State Water Conservation Board of State v. Enking

• Decision Date: 27 May 1936
• Docket Number: 6325
• Citation: 56 Idaho 722,58 P.2d 779
• Parties: STATE WATER CONSERVATION BOARD OF THE STATE OF IDAHO and DOROTHY JENNY, Plaintiffs, v. MYRTLE P. ENKING, Treasurer of the State of Idaho, Defendant
• Court: Idaho Supreme Court

58 P.2d 779

56 Idaho 722

STATE WATER CONSERVATION BOARD OF THE STATE OF IDAHO and DOROTHY JENNY, Plaintiffs, v. MYRTLE P. ENKING, Treasurer of the State of Idaho, Defendant

No. 6325

Supreme Court of Idaho

May 27, 1936

STATE-DEPARTMENTS OF GOVERNMENT-STATE LAND BOARD-BOARD OF EXAMINERS-WATER GUARANTY OF RIGHTS-STATE INDEBTEDNESS-STATE CREDIT-STATUTES-CONSTITUTIONAL CONSTRUCTION-UNAUTHORIZED DELEGATION OF POWER-SEPARABILITY OF STATUTES.

1. Statute creating state water conservation board and authorizing issuance of unlimited amount of 40-year bonds held violative of Constitution limiting indebtedness (Sess Laws 1935, 1st Ex. Sess., chap. 60, sec. 6; Const., art. 8 secs. 1, 3).

2. Statute creating state water conservation board held violative of constitutional prohibition against special laws either creating any corporation, or granting or amending any charter of incorporation, except for "municipal charitable, educational, penal or reformatory corporations" (Sess. Laws 1935, 1st Ex. Sess., chap. 60; Const., art. 3, sec. 19, par. 31; art. 11, sec. 2).

3. Statute creating state water conservation board authorized to condemn water rights and appropriate unappropriated public waters held violative of constitutional guaranty of right to divert and appropriate unappropriated waters, assuming that, as contended, board was arm of state performing governmental functions (Sess. Laws 1935, 1st Ex. Sess., chap. 60, secs. 4, 16; Const., art. 15, sec. 3).

4. Statute creating state water conservation board authorized to issue bonds payable from special fund accumulated from water rates, etc., and making preliminary appropriation of $50,000, held unconstitutional because intended to place credit of state morally and in some degree financially back of enterprise, and, even if appropriation was merely loan, it violated constitutional prohibition against loan of state's credit in aid of any individual or corporation (Sess. Laws 1935, 1st Ex. Sess., chap. 60, secs. 6, 8 (d), 17; Const., art. 8, secs. 1, 2).

5. Claims of state water conservation board, if constituting arm of state performing only governmental functions, must be examined and approved by constitutional board of examiners (Sess. Laws 1935, 1st Ex. Sess., chap. 60; Const., art. 4, sec. 18).

6. Statute creating state water conservation board empowered to sell, lease or otherwise dispose of property, if contemplating that property acquired by board exercising governmental functions should become state property, held unconstitutional because divesting board of land commissioners of control and disposition of public lands or of right of protection, sale or rental of state lands (Sess. Laws, 1st Ex. Sess., chap. 60, secs. 4, 12, 15; Const., art. 9, secs. 7, 8).

7. Legislature held empowered to create board or department, such as state water conservation board, and arm it with administrative and governmental powers, such as power to make surveys and investigations as to water supply, waste and loss, and methods of conservation (Sess. Laws 1935, 1st Ex. Sess., chap. 60).

8. Where purpose of statute fails, incidental powers conferred, as on board or department created by statute, for mere purpose of operating unconstitutional part, must also fail.

9. Where governmental powers rightfully conferred by statute creating state water conservation board were merely incidental and preliminary to essential purposes of act and to proprietary, uncon- stitutional powers intended to be granted, whole act failed, notwithstanding separability clause (Sess. Laws 1935, 1st Ex. Sess., chap. 60, sec. 21).

Original proceeding for Writ of Mandamus. Writ denied.

Writ denied.

T. L. Martin, Sidman I. Barber and R. B. Scatterday, for Plaintiffs.

Unless so interdependent and inseparably connected that they cannot be divided without defeating all intent of the legislature, the presence of certain invalid provisions will not defeat the act. (In re Edwards, 45 Idaho 676, 266 P. 665; see section 21 of the act; Stark v. McLaughlin, 45 Idaho 112, 261 P. 244; Gillesby v. Board of County Commrs., 17 Idaho 586, 107 P. 71.)

Even if considered exercising corporate power, the board is not such a corporation as referred to in article 11, section 3, or article 3, section 19. (San Francisco v. Spring Valley Water Works, 48 Cal. 493, 518; Webb v. Port Commission of Morehead City, 205 N.C. 663, 172 S.E. 377; Napa State Hospital v. Dasso, 153 Cal. 698, 96 P. 355, 15 Ann. Cas. 910, 18 L. R. A., N. S., 643; Reclamation Dist. No. 70 v. Sherman et al., 11 Cal.App. 399, 105 P. 277.)

Any lands or water to which the board might take title under the act are not "Public lands" within the meaning of Constitution, article 9, section 7.

The act authorizes no expenditure of state moneys beyond the $ 50,000 appropriated for administrative expenses. (Laws 1935, Ex. Sess., chap. 60.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Defendant.

Chapter 60, First Extraordinary Session of 1935, creates a private corporation in violation of Constitution, article 3, section 19 and article 11, section 2. (Jackson v. Gallet, 39 Idaho 382 (393), 228 P. 1068; In re Edwards, supra; 1 Jones' Blackstone, sec. 645; Magil v. Brown, 16 F. Cas. 8952.)

The exclusive control, direction and disposition of the proprietary public lands of the state are vested in the state board of land commissioners. (Const., art. 4, sec. 16; art. 9, sec. 7; Barber Lumber Co. v. Gifford, 25 Idaho 654, 139 P. 557; East Side Blaine etc. Assn. v. State Board of Land Commrs., 34 Idaho 807, 198 P. 760.)

The state may not appropriate public unappropriated waters; that is an individual right. (Const., art. 15, sec. 3; Wilterding v. Green, 3 Idaho 773 (1896), 45 P. 134; Speer v. Stephenson, 16 Idaho 707, 102 P. 365; Idaho Power, etc., v. Stephenson, 16 Idaho 418, 101 P. 821.)

If provisions of a statute are so dependent upon each other that they cannot be divided without defeating the purpose of the act, the entire act will fall. (Epperson v. Howell, 28 Idaho 338, 154 P. 621.)

The act contemplates extension of credit of the state to private individuals, etc., and is void. (Const., art. 8, sec. 2; Atkinson v. Board of County Commrs., 18 Idaho 282, 108 P. 1046, 28 L. R. A., N. S., 412; Wyscaver v. Atkinson, 37 Ohio St. 80; Walker v. Cincinnati, 21 Ohio St. 14, 8 Am. Rep. 24.)

The inclusion in a statute of a provision for amortization and for absence of liability in general except as to a special fund will not relieve the act from its character as violative of Const., art. 8, sec. 1.

James R. Bothwell, Walters, Parry & Thoman and O. R. Baum, Amici Curiae.

AILSHIE J. Givens, C. J., Morgan, J., and HOLDEN, J., Concurring. Budge, J., dissents.

OPINION

AILSHIE, J.

This is an original mandamus proceeding prosecuted by the State Water Conservation Board and one of its employees to compel the State Treasurer to pay a warrant drawn upon the fund appropriated by chap. 60 of the 1935 First Extraordinary Session Laws, which created the Board and prescribed the duties and purposes for which it was created.

The State Treasurer has answered the petition by alleging that the act is unconstitutional. It is contended by the Attorney General, who represents the Treasurer, that the act violates the following enumerated provisions of the state constitution: Art. 1, secs, 2, 18, 21; art. 3, secs. 16, 19; art. 4, secs. 9, 18; art. 5, sec. 13; art. 7, secs. 2, 11, 13; art. 8, secs. 1, 2; art. 9, sec. 7; art. 11, secs. 2, 12, 15; art. 15, secs. 2, 3, 4, 5.

It appears that the members of the Board have been appointed and the Board has been organized and has held meetings and performed some preliminary work.

Our examination of the questions presented satisfies us that it will suffice, for the purposes of this opinion, to consider only the predominant issues which confront us in this case. Defendant has questioned the procedure pursued by the plaintiffs herein but we have not deemed it important to consider or pass upon those questions in this case.

It is contended by the Board that it "is an administrative arm or instrumentality of the state--not a corporation; and especially not a corporation within the purview of Art. 3, Sec. 19 or Art. 11, Sec. 2, of the Constitution." Counsel argue that the "Board" is a mere department of the state devoted to the discharge of "purely governmental functions."

The defendant, State Treasurer, on the other hand contends that the act is an attempt to create a corporation in violation of sec. 2, art. 11, and also in violation of paragraph 31 of sec. 19, art. 3 of the Constitution, which prohibits the legislature from "creating any corporation." Defendant also insists that the powers conferred on the Board are not governmental. An examination of the act (chap. 60, 1935 First Extra. Sess. Laws, p. 162) will disclose whether the powers and immunities conferred upon the Board, which is named as the "State Water Conservation Board" and is designated by the act as "Board," are governmental and administrative powers or are proprietary and corporate powers. To that end we must analyze the act which is entitled as follows:

"An act providing for the creation of the State Water Conservation Board, prescribing its powers and duties providing for the construction, operation and maintenance of a system of works for the conservation, development, storage, distribution and utilization of water, and for the acquisition of property necessary therefor, authorizing the issuance of water conservation revenue bonds of the state payable solely and exclusively from the revenues of such works and the funds received from the sale or disposal of water and from the operation, lease, sale or other disposition of the works,...