Penrod v. Crowley

• Decision Date: 14 October 1960
• Docket Number: No. 8922,8922
• Parties: Harry PENROD, Harry Youren and Charles Biggers, as and constituting the Board of County Commissioners of Boise County, Idaho, Plaintiffs-Respondents. v. Ariel L. CROWLEY, in his capacity as Probate Judge of Boise County, Idaho, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 73

356 P.2d 73

82 Idaho 511

Harry PENROD, Harry Youren and Charles Biggers, as and constituting the Board of County Commissioners of Boise County, Idaho, Plaintiffs-Respondents. v. Ariel L. CROWLEY, in his capacity as Probate Judge of Boise County, Idaho, Defendant-Appellant.

No. 8922.

Supreme Court of Idaho.

Oct. 14, 1960.

Ariel L. Crowley, Idaho City, Frank L. Benson, Atty. Gen., for appellant.

Willis C. Moffatt, W. E. Sullivan, Bruce Bowler, Boise, amici curiae.

Louis H. Cosho, Boise, for respondents.

TAYLOR, Chief Justice.

The 1955 session of the legislature approved Senate Joint Resolution No. 5, as follows:

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

'Section 1. That Section 22 of Article 5 of the Constitution of the State of Idaho be amended to read as follows:

'Section 22. Jurisdiction of justices of the peace.--In each county of this state * * * justices of the peace shall be selected in the manner as prescribed by law. Justices of the peace shall have such jurisdiction in civil and criminal cases as may be conferred by law, but they shall not have jurisdiction of any cause * * * where the boundaries or title to any real property shall be * * * in issue.

'Sec. 2. The question to be submitted to the electors of the State of Idaho at the next general election shall be as follows:

"Shall Section 22 of Article 5 of the Constitution of the State of Idaho relating to the jurisdiction of justices of the peace be amended to provide for the selection of justices of the peace and to eliminate the limitation of jurisdiction with respect to cases wherein the value of the property or the amount in controversy is not in excess of the sum of $300, exclusive of interest and in lieu thereof to provide that justices of the peace shall have such jurisdiction in civil and criminal cases as may be conferred by law?" Sess.Laws 1955, page 670.

The proposed amendment was ratified by the electors of the state at the general election held in November, 1956. Prior to amendment, § 22 of art. 5 was as follows:

' § 22. Jurisdiction of justices of the peace.--In each county of this state there shall be elected justices of the peace as prescribed by law. Justices of the peace shall have such jurisdiction as may be conferred by law, but they shall not have jurisdiction of any cause wherein the value of the property or the amount in controversy exceeds the sum of three hundred dollars, exclusive of interest, nor where the boundaries or title to any real property shall be called in question.'

In 1959, pursuant to the amendment, the legislature enacted and the governor approved Senate Bill No. 27 (Sess.Laws 1959, c. 221). Among other things, this act provides:

'Justices of the Peace shall be appointed by and may be removed at the discretion of the Board of County Commissioners of the county and the probate judge; * * *'. § 4.

January 18, 1960, the plaintiffs as county commissioners of Boise county filed their complaint in the district court against the defendant in his capacity as probate judge of Boise county, alleging that they convened as such board in regular session January 12, 1960, for the purpose of appointing a justice of the peace for the Horseshoe Bend precinct in Boise county pursuant to authority of Sess.Laws 1959, c. 221, § 4; that defendant met with the board and notified the board that until the validity of the constitutional amendment of 1955 and of Sess.Laws 1959, c. 221, is judicially established, he does now, and will continue to, refuse to approve the appointment of any justice of the peace in Boise county; that the defendant asserts the constitutional provision has never been amended by reason of defects in submission of the proposed amendment to the electorate; and that art. 5, § 22, of the Constitution as it existed prior to the purported amendment is still in force, requiring the election of justices of the peace; that because of the refusal of the defendant to act in the premises, plaintiffs cannot perform the duty imposed upon them by Sess.Laws 1959, c. 221, § 4.

Plaintiffs pray that the validity of the constitutional amendment and the 1959 act be declared, and the defendant be required to act with the board in the appointment of justices of the peace pursuant to the statute.

In his answer defendant alleges that:

1. Const. art. 20, § 2, providing that

'If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately'

was not complied with, in that the proposed amendment consists 'of several amendments' and that they were not submitted in such manner that the electors should vote for or against each of them separately.

2. 'Senate Joint Resolution No. 5, 670-671 1955 Session Laws, proposed three constitutional amendments, towit: (a) selection in lieu of election of justices of the peace, (b) elimination of the monetary jurisdictional limitation of $300 exclusive of interest, and (c) elimination of the clause 'where the boundaries or title to any real property shall be called in question' and substitution therefor of the clause 'where the boundaries or title to any real property shall be in issue.''

3. 'Each of said proposed amendments is a radical departure from the previous constitutional provision, each is independent, completely segregable, and this defendant, who is, in additional capacity a licensed and practicing attorney at law as well as a citizen and resident of Boise County and an elector thereof, was denied at said general election his right to vote for or against the said three amendments separately, as were all other electors who voted at said election.'

4. That c. 221, Sess.Laws 1959, is void because dependent upon the attempted constitutional amendment.

Both parties moved for summary judgment. The court made and entered its judgment upholding the validity of the constitutional amendment and c. 221, Sess.Laws 1959, and ordered the defendant in his capacity as probate judge to act with the plaintiffs in the appointment of justices of the peace. Defendant brought this appeal.

In his brief on appeal defendant now contends that the resolution of the legislature proposed five constitutional amendments, and submitted same in one single question in violation of art. 20, § 2. The five alleged amendments are set out by defendant as follows:

'1. The insertion of a new and definitive title Jurisdiction of Justices of the Peace in contravention of the actual sense of Article V, Section 22.

'2. Substitution of selection for election of Justices of the Peace.

'3. Elimination of the monetary ceiling on jurisdiction.

'4. Deprivation of Justices of the Peace of the former constitutional right to exercise all jurisdiction conferred by law, and limiting the same to civil and criminal cases.

'5. Elimination of the words 'called in question' and substitution of the words 'in issue', of radically different import, therefor.'

The fundamental principles governing our determination of the validity of constitutional amendments are set out at length in a well-reasoned opinion by Justice Hyatt in Keenan v. Price, 68 Idaho 423, 195 P.2d 662, 667, among which are the following:

'* * * and here as always we enter upon a consideration of the validity of a constitutional amendment after its adoption by the people with every presumption in its favor: The question is not whether it is possible to condemn the amendment, but whether it is possible to uphold it, and we shall not condemn it unless in our judgment its nullity is manifest beyond a reasonable doubt.' State ex rel. Corry v. Cooney, 70 Mont. 355, 225 P. 1007, at page 1009.

'The view is taken that substance is more important than form, and that the will of the legislature lawfully expressed in proposing an amendment and the will of the people expressed at the proper time and in the proper manner in ratifying such amendment ought not to be lightly disregarded.' 11 Am.Jur., Constitutional Law, § 32, p. 638.

'Another factor which must be noted and which must govern in the determination of this issue is 'that every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of an amendment to the Constitution when it is attacked after its ratification by the people.' People ex rel. Elder v. Sours, 31 Colo. 369, 74 P. 167, 169, 102 Am.St.Rep. 34.' Keenan v. Price, 68 Idaho 423, 434, 195 P.2d 662.

In support of his contention that more than one amendment was submitted in the question, the defendant urges the rule followed in McBee v. Brady, 15 Idaho 761, 100 P. 97, therein stated as follows:

'The determination whether a proposed change in the Constitution constitutes one or more amendments, it seems to us, depends upon whether the change as proposed relates to one subject and accomplishes a single purpose, and the true test should be, can the change or changes proposed be divided into subjects distinct and independent, and can any one of them be adopted without in any way being controlled, modified, or qualified by the other? If not, then there are as many amendments as there are distinct and independent subjects, and it matters not whether the proposed change affects one or many sections or articles of the constitution.' 15 Idaho at page 779, 100 P. at page 103.

In that case the proposed amendment was lengthy. It proposed to repeal two sections of the constitution and to amend five others. A study of the opinion indicates that the principal object of the proposed amendment was to abolish the probate courts and to transfer their jurisdiction to the district courts. The court held that the proposal contained six amendments, each complete within itself, and not affected, controlled or modified by any of the others. The court did not determine nor discuss what may have been the general controlling purpose of the proposal. However, it does appear that the proposal therein considered to increase the salaries of the justices...