State ex rel. Taylor v. Taylor

• Decision Date: 01 April 1938
• Docket Number: 6551
• Citation: 58 Idaho 656,78 P.2d 125
• Parties: STATE on the Relation of J. W. TAYLOR, Attorney General of the State of Idaho, Plaintiff, v. IRA J. TAYLOR, Commissioner of Public Works of the State of Idaho, and C. C. KENDALL, ED YOUNG and CHAS. DRAKE, County Commissioners of the County of Ada, State of Idaho, Defendants
• Court: Idaho Supreme Court

78 P.2d 125

58 Idaho 656

STATE on the Relation of J. W. TAYLOR, Attorney General of the State of Idaho, Plaintiff, v. IRA J. TAYLOR, Commissioner of Public Works of the State of Idaho, and C. C. KENDALL, ED YOUNG and CHAS. DRAKE, County Commissioners of the County of Ada, State of Idaho, Defendants

No. 6551

Supreme Court of Idaho

April 1, 1938

DEPARTMENT OF PUBLIC WORKS-POWERS AND DUTIES-COOPERATION WITH GOVERNMENTAL AGENCIES-STATUTES, CONSTRUCTION OF-CONSTITUTIONAL LAW.

1. The statute authorizing Public Works Commissioner to cooperate with governmental agencies for construction of secondary or feeder roads was not unconstitutional as embracing more than one subject in its title, which, after identifying act to be amended, declared that amendment related to the powers and duties of the Department of Public Works, by adding a new subdivision thereto to be known as subdivision 16, extending such powers and duties in connection with secondary and feeder roads, and, after reference to further section concluded by saying, "relating to the appropriation of moneys in the state highway fund; and declaring an emergency." (Sess. Laws, 1937, chap. 248; Const., art 3, sec. 16.)

2. The Supreme Court will take judicial notice of the regulations adopted by the Secretary of Agriculture. (I. C. A., sec 16-101.)

3. Where the terms of the statute are sufficiently definite and certain to declare the legislative purpose and the subject-matter meant to be covered by the act, the legislative function has been complied with.

4. The legislature may constitutionally leave to administrative agencies the selection of the means and the time and place of the execution of the legislative purpose, and to that end may prescribe suitable rules and regulations.

5. The statute authorizing Public Works Commissioner to cooperate with federal government, counties, highway districts, good road districts, and municipalities for the construction improvement, and maintenance of secondary or feeder roads, which was enacted with a view to benefits under federal act providing funds for feeder roads which were defined by order of Secretary of Agriculture, of which Supreme Court would take judicial notice, was not violative of Constitution as attempt to delegate legislative power, in that it failed to define what was meant by cooperate or secondary or feeder roads. (Sess. Laws, 1937, chap. 248; Act Cong., June 16, 1936, sec. 7, 49 Stat. 1521; I. C. A., sec. 16-101, Const., art. 3, sec. 1.)

6. Where two acts deal with a common subject-matter, the one which deals with it in the more particular way will prevail.

7. Under statute which attempts to amend the act appropriating highway funds generally to the use of the Department of Public Works for purpose of defraying all administrative expenses of the department, including salary of commissioner, and other expenses by extending the appropriation, by inserting words "powers and duties of the Department of Public Works as provided by law," where legislature made specific appropriations to various agencies of the department, appropriations marked the limit of expenditure for each of the agencies, and the general continuing appropriation could have no effect with respect to the specific boards, bureaus, and agencies of the Public Works Department. (Sess. Laws, 1937, chap. 248; sec. 2, amending I. C. A., sec. 39-2112, as amended; chap. 247, sec. 1.)

8. The statute attempting to amend the act appropriating highway funds generally to the use of the Department of Public Works for purpose of defraying all administrative expenses of the Department of Public Works, including salary of commissioner and salaries or wages of all subordinates and employees and other expenses, is not unconstitutional on ground that it is a blanket appropriation to all bureaus and branches of the Department of Public Works, since the continuing appropriations under the amended act extend only to the state highway department in the exercise of its powers in constructing and repairing highways as a state highway commission, and does not grant any appropriation for other salaries already provided for. (Sess. Laws, 1937, chap. 248, sec. 2, amending I. C. A., sec. 39-2112, as amended.)

APPLICATION for peremptory writ of prohibition against the defendants, prohibiting them from further proceedings in the execution of a cooperative agreement for the building of certain secondary and feeder roads. Alternative writ issued and after hearing on return writ discharged and petition dismissed.

Alternative writ discharged and petition dismissed. No costs awarded.

J. W. Taylor, Attorney General, Lawrence B. Quinn, E. G. Elliott, R. W. Beckwith and D. W. Thomas, Assistant Attorneys General, for plaintiff.

The legislature has plenary powers to establish highways in the state, except where restrained by constitutional provisions. (Elliott on Roads and Streets, p. 12, sec. 10; Gooding Highway Dist. v. Idaho Irr. Co., 30 Idaho 232, 164 P. 99; Grindell's Case, 126 Me. 287, 138 A. 66.)

Chapter 248, 1937 Session Laws, amending section 65-3101, I. C. A., as amended, by adding subdivision 16, violates section 1, article 3, Constitution of Idaho, in this: That there is a delegation of legislative power to the Department of Public Works of the State of Idaho, to wit, that the legislature has not defined what constitutes "secondary" or "feeder" roads, nor defined the word "cooperate," nor indicated, in any degree, the manner of cooperation or the extent thereof but has in all these things placed a blanket power upon the department. ( State v. Nelson, 36 Idaho 713, 213 P. 358; State v. Purcell, 39 Idaho 642, 228 P. 796, 11 Am. Jur. 957, par. 240, n. 9; Vallat v. Radium Dial Co., 360 Ill. 407, 196 N.E. 485, 99 A. L. R. 607; Brown v. Humble Oil & Ref. Co., 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A. L. R. 1107.)

Chapter 248, 1937 Session Laws, amending section 39-2112, I. C. A., as amended, violates section 1, article 3, Constitution of Idaho, in this: That it delegates to the Department of Public Works of the State of Idaho blanket authority to incur charges against the highway funds of the State of Idaho without limit and without designation of purpose or object. ( State v. Nelson, supra; State v. Purcell, supra; Vallat v. Radium Dial Co., supra.)

Willis Moffatt, Prosecuting Attorney, and Kenneth O'Leary, Deputy Prosecuting Attorney, for Defendants, County Commissioners of Ada County.

J. W. Galloway, for Defendant, Ira J. Taylor.

The legislature has plenary power except as limited by the constitution. (State v. Nelson, 36 Idaho 713, 213 P. 358; 29 C. J. 399, sec. 39.)

Chapter 248 of the 1937 Session Laws is not in violation of section 16, article 3 of the constitution of the state of Idaho, and does not embrace more than one subject and matters properly connected therewith. (Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 311, 68 P. 295, 101 Am. St. 201; Boise City v. Baxter, 41 Idaho 368, 238 P. 1029; Chambers v. McCollum, 47 Idaho 74, 272 P. 707.)

There is no improper delegation of legislative power to the Department of Public Works. (6 R. C. L., p. 179; 12 C. J. 845; Chambers v. McCollum, supra.)

Chapter 248, 1937 Session Laws, section 2, is not in violation of section 13, article 7 of the constitution of the state of Idaho, for the reason that an appropriation is definitely made. (Herrick v. Gallet, 35 Idaho 13, 17, 204 P. 477.)

AILSHIE, J. Holden, C. J., Givens, J., and Stevens, D. J., concur. MORGAN, J., Dissenting.

OPINION

AILSHIE, J.

This is an original proceeding instituted in this court by J. W. Taylor, Attorney General, in his official capacity, praying for a writ, prohibiting the Commissioner of Public Works, entering into a cooperative contract with the Commissioners of Ada county, for the construction and repair of certain sections of "secondary or feeder roads" in Ada county. The contract or cooperative agreement, the execution of which it is sought to prohibit, is as follows:

"THIS AGREEMENT, Made and entered into between the State of Idaho acting through its Department of Public Works by the Commissioner of Public Works, hereinafter called the 'State,' party of the first part, and the County of Ada, acting through its Board of County Commissioners, hereinafter called the County, party of the second part,

"WITNESSETH:

"WHEREAS, it is proposed by the respective parties to improve and build up to standard and to oil that certain County Road running approximately 7.4 miles due East from the Village of Meridian on a line one mile south of the present alignment of the Old Oregon Trail State Highway (U.S. No. 30) and also to improve and build up to standard and oil approximately four (4) miles of the County Road leading due North from the Village of Meridian,

"NOW, THEREFORE, in consideration of these premises and of the several promises to be faithfully performed by each as hereinafter set forth, the State and County do hereby mutually agree as follows:

"The County will improve the said 7.4 miles of County Road from Meridian East and the said 4 miles from Meridian North, and build up to standard and surface the same ready for oiling at its sole cost and expense. The State will furnish necessary engineering and furnish and apply necessary road oil at its sole expense.

"The County will acquire all necessary right of way on each of the above mentioned projects, and, after completion, will maintain the same to the satisfaction of the State.

"All construction work on each of said projects shall be done to the satisfaction of the State.

"Wherever in this Agreement the word 'standard' is used it means the standard prescribed by the Commissioner of Public Works.

"That certain Agreement entered into between the said pa...