Smith v. Cenarrusa

• Decision Date: 09 September 1970
• Docket Number: No. 10724,10724
• Citation: 475 P.2d 11,93 Idaho 818
• Parties: Raymon L. SMITH, on behalf of himself and all other taxpayers of the State of Idaho, Plaintiff-Respondent, v. Pete T. CENARRUSA, as Secretary of State, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 11

475 P.2d 11

93 Idaho 818

Raymon L. SMITH, on behalf of himself and all other taxpayers of the State of Idaho, Plaintiff-Respondent, v. Pete T. CENARRUSA, as Secretary of State, Defendant-Appellant.

No. 10724.

Supreme Court of Idaho.

Sept. 9, 1970.

Dissenting Opinion Oct. 5, 1970.

Robert M. Robson, Atty. Gen., and Howard F. Manly, Special Asst. Atty. Gen., Boise, for defendant-appellant.

Iver J. Longeteig, of Ambrose, Fitzgerald & Longeteig, Meridian, for plaintiff-respondent.

Samuel Kaufman, of Anderson, Kaufman, Anderson & Ringert, Boise, for Citizens for the Protection of Idaho's Constitution, amicus curiae.

Raymond L. Givens, Carl P. Burke, Boise, Eugene L. Bush, Idaho Falls, Douglas D. Kramer, Twin Falls, Russell Randall, Lewiston, Perce E. Hall, Robert M. Rowett, Mountain Home, James E. Schiller, Nampa, E. B. Smith, Boise, Robert C. Strom, Craigmont, and Lloyd J. Webb, Twin Falls, amici curiae.

SHEPARD, Justice.

The facts in this case are not disputed. We are asked to determine whether the method prescribed in our constitution for revision of the constitution is the sole and exclusive method. In actuality what we are being asked to consider and rule upon is the procedure for the adoption of a new constitution. Senate Joint Resolution 122 of the 1970 session of the Idaho Legislature prescribes a technique for revising the constitution of the state of Idaho in a manner not specifically authorized by the constitution. The plaintiff, Raymon L. Smith, brought this action seeking a declaratory judgment that Senate Joint Resolution 122 is unconstitutional and void. He also asked that the defendant Pete T. Cenarrusa, as Secretary of State, be enjoined from publishing the proposed constitution as a requisite notice preliminary to submission of that constitution to the voters of the state for approval or rejection. The district court issued judgment as prayed for by the plaintiff and defendant Cenarrusa has appealed.

In 1965 the Idaho Legislature enacted House Bill No. 280 (Chapter 317, Idaho Session Laws of 1965) which called a convention to revise or amend the constitution of this state at a time and place to be specified by the Governor but not more than 14 months following a general election in which a majority of the electors might authorize convention. The number of delegates to such convention and their qualifications and mode of election, the meeting and organization of the convention, the duties and duration of the convention and the financing therefor were also provided therein. All of the foregoing provisions of the said House Bill No. 280 were to be effective only if a majority of the electors voting in a general election authorized such a convention.

In addition to the foregoing provisions of House Bill No. 280, Secs. 11-14 thereof provided for the creation of a Commission on Constitutional Revision. The appointment and term of the 15 members of the Commission, the representation of geographical, economic and other interests within the state of Idaho, the organization and duties of the Commission, their pay and allowances and the assistance of the Legislative Council were all provided for in said House Bill No. 280. All of said provisions relating to the Constitutional Revision Commission were to become effective on July 1, 1965.

No person serving as a member of the said Commission was to be eligible for election as a delegate to the constitutional convention and the Commission was charged with making provisions for a constitutional convention in the event that one was authorized by the people of the state at a general election.

It is obvious that the 1965 session of the Idaho Legislature contemplated the calling of a constitutional convention for revision of the Idaho Constitution in the event that such was authorized by the voters of Idaho at a general election. It is equally obvious that the Commission on Constitutional Revision was to be only an adjunct and a preliminary to the proposed constitutional convention.

From the year 1965 until 1970, the legislature took no action to implement the provision of House Bill No. 280 by submitting to the voters the question of whether a constitutional convention should be called. During those years, however, the Commission on Constitutional Revision worked diligently in drafting a proposed revision of the Idaho Constitution. Information concerning its work was widely disseminated and a great many public hearings on the proposed new constitution were held both by the Commission and by the Legislative Council in various portions of the state.

The proposed revision of the Idaho Constitution was submitted by the Commission on Constitutional Revision to the second regular session of the legislature in 1970. That session of the legislature enacted Senate Bill No. 1599, which sought to amend Chapter 317 of the Laws of 1965 (House Bill No. 280) by striking all references therein to a constitutional convention and in effect converting that piece of legislation into one creating solely a Constitutional Revision Commission. It also directed the Commission, if its proposed revised constitution was approved by the legislature, to submit that proposed constitution directly to the electors of the state for approval or rejection. Senate Bill No. 1599 was, however, vetoed by Governor Samuelson.

Thereafter, Senate Joint Resolution 122 of the second regular session of the Fortieth Legislature in 1970 was passed by the requisite two-thirds majority of each house. It proposed a revised constitution for the state of Idaho (as drafted and recommended by the Commission on Constitutional Revision) and directed that the proposed revised constitution should be submitted directly to the electors of the state of Idaho at the next general election for approval or disapproval. The Secretary of State was directed to cause the proposed constitution to be published in newspapers of general circulation throughout the state of Idaho. Section 1 of said Senate Joint Resolution 122 provided:

'The Legislature of the state of Idaho does not deem it necessary to call a Constitutional Convention for the purpose of submitting a revised Constitution to the electors. This revised Constitution shall be submitted for adoption or rejection, by majority vote of the electors voting on this proposal, at the next general election to be held on the Tuesday after the first Monday in November, 1970.'

The focus of the dispute herein is Art. XX of the Idaho Constitution which provides:

' § 1. How amendmants may by proposed.-Any amendment or amendments to this Constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of general circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this Constitution.

' § 2. Submission of several amendmants.-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.

' § 3. Revision or amendment by convention.-Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall at the next session provide by law for calling the same; and such convention shall consist of a number of members, not less than double the number of the most numerous branch of the legislature.

' § 4. Submission of revised constitution to people.-Any Constitution adopted by such convention, shall have no validity until it has been submitted to, and adopted by, the people.'

The trial court held, and it is not disputed herein, that the proposed changes to be made in the Idaho Constitution by Senate Joint Resolution 122 are a revision rather than an amendment. Senate Joint Resolution 122 proposes a massive and radical change in the constitution and there can be no basis for characterizing these changes as mere amendments. The requirements of Secs. 1 and 2 of Art. XX of the Idaho Constitution are thus inapplicable to this controversy. Thus, the central question is whether Sec. 3 of Art. XX of the Idaho Constitution makes revision by a constitutional convention the exclusive method of revising the Idaho Constitution.

The respondent herein argues that McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909), governs the question before us. In McBee the validity of amendments to the Idaho Constitution were challenged because they had not been submitted individually as Sec. 2 of Art. XX of the Idaho Constitution seems to require. The court, in holding those amendments to be invalid, stated:

'* * * when the electors of the state have incorporated into the fundamental law the particular manner in which the same (the constitution) may be altered or changed, then any course which disregards that express will is a direct violation of that fundamental law.'

Holding as we have that this case involves not amendments but a massive revision of our constitution, we do not believe the language in McBee applicable to the case at bar.

Respondent also relies upon the case of McFadden v. Jordan, 32 Cal.2d 330, 196 P.2d 787 (1948). Although respondent's position finds support in some of the language therein, the factual...