Sabin v. Curtis

• Decision Date: 18 May 1893
• Citation: 32 P. 1130,3 Idaho 662
• Parties: SABIN v. CURTIS, COUNTY TREASURER
• Court: Idaho Supreme Court

32 P. 1130

3 Idaho 662

SABIN v. CURTIS, COUNTY TREASURER

Supreme Court of Idaho

May 18, 1893

CONSTITUTIONAL LAW-STATUTE CONSTRUED.-The act creating Bannock county (2d Sess. Laws, p. 170) is not in conflict with the provisions of section 19, article 3 of the constitution.

POWER OF LEGISLATURE-AUTHORITY OF GOVERNOR TO APPOINT COUNTY OFFICERS.-The legislature has power to create new counties and may authorize the governor to appoint county officers therefor to serve until the election of county officers at the first biennial election held thereafter, and until such officers so elected qualify, as by law required.

LEGISLATIVE REPRESENTATION.-Said act does not deprive Bannock county of representation. It remains a part of the Bingham county representative district and a part of the district composed of Bingham, Logan and Alturas counties, and its electors are entitled to vote for the same number of representatives as they were prior to the creation of Bannock county.

SAME-NOT AN APPORTIONMENT LAW.-The act creating Bannock county is not an apportionment law in any sense, and neither grants nor takes away legislative representation from said county, nor changes the boundaries of any senatorial or representative district.

SENATORIAL DISTRICTS NOT CHANGED.-Said act does not segregate the eleventh senatorial district. By the creation of Bannock county the tenth and eleventh senatorial districts are in no wise changed. The electors of Bannock county have the same right in the election of senators in said districts as they had prior to the creation of said county.

Mandamus to compel the treasurer of Bingham county to pay over certain funds claimed by Bannock county. Writ granted.

(Syllabus by the court.)

PETITION for writ of mandate by treasurer of Bingham County.

Plaintiff granted, and writ issued, costs in favor of the plaintiff.

Stewart & Deitrich, for Plaintiff.

It is incumbent on those who assail a statute on the ground of invalidity to make out a clear case of legislative usurpation. (Baugher v. Nelson, 9 Gill, 299, 52 Am Dec. 697; Santo v. State, 2 Iowa, 165, 63 Am. Dec. 506; Olmstead v. Camp, 33 Conn. 532, 89 Am. Dec. 228.) An act is not invalid because it abridges the exercise of the privilege of local self-government in a particular in which such privilege is not guaranteed by any provision of the constitution. (Commonwealth v. Plaisted, 148 Mass. 375, 12 Am. St. Rep. 566, 19 N.E. 224.) Nor even on the ground that it violates fundamental principles of representative government, unless it comes clearly into conflict with some express constitutional provision, or with one necessarily implied in that instrument. (People v. Gallagher, 4 Mich. 244; People v. Manhaney, 13 Mich. 500.) The constitution itself must be looked to in determining the validity of the legislative act. (Sharpless v. Mayor, 21 Pa. St. 147, 164, 59 Am. Dec. 759, and note.) Act must violate constitution clearly, palpably, plainly and in such manner as to leave no doubt or hesitation on our minds. (Sharpless v. Mayor, supra; People v. Richmond, 16 Colo. 274, 26 P. 929; 3 Am. & Eng. Ency. of Law, 674; Williamson v. Williamson, 3 Smedes & M. 715, 41 Am. Dec. 636; Tate v. Bell, 4 Yerg. 202, 26 Am. Dec. 221.) It should be manifestly unconstitutional, a clear necessity, a plain and obvious conflict. (Lane v. Dorman, 3 Scam. 238, 36 Am. Dec. 543; Louisville v. Hyatt, 2 B. Mon. 177, 36 Am. Dec. 594.) Case should be free from rational doubt (State v. Reid, 1 Ala. 612, 35 Am. Dec. 44); clear and free from doubt (Cook v. Portland, 20 Or. 582, 27 P. 263; Richards v. Raymond, 92 Ill. 612, 34 Am Rep. 151; Carpenter v. People, 8 Colo. 116, 5 P. 828; Clarke v. Irwin, 5 Nev. 111; Stocking v. State, 7 Ind. 325; State v. Cunningham, 181 Wis. 440, 51 N.W. 737); beyond a reasonable doubt. (Ogden v. Saunders, 12 Wheat. 270; Cooley's Constitutional Limitations, 216, and cases; Endlich on Interpretation of Statutes, 524.) To doubt is to sustain the act. (Carpenter v. People, supra.) We think on close scrutiny the court will find not only that the law is valid, but that the appointment of the officers under the law is also good. "Each county shall be entitled to one representative," may be a self-executing provision. The argument of defendant assumes that this proviso means: "No county shall be left without at least one representative." He says this law violates this provision because it leaves Bannock without one. Now every negative and prohibitory provision in a constitution is self-executing. (Cooley's Constitutional Limitations, 99; Law v. People, 87 Ill. 385.) And so, often, are affirmative provisions. (State v. Weston, 4 Neb. 216; People v. Hoge, 55 Cal. 617; Willis v. Mabon, 48 Minn. 140, 31 Am. St. Rep. 626, 50 N.W. 1111; People v. Bradley, 60 Ill. 395; People v. McRoberts, 62 Ill. 40.) A county carved out of a representative district remains a part of that district until the next apportionment. (Bay Co. v. Bullock, 51 Mich. 544, 16 N.W. 897; Evans v. Dudley, 1 Ohio St. 437; State v. Campbell, 48 Ohio St. 435, 27 N.E. 885; State v. Van Duyn, 24 Neb. 586, 39 N.W. 612.)

H. W. Smith, for Defendant.

I do not claim that the legislature depends upon the constitution as a grant of power, and I admit that the constitution is to be regarded as a limitation upon the power of the legislature, nevertheless the constitution has provided that the form of county government shall be uniform and that the officers in each county shall be elected. These provisions, as in fact all provisions of the constitution, are mandatory. (See Cooley's Constitutional Limitations, 5th ed., 88, 98, 180.) The people residing within the proposed county of Bannock were by the constitution, empowered to take part in the choice of four members of the lower house. They have been absolutely deprived by this act of any voice whatever in electing representatives. McCrary on Elections, second edition, section 191, says: "the right to vote for and be represented by county and state officers being a constitutional right, it cannot be impaired or taken away by legislation; hence, it has been held upon constitutional ground that if an act for the organization of a new county was so framed that the inhabitants of such new county could not participate in the election of judges and state senator the same was unconstitutional and void." (Paine on Elections, sec. 331; Cooley's Constitutional Limitations, 5th ed., side p. 616; People v. Maynard, 15 Mich. 463; Rumsey v. People, 19 N.Y. 41.) This court cannot extend by implication the terms of the act creating Bannock county beyond what is implied as the logical consequence of the language used. (See Endlich on Interpretation of Statutes, sec. 422.) Nor can the court hold that the failure to provide for legislative representative is an omission which the court may supply. The rule of strict construction is always adopted in the matter of supplying omissions in an act of the legislature. At the most a word or short phrase is all that can be supplied. (See Endlich on Interpretation of Statutes, sec. 336; Sutherland on Statutory Construction, sec. 261.) This court held in Ballentine v. Willey, ante, p. 496, 31 P. 994, as follows: "The legislature is prohibited from passing an apportionment act which does not give substantially just and equal representation to the people of each county, based upon either the voting or entire population, or upon some other fair basis." This case, so far as Bannock county is concerned, comes squarely within the rule laid down in Lanning v. Carpenter, 20 N.Y. 447, and Parker v. State, 133 Ind. 178, 32 N.E. 836, 33 N.E. 119.

SULLIVAN, J. Huston, C. J., and Morgan, J., concur.

OPINION

SULLIVAN, J.

This is an application made by the plaintiff for a writ of mandate to compel the defendant, as treasurer of Bingham county, to pay over to the treasurer of Bannock county certain school money which is admitted to be in the hands of the defendant, as treasurer of Bingham county, and which, plaintiff claims, has been apportioned to certain school districts in Bannock county. The defendant denies the existence of Bannock county. The plaintiff contends that Bannock county was created by an act of the second legislature of Idaho, entitled "An act to create and organize the county of Bannock; to fix the county seat of said county; to provide for the apportionment of the indebtedness of Bingham county between Bingham county and Bannock county; and to provide for the apportionment of officers in said county, and for transcribing a portion of the records of Bingham county; and for other purposes." (2d Sess. Laws, p. 170.) It is contended that the act creating Bannock county is in conflict with certain provisions of the constitution, and that said county has no legal existence, for that reason. The rules by which we are guided in the determination of this case are well settled. The conflict or repugnancy between the statute and the constitutional provisions must be clear, and so contrary to each other that they cannot be reconciled. Only when the court is clearly satisfied that such conflict exists will they declare the statute unconstitutional. In cases of doubt as to the constitutionality of a statute, the statute is sustained. Courts interfere only in cases of unquestioned violation of the constitution. With these principles to guide us, we will proceed to determine the three points urged by the defendant against the constitutionality of said act.

The first point is that section 4 of said act provides that the governor, by and with the consent of the Senate, shall appoint the officers of said Bannock county. It is contended that said section 4 of said act is special legislation, and in conflict with the following provisions of section 19,...