State ex rel. Graham v. Enking, 6560

CourtUnited States State Supreme Court of Idaho
Writing for the CourtHOLDEN, C. J.
Citation59 Idaho 321,82 P.2d 649
Docket Number6560
Decision Date30 August 1938
PartiesSTATE ex rel. GUY GRAHAM, Commissioner of Agriculture of the State of Idaho, and HARRY E. YOUNG, L. R. HALVERSON, VICTOR SMITH, J. P. MARSHALL, GEORGE AMES, R. H. YOUNG and E. A. WHITE, Being and Constituting IDAHO FRUIT AND VEGETABLE ADVERTISING COMMISSION, Respondents, v. MYRTLE P. ENKING, State Treasurer of the State of Idaho, WILLIAM ROSE, G. W. BROWNING and J. K. KELLOGG, Appellants

82 P.2d 649

59 Idaho 321

STATE ex rel. GUY GRAHAM, Commissioner of Agriculture of the State of Idaho, and HARRY E. YOUNG, L. R. HALVERSON, VICTOR SMITH, J. P. MARSHALL, GEORGE AMES, R. H. YOUNG and E. A. WHITE, Being and Constituting IDAHO FRUIT AND VEGETABLE ADVERTISING COMMISSION, Respondents,
v.

MYRTLE P. ENKING, State Treasurer of the State of Idaho, WILLIAM ROSE, G. W. BROWNING and J. K. KELLOGG, Appellants

No. 6560

Supreme Court of Idaho

August 30, 1938


FRUIT AND VEGETABLE ADVERTISING COMMISSION-STATUTES-TITLE OF ACT, SUFFICIENCY OF-STATUTORY CONSTRUCTION-CONSTITUTIONAL LAW - TAXATION - LICENSES - MANDAMUS-ISSUANCE OF WRIT-VERIFIED PETITION-APPEAL-QUESTIONS CONSIDERED.

1. The purpose of the title of a statute is to indicate to the lawmaker and the citizen as well, the character and subject matter of the legislation proposed by the act. (Const., art. 3, sec. 16.)

2. The title of a legislative act should indicate the general scope and purpose of the legislative enactment and be sufficiently comprehensive to give notice of the proposed legislation, should embrace but one subject and matters properly connected therewith, and the subject should be expressed in the title. (Const., art. 3, sec. 16.)

3. The title of an act which recited that it was to promote the prosperity and welfare of Idaho "fruit and vegetable industry" by conducting an advertising campaign was not false and misleading merely because the act dealt with only apples, prunes, [59 Idaho 322] potatoes, and onions, as respects constitutionality of the act. (Sess. Laws, 1937, chap. 252.)

4. The title of an act which recited that a tax was to be levied on fruits and vegetables and thereafter again recited that a tax was to be levied on fruits and vegetables, to be collected by the dealer from the grower, was not misleading and did not signify the imposition of an additional or double tax, as respects constitutionality of the act. (Sess. Laws, 1937, chap. 252.)

5. The title of an act imposing tax on fruits and vegetables produced in the state, which recites that the sum of $30,000 is appropriated to the Idaho Fruit and Vegetable Advertising Commission from the state treasury, was not misleading, as respects constitutionality of the act, where body of the act appropriates the total proceeds of tax levy and also lends to the commissioner of agriculture the sum of $30,000. (Sess. Laws, 1937, chap. 252, secs. 12, 13, 17.)

6. Where statute in one section levied a tax of one cent on each 100-pound unit of apples, prunes, potatoes and onions shipped within the state, and in another section stated that a tax of one cent per 100 pounds on all fruits and vegetables covered by the act was imposed, to be collected by the dealer or handler thereof, statute was merely repetitious, and imposed only one tax of one cent per 100 pounds, as against contention that two separate taxes were imposed and that statute was therefore unconstitutional. (Sess. Laws, 1937, chap. 252, secs. 11, 14.)

7. The title of the act levying a tax on certain fruits and vegetables produced in and shipped from Idaho is amply sufficient to indicate the general scope and purpose of the statute, is sufficiently comprehensive to give notice of the proposed legislation, and is not broader in terms and scope than the body of the act. (Sess. Laws, 1937, chap. 252; Const., art. 3, sec. 16.)

8. The tax imposed by statute on certain fruits and vegetables produced in Idaho was a tax on the privilege of turning such fruits and vegetables into the primary channels of trade on the basis of one cent per box, and not upon the fruits and vegetables. (Sess. Laws, 1937, chap. 252.)

9. The tax imposed by statute on fruits and vegetables produced in Idaho is an excise tax and not a "property tax" and does not violate constitutional rules of equality, uniformity, or due process, "excise tax" being any tax not falling within the classification of a poll or property tax and embracing every form of burden not laid directly upon persons or property. (Sess. Laws, 1937, chap. 252.)

10. The tax imposed by statute on each 100-pound unit of apples, prunes, potatoes and onions shipped from or within the [59 Idaho 323] state is not a burden on interstate commerce. (Sess. Laws, 1937, chap. 252.)

11. The tax imposed on each 100-pound unit of apples, prunes, potatoes and onions shipped from or within the state, which was levied for purpose of providing a fund for advertising such fruits and vegetables is valid and for a public purpose, since the protection and promotion of the apple, prune, potato and onion industry in Idaho is a matter of public concern to Idaho. (Sess. Laws, 1937, chap. 252.)

12. In mandamus proceeding, the filing of a verified petition satisfied statutory requirement that the writ must be issued upon affidavit. (I. C. A., sec. 13-303.)

13. An appellate court will not consider any question not put in issue by the pleadings.

14. Where statute creating fruit and vegetable advertising commission provided that commissioners should be appointed from each of four districts, boundaries of three of the districts were definitely fixed, and other district was merely designated as north of the Salmon River, the remaining territory of the state not included in the three defined districts was to be included in the indefinite district, as against contention that statute was discriminatory and void in omitting a substantial portion of the state from its operation. (Sess. Laws, 1937, chap. 252, sec. 3.)

15. The cardinal principle of statutory construction is to save and not to destroy.

16. Where a statute has two possible interpretations, one of which would render it unconstitutional and the other valid, court is under duty to adopt the valid interpretation, and this rule applies where its application will avoid any serious doubt.

17. Under statute creating the fruit and vegetable advertising commission and levying tax on fruits and vegetables produced in Idaho, provision that state "treasurer" should issue warrants for salaries and expenses was a mere clerical error and could be interpreted as "auditor" the word intended by the legislature, since for the treasurer both to draw and pay warrants would contravene the state's established system of checks and balances. (Sess. Laws, 1937, chap. 252, sec. 13; I. C. A., secs. 65-901, 65-1101; Const., art. 4, sec. 1.)

18. In mandamus proceeding to compel state treasurer to pay warrant issued to a member of the fruit and vegetable advertising commission under statute creating the commission and levying tax on fruits and vegetables shipped from or within the state, wherein parties stipulated that question of constitutionality of statute was the only question to be decided, intervening taxpayers who were unaware, at time of stipulation, that commission was [59 Idaho 324] appointed before statute became effective and who claimed that appointment was therefore void, were not entitled to be relieved from the stipulation, since commissioners were de facto, if not de jure, officers. (I. C. A., sec. 3-202; Sess. Laws, 1937, chap. 252, secs. 3, 11, 13, 14.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

From a judgment granting a peremptory writ of mandate, defendants appeal. Affirmed.

Affirmed.

J. W. Taylor, Attorney General, and Lawrence B. Quinn, Assistant Attorney General, and Ariel L. Crowley, for Appellants.

The petition is not an affidavit within the meaning of sec. 13-303, I. C. A., hence will not support mandamus when challenged; nor is it sufficiently verified to serve as an affidavit. (Sec. 16-801, I. C. A.; Farmers State Bank v. Gray, 36 Idaho 49, loc. cit. 59, 210 P. 1006; Lewis v. Mountain Home Co-op. Irr. Co., 28 Idaho 682, 156 P. 419; Gawtry v. Doane, 51 N.Y. 84; State v. Peterson, 29 Wash. 571, 70 P. 71.)

The advertising commission is not a party legally interested in the relief sought. The real party interested is not a party here. Under the rule that the petitioner must have a clear legal right to the relief sought, mandamus is not proper here. (38 C. J. 847, sec. 352, and notes 67 to 75; Goodwyn v. Sherer, 145 Ala. 501, 40 So. 279; Heckart v. Roberts, 9 Md. 41; Ohlson v. Durfrey, 82 Miss. 213, 33 So. 973; State v. Fraker, 166 Mo. 130, 65 S.W. 720.)

"The legislature cannot in the title of the act use language which in the ordinary and usual acceptation of the terms thereof would imply and convey one meaning and in the body of the act declare that such language means the reverse." ( Turner v. Coffin, 9 Idaho 338, 74 P. 962; Northwestern Mfg. Co. v. Wayne, 58 Mich. 381, 25 N.W. 372, 373, 55 Am. Rep. 693; In re Edwards, 45 Idaho 676, 266 P. 665; Comm. v. Curry, 6 Pa. Dist. 143, 18 Pa. Ct. 513; 59 C. J. 810 [59 Idaho 325] (adopting language of Turner v. Coffin, supra); State v. Dolan, 13 Idaho 693 (702), 92 P. 995, 14 L. R. A., N. S., 1259.)

An act which omits a substantial portion of the state from its operation thereby becomes local, discriminatory and void. ( In re Crane, 27 Idaho 671 (690), 151 P. 1006, L. R. A. 1918A, 942; Jones v. Power County, 27 Idaho 656 (665), 150 P. 35.)

The taxes imposed by this act are property taxes levied otherwise than by valuation, and are void. (Chapman v. Ada County, 48 Idaho 632, 284 P. 259, see annotation in 103 A. L. R.; C. V. Floyd Fruit Co. v. Florida Citrus Com., 128 Fla. 565, 175 So. 248, 112 A. L. R. 562; Thompson v. McLeod, 112 Miss. 383, 73 So. 193, Ann. Cas. 1918A, 674, L. R. A. 1918C, 893; Eastern Gulf Oil Co. v. Kentucky State Tax Com., 17 F.2d 394; Hanley v. Federal Min. & Smelt. Co., 235 F. 769; Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307.)

Maurice H. Greene and George Donart, for Respondents.

An act which embraces but one general subject and matters properly connected therewith, or germane thereto, which general subject is expressed in the title, though in...

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38 practice notes
  • Lyons v. Bottolfsen, 6763
    • United States
    • United States State Supreme Court of Idaho
    • March 21, 1940
    ...it fail to express that subject in the title in violation of section 16 of article 3 of the Constitution. (State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105; Boise City v. Baxter, 41 Idaho 368, 238 P. 1029; Pioneer Ir......
  • Gerawan Farming, Inc. v. Lyons, No. S080610.
    • United States
    • United States State Supreme Court (California)
    • November 27, 2000
    ...(E.g., C.V. Floyd Fruit Co. v. Florida Citrus Commission (1937) 128 Fla. 565, 175 So. 248;28 State v. Enking 101 Cal.Rptr.2d 516 (1938) 59 Idaho 321, 82 P.2d 649; Miller v. Michigan State Apple Commission (1941) 296 Mich. 248, 296 N.W. 245;29 Louisiana State Department of Agriculture v. Sib......
  • Eberle v. Nielson, No. 8541
    • United States
    • United States State Supreme Court of Idaho
    • February 13, 1957
    ...Chambers v. McCollum, 47 Idaho 74, 272 P. 707; City of Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245; State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; State v. Peterson, 61 Idaho 50, 97 P.2d 603; Big Wood Canal Co. v. Unemployment Comp. Div. of Ind. Acc. Bd., 63 Idaho 785, 126 P......
  • Petition of Idaho State Federation of Labor, No. 8160
    • United States
    • United States State Supreme Court of Idaho
    • June 30, 1954
    ...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.......
  • Request a trial to view additional results
38 cases
  • Lyons v. Bottolfsen, 6763
    • United States
    • United States State Supreme Court of Idaho
    • March 21, 1940
    ...it fail to express that subject in the title in violation of section 16 of article 3 of the Constitution. (State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105; Boise City v. Baxter, 41 Idaho 368, 238 P. 1029; Pioneer Ir......
  • Gerawan Farming, Inc. v. Lyons, No. S080610.
    • United States
    • United States State Supreme Court (California)
    • November 27, 2000
    ...(E.g., C.V. Floyd Fruit Co. v. Florida Citrus Commission (1937) 128 Fla. 565, 175 So. 248;28 State v. Enking 101 Cal.Rptr.2d 516 (1938) 59 Idaho 321, 82 P.2d 649; Miller v. Michigan State Apple Commission (1941) 296 Mich. 248, 296 N.W. 245;29 Louisiana State Department of Agriculture v. Sib......
  • Eberle v. Nielson, No. 8541
    • United States
    • United States State Supreme Court of Idaho
    • February 13, 1957
    ...Chambers v. McCollum, 47 Idaho 74, 272 P. 707; City of Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245; State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; State v. Peterson, 61 Idaho 50, 97 P.2d 603; Big Wood Canal Co. v. Unemployment Comp. Div. of Ind. Acc. Bd., 63 Idaho 785, 126 P......
  • Petition of Idaho State Federation of Labor, No. 8160
    • United States
    • United States State Supreme Court of Idaho
    • June 30, 1954
    ...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.......
  • Request a trial to view additional results

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