (Sess. Laws 1901, p. 142), and continues in force certain provisions of said act relative to the authority and duties of the state sheep inspector and his deputies, and imposes those duties on the state veterinary surgeon and those under him.

4. Under the provisions of said section 18, article 3 of the constitution, a repeal may be made of a certain section or of an entire act without republishing the whole of the same, as said section of the constitution has no application to repeals, but only to revisions and amendments.

5. Section 39 of the act of 1905 provides, among other things that its provisions should not be so construed as repealing any provision of the act of 1901 not inconsistent with or in conflict with the provisions of the act of 1905, and then declares that the remaining provisions of the act of 1901 and the act of 1905 should be construed together for the purpose of carrying out the objects sought by each, to wit, the eradication of contagious and infectious diseases among the livestock in the state. That is only an announcement of the legislative intent and correctly states the rule applicable to the construction of two acts or two laws bearing on the same subject.

6. The act of 1905 abolishes the office of state sheep inspector and his deputies, and in their place creates the office of state veterinary surgeon, assistants and livestock inspectors, and to that extent repeals the act of 1901. Said act of 1905 prescribes many of the duties of said last-mentioned officers, and in addition requires them to perform all of the duties required by the act of 1901 to be performed by the state sheep inspector and deputies not repealed by said act of 1905.

7. The abolishment of an appointive office by an act of the legislature and imposing the duties of such office on another officer without enumerating in detail such duties, in no manner violates the provisions of section 18, article 3 of the constitution.

8. Neither express nor implied repeals come within the constitutional inhibition contained in said section 18 article 3 of the constitution.

9. Two or more laws relating to the same subject, or different parts of the same subject, are not necessarily amendatory to each other within the meaning of the provisions of said section 18 of article 3 of the constitution, although they may be construed in pari materia.

(Syllabus by the court.)

APPLICATION for a writ of mandate to compel the state auditor to issue a state warrant in payment of the state veterinary surgeon's salary. Writ granted.

Peremptory writ of mandate issued.

Richards & Haga, for Plaintiff.

Every possible presumption is to be indulged in favor of the validity of the statute. (Fletcher v. Peck, 6 Cranch, 128, 3 L.Ed. 162; Ogden v. Saunders, 12 Wheat. 270, 6 L.Ed. 606; Mulger v. Kansas City, 123 U.S. 623 31 L.Ed. 205, 8 S.Ct. 273.)

Section 3, article 18, of the Idaho constitution does not apply to acts that do not purport to amend or revise. It has no application to amendments by implication, or to repeals, either express or by implication; it does not require all the law on that particular subject to be republished in full; it only requires the republication of the section which it purports to amend, and if the amendment is caused by implication, no republication is necessary. (Gilbert v. Moody, 3 Idaho 3, 25 P. 1092.)

The leading case on the construction of such constitutional provision as is now before the court is People v. Mahaney, 13 Mich. 496. See, also, Evernham v. Hulit, 45 N.J.L. 53; Denver Circle R. R. Co. v. Nester, 10 Colo. 403, 15 P. 714; People v. Wright, 70 Ill. 388; Long v. Sullivan, 21 Colo. 109, 40 P. 359; Warren v. Crosby, 24 Or. 558, 34 P. 661; Northern Counties Investment Co. v. Sears, 30 Or. 388, 41 P. 931, 35 L. R. A. 188; Hellman v. Shoulters, 114 Cal. 136, 44 P. 915, 45 P. 1057; Lake v. State, 18 Fla. 501; State v. Cain, 8 W.Va. 720; State v. Moore, 48 Neb. 870, 67 N.W. 876; County Commrs. of Dorchester Co. v. Meekins, 50 Md. 28, 44; State v. Bennett (Mo.), 11 S.W. 264; State v. Scott, 32 Wash. 279, 73 P. 365; State v. Rogers, 107 Ala. 444, 19 So. 909, 32 L. R. A. 520; Arnoult v. New Orleans, 11 La. Ann. 54; State v. Miller, 100 Mo. 439, 13 S.W. 677; Johnson v. Martin, 75 Tex. 33, 12 S.W. 321; 26 Am. & Eng. Ency. of Law, 2d ed., 711, 714; State v. Jones, 9 Idaho 693, 75 P. 819; School Directors v. School Directors, 135 Ill. 464; 28 N.E. 49. Where one construction of ambiguous words in an amendatory act would render it obnoxious to this constitutional inhibition, and another construction would render it valid, the latter must be adopted. (26 Am. & Eng. Ency. of Law, 707; Horkey v. Kendall, 53 Neb. 522, 68 Am. St. Rep. 623, 73 N.W. 953; State v. Frank, 60 Neb. 327, 83 N.W. 74.)

An act will not be held unconstitutional merely because there may be persons to whom or cases in which it cannot in all respects constitutionally apply.

The objections urged by defendant as to its being impossible to determine what portions of the old act are left intact by reason of the reference thereto made in section 39 of the act of 1905 are not available as to him and as against plaintiff. (Airy v. People, 21 Colo. 144, 40 P. 362; McKinney v. State, 3 Wyo. 719, 30 P. 293, 295, 16 L. R. A. 710; Newman v. People, 23 Colo. 300, 47 P. 278; Cooley's Constitutional Limitations, 5th ed., 197; Davidson v. Von Detten, 139 Cal. 467, 73 P. 189.)

J. J. Guheen, Attorney General, and Edwin Snow, for Defendant.

The act of March 6, 1905, by the provisions of section 39, clearly and in terms amends the act of the legislature approved March 7, 1901 (Sess. Laws 1901, p. 142); and by reason of such amendment the entire act of March 6, 1905, becomes interwoven with the portions of the act of 1901 so amended, so that the whole act of March 6, 1905, is thereby rendered void. (Warren v. Crosby, 24 Or. 558, 34 P. 661.)

Sections of the constitution similar to the one involved in this case are common in the constitutions of most of the states. The books are full of cases in which similar attempts were made to evade these constitutional provisions. Some of these amended sections of the law by title; others ingrafted further provisions of the law upon sections which were referred to only by stating the substance of them; and still other cases simply set forth certain new provisions of the law, but which, in their very nature, had to be construed in connection with existing legislation, or must otherwise have become entirely inoperative. (Barnhill v. Teague, 96 Ala. 207, 11 So. 444; In re Buelow, 98 F. 86; Copland v. Pirie, 26 Wash. 481, 90 Am. St. Rep. 769, 67 P. 227; Stricklett v. State, 31 Neb. 674, 48 N.W. 820; Cooley's Constitutional Limitations, 7th ed., p. 214; Sutherland on Statutory Construction, 2d ed., sec. 231, and cases there cited; 44 Century Digest, col. 2695, where a large number of cases are given; 26 Am. & Eng. Ency. of Law, 2d ed., p. 707; Lehman v. McBride, 15 Ohio St. 602; Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Miller v. Berry, 101 Ala. 531, 14 So. 655; Haring v. State, 51 N.J.L. 386, 17 A. 1079; State v. Beddo, 22 Utah 432, 63 P. 96 (followed in several subsequent cases); Judson v. Bessemer, 87 Ala. 240, 6 So. 267, 4 L. R. A. 742; Beard v. Wilson, 52 Ark. 290, 12 S.W. 567; Dodd v. State, 18 Ind. 56; Haverly v. State, 63 Neb. 83, 88 N.W. 171; In re House Roll No. 284, 31 Neb. 505, 48 N.W. 275; French v. Woodward, 58 Mo. 66; Walker v. Caldwell, 4 La. Ann. 297; State v. Guiney, 55 Kan. 532, 40 P. 926.)

Fremont Wood and Edgar Wilson, amici curiae.

We contend that section 39 of the act known as the state veterinary law clearly revised and is amendatory of the law creating the office of sheep inspector, prescribing his duties, etc., approved March 7, 1901, and that it therefore violates section 18 of article 3 of our state constitution.

It is absolutely impossible to read the act of 1905 and know what the law on the subject is without a judicial interpretation of every section of the act of 1901. To prevent this condition of affairs arising in legislation the above section of our constitution was adopted. (Citing, in addition to authorities cited by counsel for defendant, 23 Am. & Eng Ency. of Law, 278, and following: Evernham v. Hulit, 45 N.J.L. 53; State v. Parsons, 40 N.J.L. 123; Colwell v. Chamberlain, 43 N.J.L. 388; Campbell v. Board of Pharmacy, 45 N.J.L. 241; State v. McNeal (Christie v. Bayonne), 48...