Westerberg v. Andrus

• Decision Date: 07 June 1988
• Docket Number: No. 16910,16910
• Citation: 114 Idaho 401,757 P.2d 664
• Parties: Russell WESTERBERG, an individual; and Associated Taxpayers of Idaho, Inc., an Idaho corporation, Plaintiffs-Respondents, v. Cecil ANDRUS, as Governor of the State of Idaho; Idaho State Lottery Commission; and John Does 1-10, Defendants-Appellants. HELP IDAHO THRIVE, an unincorporated association; and Idaho Allied Christian Forces, Inc., an Idaho corporation, Plaintiffs-Respondents, v. IDAHO STATE LOTTERY COMMISSION; Idaho Department of Revenue and Taxation; Cecil Andrus, in his capacity as Governor of the State of Idaho; John or Jane Doe # 1, John or Jane Doe # 2, John or Jane Doe # 3, John or Jane Doe # 4, and John or Jane Doe # 5, whose true names are not yet known, individually and in their capacities as members of the Idaho State Lottery Commission; John or Jane Doe # 6, whose true name is not yet known, individually and in his or her capacity as Director of the Idaho State Lottery Commission; and John Rooney, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 664

757 P.2d 664

114 Idaho 401

Russell WESTERBERG, an individual; and Associated Taxpayers of Idaho, Inc., an Idaho corporation, Plaintiffs-Respondents, v. Cecil ANDRUS, as Governor of the State of Idaho; Idaho State Lottery Commission; and John Does 1-10, Defendants-Appellants.

HELP IDAHO THRIVE, an unincorporated association; and Idaho Allied Christian Forces, Inc., an Idaho corporation, Plaintiffs-Respondents, v. IDAHO STATE LOTTERY COMMISSION; Idaho Department of Revenue and Taxation; Cecil Andrus, in his capacity as Governor of the State of Idaho; John or Jane Doe # 1, John or Jane Doe # 2, John or Jane Doe # 3, John or Jane Doe # 4, and John or Jane Doe # 5, whose true names are not yet known, individually and in their capacities as members of the Idaho State Lottery Commission; John or Jane Doe # 6, whose true name is not yet known, individually and in his or her capacity as Director of the Idaho State Lottery Commission; and John Rooney, Defendants-Appellants.

No. 16910.

Supreme Court of Idaho.

June 7, 1988.

Hawley, Troxell, Ennis & Hawley, Boise, for defendants-appellants. John F. Kurtz, Jr., Sp. Deputy Atty. Gen., argued.

Moffatt, Thomas, Barrett & Blanton, Boise, for plaintiffs-respondents Westerberg and Associated Taxpayers of Idaho, Inc. Stephen R. Thomas argued.

Stanley D. Crow, Boise, for plaintiffs-respondents Help Idaho Thrive and Idaho Allied Christian Forces, Inc.

BAKES, Justice.

Plaintiffs brought two separate actions claiming that Title 63, ch. 26, Idaho Code (the "lottery initiative"), is unconstitutional. The two actions were consolidated in the district court by stipulation of the parties. The parties stipulated to certain facts and then filed cross motions for summary judgment. The district court ruled for plaintiffs, concluding that the lottery initiative violates Article III, § 20, of the Idaho Constitution. Defendants appeal. We affirm.

The following is the factual record that was before the trial court. During February and March of 1986, the Idaho legislature considered resolutions which would have placed on the November, 1986, ballot an amendment to Article III, § 20, of the Idaho Constitution, to permit lotteries. Article III, § 20, provides:

"Lotteries not to be authorized.--The legislature shall not authorize any lottery or gift enterprise under any pretense or for any purpose whatever."

These resolutions failed to obtain the necessary two-thirds majority vote of both houses of the legislature which is required by Article XX, § 1, of the Idaho Constitution, in order for the proposed constitutional amendment to be placed on the general election ballot. ¹

Thereafter, in March of 1986, an initiative petition was filed with the Idaho Secretary of State, seeking to place the lottery initiative on the November, 1986, ballot. The petition was reviewed by the Attorney General's office, revised accordingly, and circulated in the state to obtain voter signatures.

After the necessary number of signatures was obtained, two of the plaintiffs in this case, Associated Taxpayers of Idaho, Inc., and Russell Westerberg, applied directly to the Idaho Supreme Court for a writ of prohibition to prevent the placement of the lottery initiative on the ballot. The writ of prohibition was denied, and the lottery initiative was placed on the November, 1986, general election ballot. See Associated Taxpayers of Idaho, Inc. v. Cenarrusa, 111 Idaho 502, 725 P.2d 526 (1986).

On November 4, 1986, 60% of the voters voted in favor of the lottery initiative. The governor declared the initiative "law" as of November 19, 1986. The lottery initiative was then codified as Title 63, ch. 26, of the Idaho Code.

Thereafter, on January 2 and 5, 1987, plaintiffs brought two separate actions claiming that the lottery initiative, Title 63, ch. 26, Idaho Code, was unconstitutional because it violated Article III, § 20, of the Idaho Constitution. Upon cross motions for summary judgment, the district court ruled for plaintiffs, concluding that the lottery initiative violates Article III, § 20, of the Idaho Constitution.

There is only one issue on appeal. Does Article III, § 20, of the Idaho Constitution, which prohibits the "legislature" from authorizing "any lottery or gift enterprise" prohibit the electorate from enacting a lottery through the initiative process? We hold that it does.

Article III, § 20, prohibiting lotteries was part of the Idaho Constitution when the Constitution was adopted in 1890. The initiative provision was not part of the Constitution at that time. Legislative power was vested exclusively in the Senate and House of Representatives. Article III, § 1, provided as follows:

"The legislative power of the State shall be vested in a Senate and House of Representatives. The enacting clause of every bill shall be as follows: 'Be it enacted by the Legislature of the State of Idaho.' "

In 1912, Article III, § 1, was amended which added the following initiative clause:

"The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection provided that legislation thus submitted shall require the approval of a number of voters equal to a majority of the aggregate vote cast for the office of governor at such general election to be adopted."

Defendants argue that while Article III, § 20, precludes the legislature from authorizing a lottery, it does not foreclose the electorate from authorizing a lottery under Article III, § 1. They contend that Article III, § 20, of the Constitution, when read literally, precludes only the "legislature" from establishing a lottery, but not the electorate through their initiative power. Defendants maintain that had there been an intention to preclude the electorate from doing those things by initiative which are foreclosed to the legislature, the initiative amendment would have said as much; it would have specifically provided that those areas foreclosed to the legislature are also foreclosed to the electorate's initiative power. Apparently that was done in some states when they amended their constitutions to include an initiative power. See generally 42 Am.Jur.2d Initiative and Referendum § 6 (1969).

Defendants contend that the Idaho Constitution was drafted with care and precision in the use of the language, and with a full understanding of the accepted meaning of every word used, citing Higer v. Hansen, 67 Idaho 45, 170 P.2d 411 (1946). Defendants also maintain that the people are considered to be mindful of the state of law at the time they vote on a proposed constitutional amendment, citing Idaho Mutual Benefit Ass'n, Inc. v. Robison, 65 Idaho 793, 154 P.2d 156 (1944). Further, they rely upon the principle that a statute or constitutional provision, written in plain, clear and unambiguous language, speaks for itself, and must be given the interpretation the wording clearly implies. In support they cite State v. Jonasson, 78 Idaho 205, 299 P.2d 755 (1956); State ex rel. Haworth v. Berntsen, 68 Idaho 539, 200 P.2d 1007 (1948); Koon v. Bottolfsen, 66 Idaho 771, 169 P.2d 345 (1946); and Preston A. Blair Co. v. Jensen, 49 Idaho 118, 286 P. 366 (1930).

Defendants' position is clear and straightforward. It involves a reading solely of Article III, § 20, as it is written, without reference to other constitutional provisions, thereby concluding that only the legislature is precluded from authorizing a lottery, not the electorate, through the initiative process, because Article III, § 20, contains no mention of the initiative process, but refers solely to the "legislature." However, our prior cases have held that statutory or constitutional provisions cannot be read in isolation, but must be interpreted in the context of the entire document. ² Wright v. Willer, 111 Idaho 474, 476, 725 P.2d 179, 181 (1986) ("Statutes must be read to give effect to every word, clause and sentence."); Hartley v. Miller-Stephan, 107 Idaho 688, 690, 692 P.2d 332, 334 (1984), reh'g denied December 31, 1984 ("We will not construe a statute in a way which makes mere surplusage of the provisions included therein."); Union Pacific RR. Co. v. Bd. of Tax Appeals, 103 Idaho 808, 654 P.2d 901 (1982); University of Utah Hospital & Medical Center v. Bethke, 101 Idaho 245, 611 P.2d 1030 (1980), reh'g denied June 30, 1980; Standlee v. State, 96 Idaho 849, 852, 538 P.2d 778, 781 (1975) ("[I]n construing the Constitution, certain rules of interpretation must be kept in mind. Constitutional provisions apparently in conflict must be reconciled if at all possible."); Idaho Telephone Co. v. Baird, 91 Idaho 425, 429, 423 P.2d 337, 341 (1967) (Three sections of the Idaho Constitution, "inasmuch as they relate to the same matter or subject, i.e., revenue and taxation, must be construed in pari materia."); Lyons v. Bottolfsen, 61 Idaho 281, 101 P.2d 1 (1940) (constitutional provisions prescribing maximum rate of taxation and prohibiting expenditures in excess of appropriations must be read with provision imposing a limitation on public indebtedness); Bastian v. City of Twin Falls, 104 Idaho 307, 310, 658 P.2d 978, 981 (Ct.App.1983), petition for review denied 1983 ("The particular words of a statute should be read in context; and the statute as a whole should be construed, if possible, to give meaning to all its parts in light of the legislative intent.").

Our sister states are in accord. ITT World Communications, Inc. v. City and County of San Francisco, 37 Cal.3d 859, 210 Cal.Rptr. 226, 693 P.2d 811, 816 (1985) ("A constitutional amendment ... should not be construed to effect the implied repeal of another constitutional provision."); City and County...