Utter v. Moseley

• Decision Date: 14 April 1909
• Citation: 100 P. 1058,16 Idaho 274
• Parties: STEPHEN UTTER, Plaintiff, v. DAVID H. MOSELEY, W. H. THOMPSON and A. P. BURNS, Composing the Board of County Commissioners for Ada County, Defendants
• Court: Idaho Supreme Court

100 P. 1058

16 Idaho 274

STEPHEN UTTER, Plaintiff, v. DAVID H. MOSELEY, W. H. THOMPSON and A. P. BURNS, Composing the Board of County Commissioners for Ada County, Defendants

Supreme Court of Idaho

April 14, 1909

CONSTITUTIONAL AMENDMENTS-CONFLICT-ADOPTION.

1. Where a section of the constitution is amended at the same time by two different amendments and the amendments adopted are directly in conflict, and it is impossible to determine which should stand as a part of the constitution or to reconcile the same, then they must both fail.

2. If however, one of such proposed amendments is not submitted in accordance with the provisions of the constitution and is not adopted or made a part of the constitution, and the other amendment is regularly submitted in accordance with the provisions of the constitution and adopted, then there can be no conflict between two amendments, and the latter will not fail because of conflict.

3. The rule of law, that where two conflicting amendments are adopted at the same time, they both must fail, is based upon the assumption that both amendments are regularly submitted and adopted in accordance with the provisions of the constitution and are amendments to the constitution.

4. A question submitted as a constitutional amendment does not become a constitutional amendment unless submitted and adopted in accordance with the provisions of the constitution.

(Syllabus by the court.)

An original proceeding in this court for a writ of mandate.

Writ of mandate issued. No costs awarded.

Cavanah & Blake, for Plaintiff, cite no authorities.

D. C McDoughall, Attorney General, John F. MacLane, J. H Peterson, and C. P. McCarthy, County Attorney, for Defendants.

A decision made by a court in the regular course of the consideration of a case is not to be regarded as dictum merely because the case might have been disposed of on a different ground, or because there is some other point in the case which disposes of the whole controversy. (Florida R R. Co. v. Schutte, 103 U.S. 118, 26 L.Ed. 327; Kane v. McCown, 55 Mo. 181; Clark v. Thomas, 51 Tenn. 419, 421.)

The legislature, subsequent to the decision in McBee v. Brady, 15 Idaho 761, 100 P. 97, passed Senate Joint Resolution No. 6, which proposed the resubmission to the people at the next general election of the question whether art. 18, sec. 6, of the constitution should be so amended as to authorize the assessors to employ clerical assistance. Thus it appears that the decision of this court in the McBee case has been acquiesced in and acted upon by the legislature, a co-ordinate department of the state government. This fact, we contend, invokes the application of the doctrine of stare decisis. (Fisher v. Horicon Iron Mfg. Co., 10 Wis. 351.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

This is an original application addressed to this court praying for a writ of mandate to compel the board of county commissioners of Ada county to hear evidence to be offered by plaintiff for the purpose of determining the necessity for deputies and clerical assistance in the office of plaintiff, assessor and ex officio tax collector for said Ada county. An answer was filed by defendants and the facts are stipulated.

The question presented is: Was the amendment submitted to the electors of this state at the regular November election, 1908, under House Joint Resolution No. 10, and designated as the assessor amendment, adopted by the electors of the state and has the same become a part of the constitution of this state?

The state board of canvassers, upon canvassing the returns of election upon said amendment, declared said amendment carried, and the conclusion of such board is not called in question in this proceeding.

The contention of the defendant is that at the same election there was submitted to the electors a proposed amendment to the same section of the constitution under House Joint Resolution No. 3 and designated as the judicial amendment; and that the vote on such amendment was canvassed by the state board of canvassers and such amendment declared carried, that the judicial amendment above referred to is in conflict with and contradictory to the assessor amendment, and both amendments having been submitted and voted upon at the same time, it is impossible to determine which of said amendments was adopted by the electors of the state, and because of such conflict, under the rule announced by this court in the case of McBee v. Brady, 15 Idaho 761, 100 P. 97, both must fail. The judicial amendment submitted under House Joint Resolution No. 3 was under consideration in the case of McBee v. Brady, supra, and in discussing the conflict between the judicial amendment and the assessor amendment, this court said:

"It is next urged by counsel for defendant that sec. 6, art. 18, included as a part of said proposed amendment, is in conflict with the same section and article covered by a proposed amendment thereto by joint resolution No. 10 passed by the legislature at the same session, and submitted and voted upon by the electors of the state at the same election and by them adopted. (Sess. Laws 1907, p. 585.) Sec. 6 as amended by the amendment submitted by joint resolution 3 changed such section by omitting therefrom the words "probate judge." The amendment submitted under joint resolution No. 10 amended said section by adding thereto the word "assessor" among the names of the officers who were empowered to appoint deputies and clerical assistants by the board of county commissioners. Resolution No. 3 submitted sec. 6, amended by the omission of the words "probate judge," as the amendment; while resolution No. 10 submitted sec. 6 with the words "probate judge" therein, and also the word "assessor" added as the amendment. Thus the first amendment contains the section with the words "probate judge" out and the word "assessor" out, while the second amendment contains the section with the words "probate judge" in, and the word "assessor" in. Both of these amendments were submitted and voted upon at the same election, and both adopted. Thus, we have sec. 6, art. 18, amended by omitting the words "probate judge" therefrom, and no mention made of the office of assessor as an officer who should have deputy or clerical assistance; and also by retaining the words "probate judge," and also inserting the word "assessor" as an officer who might be authorized to appoint deputies.

The conflict in the two amendments was one of the questions urged in that case why the judicial amendment submitted by House Joint Resolution No. 3 should fail; and it was in this connection that the court in that case discussed the question of conflict, and announced the rule:

"The provisions of the section thus amended are directly in conflict, and, taking the section as a whole as the amended section, it is impossible to determine which of these two amended sections should stand as a part of the constitution of this state. ...