Valente v. Mills
| Decision Date | 30 June 1969 |
| Docket Number | No. 10257,10257 |
| Citation | 93 Idaho 212,458 P.2d 84 |
| Parties | Pete VALENTE, Petitioner-Respondent, v. Warner C. MILLS, Commissioner of Law Enforcement, State of Idaho, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Robert M. Robson, Atty. Gen. of the State of Idaho, and Mack A. Redford, Deputy Atty. Gen., Boise, for defendant-appellant.
Thomas A. Mitchell, Coeur d'Alene, for petitioner-respondent.
This action was instituted by the respondent Pete Valente to set aside an order suspending for ninety days respondent Valente's motor vehicle operator's license, which order of suspension was issued by the appellant commissioner of law enforcement. The reason given in the order for the ninety day suspension was 'You have been convicted of DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR.'
On August 5, 1967 Valente was arrested in Coeur d'Alene for alleged violation of that city's ordinance prohibiting driving while under the influence of intoxicating liquor. After his arrest he refused to submit to a chemical test to determine the amount of alcohol in his blood. On August 11, 1967 the appellant issued a notice to Valente that his operator's license was to be suspended under the provisions of I.C. § 49-352 for his refusal to submit to a blood test. Valente sought a hearing before the commissioner, which was held on September 20, 1967. On September 29, 1967 the commissioner issued his order suspending Valente's driving privileges for a ninety day period commencing September 29, 1967. Valente appealed to the district court from that determination (I.C. § 49-334) and the district court stayed the suspension pending hearing. The stay continued until December 1, 1967 at which time Valente voluntarily dismissed the appeal and the ninety day suspension commenced to run.
On the same day, December 1, 1967, Valente forfeited a bond he had posted in the police court on the original charge of operating a motor vehicle under the influence of intoxicating liquor. On December 10, 1967 the commissioner issued another order further suspending Valente's driving privileges for an additional ninety days based on the forfeiture of the bond. In his order, the commissioner specified this second ninety day suspension was to become effective February 28, 1968, the date the previous suspension expired.
On December 19, 1967 Valente requested a hearing before the commissioner on this second suspension, contending that the commissioner was unlawfully attempting to 'tack' a subsequent suspension to the previous suspension. He argued there was no authority for such action. His request for a hearing was denied on the ground that it was not a proper subject for an administrative hearing.
Following this denial, the present action was instituted. By stipulation it was agreed that the facts set forth in Valente's petition were true, and the cause was submitted to the court on briefs. The trial court filed its memorandum opinion, and later entered findings of fact, conclusions of law and judgment ruling that portion of I.C. § 49-330(b), which provides that forfeiture of bail is equivalent to a conviction, unconstitutional. The judgment also nullified the order suspending Valente's driving license beyond February 28, 1968.
This appeal raises an issue as to the validity of I.C. § 49-330. At the outset it is to be noted that this particular statute since its origin in 1935 (S.L.1935, Ch. 88, § 30, p. 164) has been subjected to such continuous and successive 'legislative potshots' that even its existence has been brought into question. After its adoption it was amended in 1959 (S.L.1959, Ch. 236, § 1, p. 505), 1961 (S.L.1961, Ch. 190, § 1, p. 283), and twice in 1963 (S.L.1963, Ch. 265, § 1, p. 675; and S.L.1963, Ch. 362, § 2, p. 1032). Both of the 1963 amendments carried emergency clauses. In 1965, the legislature again amended the act (S.L.1965, Ch. 97, § 1, p. 180). The 1965 act in § 2 thereof provided: 'That the footnote to Section 49-330, Idaho Code, which was enacted as Chapter 265, Idaho Session Laws (1963), be, and the same is hereby repealed.' In 1967 the legislature again took a double shot at the act when it adopted S.L.1967, Ch. 353, p. 996, and also Ch. 378, p. 1113.
When two acts, each amending a previous act, are passed at the same session of the legislature and the two amendatory acts conflict with each other, but the latter act is reconcilable with the original act, for the purpose of determining the intention of the legislature, the first amendatory act will be deemed to have been superseded and repealed by the latter. Buck v. Board of Trustees, 28 Idaho 293, 154 P. 372 (1915); Peavy v. McCombs, 26 Idaho 143, 140 P. 965 (1914); 2 Sutherland, Statutory Const. § 5201, p. 532 and § 5202, p. 539 (3d ed. 1943). The two acts passed in 1967 are inconsistent with each other and hence the latter act, being Ch. 378, p. 1113, is the one to be relied upon. This latter act is the one that has been accepted by the Idaho Code Commission for publication in 9 Idaho Code, p. 69 (1967 ed.), as I.C. § 49-330. An additional problem is presented by the publisher of the 1963 Session Laws who casts doubt upon the legislative action taken in enacting Chapter 362, S.L.1963, p. 1032, which chapter originated as House Bill 268. After passage in the house it was considered by the senate and on March 12, 1963, was voted upon and passed (1963 Senate Journal, p. 751). The journal then discloses that Senator Wetherell, who voted for the bill's passage, gave notice that he might move to reconsider the vote, whereupon the president of the senate ordered the bill held at the desk for one legislative day. The journal for March 13 reflects that Senator Wetherell asked for unanimous consent that the vote by which the bill passed the senate be reconsidered. There being no objection, the president declared the bill would be reconsidered. Senator Roden then asked unanimous consent that the bill retain its place at the 'Tenth Order of Business' (motions and resolutions) for an additional day, which request was granted. The journal is then silent concerning this bill until March 15 when the following entry appears:
'At this time the president announced that House Bill No. 268, which had been held at the desk for possible reconsideration, would be transmitted to the House.
There being on objection, the Senate returned to the Tenth Order of Business.'
The journal, therefore, does not reflect whether the vote on House Bill 268 was actually reconsidered or whether, if reconsidered, the bill was passed or rejected. For this reason it is contended that the bill was not properly enacted by the legislature and is therefore void. We find it unnecessary, however, to determine whether the bill was validly enacted in 1963 for, assuming its invalidity, it is our opinion that I.C. § 49-330 is nevertheless a valid enforceable law by virtue of the 1965 and 1967 amendments to the allegedly invalid 1963 law.
Although there is some authority to the contrary, the rule of statutory construction followed by a majority of the states is that
'* * * statutes undertaking to amend prior ones which were unconstitutional merely because the legislature had failed to comply with constitutional requirements in their enactment, and not for want of power in the legislature to adopt them, * * * (are) valid laws, taking effect from their passage.' English & Scottish American Mortgage and Investment Co. v. Hardy, 93 Tex. 289, 55 S.W. 169 (1900).
To the same effect are State ex rel. Grozbach v. Common School Dist. No. 65, 237 Minn. 150, 54 N.W.2d 130 (1952); Forbes v. City of Houston, 304 S.W.2d 542 (Tex.Civ.App.1957); Board of Commissioners of City of Newark v. Grodecki, 21 N.J.Misc. 241, 33 A.2d 115 (1943); Ex Parte Hensley, 162 Tex.Cr.R. 348, 285 S.W.2d 720 (1956); Walsh v. State, ex rel. Soules, 142 Ind. 357, 41 N.E. 65 (1895); State v. City of Cincinnati, 52 Ohio St. 419, 40 N.E. 508 (1895); Allison v. Corker, 67 N.J.L. 596, 52 A. 362 (1902).
Similarly, Sutherland states in his treatise on Statutory Construction that
1 Sutherland, Statutory Construction § 1904, p. 335, (3d ed.1943), citing cases.
When the legislature amends a prior statute, it has before it the complete text of the statute to be amended. Idaho Constitution Art. 3, § 18. If the legislature enacts the amending bill according to proper procedure and the bill as amended is complete in itself and constitutional, there is an expression of legislative intent upon the subject legislated upon, and the defects in the prior statute are remedied by the proper enactment of...
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