Petition of Idaho State Federation of Labor, 8160

• Decision Date: 30 June 1954
• Docket Number: No. 8160,8160
• Citation: 75 Idaho 367,272 P.2d 707
• Parties: In re The PETITION OF IDAHO STATE FEDERATION OF LABOR (AFL), an unincorporated association, by Elmer F. McIntire, Executive Secretary thereof, and Fred H. McCabe, Chairman of the Legislative Committee thereof; IDAHO CONGRESS OF INDUSTRIAL ORGANIZATION (CIO), an unincorporated association, by Fred L. Garrett, Secretary-Treasurer of the Political Legislative Council thereof; and Elmer F. McINTIRE, Fred H. McCabe, and Fred L. Garrett, individually, Petitioners-Plaintiffs, To Appeal The Decision of the Attorney General of the State of Idaho Respecting The Ballot Title To A Proposed Initiative, Robert E. SMYLIE, Attorney General, Defendant, and PEOPLES RIGHT TO WORK COMMITTEE, Inc., a corporation, by its President, Craig W. Johnson, and its Secretary-Treasurer, Keith H. Johnson, Intervenor, and Craig W. JOHNSON and Keith H. Johnson, individually, and as signers of the original Right to Work Petition filed with the Honorable Secretary of State of the State of Idaho, Proponents.
• Court: Idaho Supreme Court

Page 707

272 P.2d 707

75 Idaho 367

In re The PETITION OF IDAHO STATE FEDERATION OF LABOR (AFL) an unincorporated association, by Elmer F. McIntire Executive Secretary thereof, and Fred H. McCabe, Chairman of the Legislative Committee thereof; IDAHO CONGRESS OF INDUSTRIAL ORGANIZATION (CIO), an unincorporated association, by Fred L. Garrett, Secretary-Treasurer of the Political Legislative Council thereof; and Elmer F McINTIRE, Fred H. McCabe, and Fred L. Garrett, individually Petitioners-Plaintiffs, To Appeal The Decision of the Attorney General of the State of Idaho Respecting The Ballot Title To A Proposed Initiative, Robert E. SMYLIE, Attorney General, Defendant, and PEOPLES RIGHT TO WORK COMMITTEE, Inc., a corporation, by its President, Craig W. Johnson, and its Secretary-Treasurer, Keith H. Johnson, Intervenor, and Craig W. JOHNSON and Keith H. Johnson, individually, and as signers of the original Right to Work Petition filed with the Honorable Secretary of State of the State of Idaho, Proponents.

No. 8160.

Supreme Court of Idaho.

June 30, 1954.

Carver, McClenahan & Greenfield, Boise, for petitioners.

Robert E. Smylie, Atty. Gen., and Robert B. Hodges, Asst. Atty. Gen., Boise, for State of Idaho.

Ezra P. Monson, Blackfoot, for proponents.

GIVENS, Justice.

April 10, 1954, proponents filed with the Secretary of State a petition for an initiative measure, pursuant to Section 34-1801, I.C., signed by twenty residents of Blackfoot and Idaho Falls. (Copy of proposed initiative appended hereto.)

Compliant with Section 34-1809, I.C., the Attorney General provided and returned to the Secretary of State as a distinctive short title, 'The Right to Work Initiative Proposal' and a long title which, as amended, is not questioned.

Patently 'Initiative measure for or to' or other appropriate concluding preposition, is no more a part of the restrictive ten-word short title than 'An Act' preceding a regular legislative statute is, though both are equally necessary for identification.

Thereafter, under Section 34-1809, I.C., petitioners herein, May 4, filed their petition, amended May 7, challenging said short title mainly because it lacked reference to membership or lack of membership in a labor union or organization, with further elaboration thereof, as the sine qua non of the proposed measure.

Section 34-1809, I.C., outlines no procedure or process for hearing such socalled appeal by this Court.

The principles announced in Roche v. Superior Court, 30 Cal.App. 255, 157 P. 830, 832, relative to Section 187, Cal.Code of Civil Procedure, identical with Section 1-1622, I.C., in connection with an election contest, as analogous, are applicable. The Court therein stated:

'Under section 187, Code of Civil Procedure, it devolves upon the court in such a case to adopt a suitable procedure which will furnish as opportunity for any interested person to appear at the hearing.'

Section 7-208, I.C., authorizes shortening of the return time specified therein; hence, due to the exigencies of the situation, by minute entry May 10, Record Book 10, page 164, we ordered petitioners to serve the Attorney General and Secretary of State with, and notify proponents of, the petition; fixing successive return days for traverses and briefs and service thereof, authorizing appearances and argument at the hearing, set for June 2, 1954.

May 14 petitioners filed proof of proper service.

May 18 the Attorney General filed his response to the effect he had no adversary interest herein, individually or officially; that he entitled the act in accordance with the statute; waived reply brief or argument, and stood ready to assist the Court.

Proponents, through their attorney, May 19 filed a petition as by the 'Peoples Right to Work Committee, Inc.,' a non-profit corporation organized by: Vern E. Walquist, C. W. Burke, Craig W. Johnson, Keith H. Johnson and Ivan W. Johnson, who had signed the original initiative proposal and asked, as of June 2, an order allowing it to intervene, which order was issued at the subsequent hearing. Said Committee and representatives of proponents also filed a motion to dismiss on various grounds, challenging so far as material here, the jurisdiction of this Court to entertain this proceeding and the procedure; also a motion to strike paragraph 8 of Petitioners' petition, which is the one challenging the sufficiency of the short title, on various grounds; and paragraphs 10 and 11, which were suggestions by the Petitioners as to both short and long titles, the latter as amended not criticised now, so not considered. Also a demurrer raising the same points; all supported by an elaborate and pertinent brief approbating the short title drawn by the Attorney General.

Hearing was had June 2 as set.

We must give effect to Section 34-1809, I.C., so far as we may consistently do so, to obtain substantial justice. Stark v. McLaughlin, 45 Idaho 112, 261 P. 244; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, at page 701 et seq., 78 P.2d 105; State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; State ex rel. Anderson v. Rayner, 60 Idaho 706, 96 P.2d 244; Bel v. Benewah County, 60 Idaho 791, 97 P.2d 397; Northern Pac. Ry. Co. v. Shoshone County, 63 Idaho 36, 116 P.2d 221; Scandrett v. Shoshone County, 63 Idaho 46, 116 P.2d 225; State ex rel. Wright v. Headrick, 65 Idaho 148, 139 P.2d 761; State v. Groseclose, 67 Idaho 71, 171 P.2d 863; Keenan v. Price, 68 Idaho 423, 195 P.2d 662.

Article V, Section 2 of the Constitution vests the judicial power of the State----

'* * * in a court for the trial of impeachments, a Supreme Court, district courts, probate courts, courts of justices of the peace, and such other courts inferior to the Supreme Court as may be established by law for any incorporated city or town.'

Section 9 of the same Article confers jurisdiction upon the Supreme Court----

'* * * 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. * * * The Supreme Court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and all writs necessary or proper to the complete exercise of its appellate jurisdiction.'

Obviously this is not an appeal from a district judge or a district court, public utility commission order or order of the industrial accident board, nor any proceeding in aid of our appellate jurisdiction as such.

Section 7-202, I.C., provides:

'A writ of review may be granted by any court except a probate or justice's court, when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.'

Section 7-208, I.C., thus limits the scope of the writ:

'The review upon this writ can not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.'

In Balderston v. Brady, 17 Idaho 567, at page 575, 107 P. 493, at page 495, prohibition issued to determine whether the State Land Board had jurisdiction, i. e., authority, under the Constitution and statutes, to relinquish preferential rights to selected lands granted in our State Admission Bill, the Court stated:

'It is obvious that if the contemplated action of the Board of Land Commissioners involves the exercise of a judgment or discretion vested in them by law, then this court cannot and will not attempt to control that discretion, or in any manner interfere with or direct the action of the board. If, on the other hand, the action proposed is without authority of law, or has no legal sanction or authority, or is an attempt to act, not upon the discretion and judgment of the board, but upon a substituted judgment or discretion, or upon the judgment, discretion, and direction of some other board or body, then and in such cases this court may interrupt them and declare the law on the subject, and point out to them the legal scope within which their judgment and discretion must be exercised.' (Emphasis added.)

In Hawley v. Bottolfsen, 61 Idaho 101, 98 P.2d 634, a writ of review determined whether the Governor had regularly pursued his authority in relieving the plaintiff from his position upon the Idaho Fish and Game Commission and appointing another in his place, and examined the charges and considered them sufficient to uphold the action of the Governor in relieving the appointee of his position, stating the purpose of review is to determine primarily the law applicable to the case, rather than the facts of the case.

The facts in this case are the proposed initiative measure. Under the statute, the Attorney General is to draft, within ten words exclusive of the designation, 'Initiative Proposal For,' a distinctive title by which the measure is commonly referred to or spoken of, to be printed in the footnote margin of each sheet of the petition, i. e., the sheets to be circulated for the purpose of having them signed by the number required by Section 34-1805, I.C. Thus, this short title being printed upon these petitions to be circulated for names, under the terms of the statute, must not only be a title by which the measure is commonly referred to or spoken of, but must also be distinctive.

'Distinctive' is thus defined in Webster's International Dictionary, 1934 ed., page 756:

'Marking or expressing distinction; distinguishing, characteristic, peculiar. Having ability to distinguish; discriminating; distinct, separate; distinctive characteristic. Distinctive refers primarily to that which marks or distinguishes one thing...