Whitten v. Chapman

• Decision Date: 01 March 1928
• Docket Number: 5090
• Citation: 264 P. 871,45 Idaho 653
• Parties: R. E. WHITTEN, Appellant, v. SEWELL H. CHAPMAN, Respondent
• Court: Idaho Supreme Court

264 P. 871

45 Idaho 653

R. E. WHITTEN, Appellant, v. SEWELL H. CHAPMAN, Respondent

No. 5090

Supreme Court of Idaho

March 1, 1928

ELECTION OF WATER-MASTER-DETERMINATION OF LEGALITY-WHO MAY VOTE-QUO WARRANTO-RIGHT TO OFFICE-BURDEN OF PROOF.

1. Even though water-master may be public officer, and plaintiff could have contested his election under C. S., sec. 7274 et seq., it was not improper to bring action in nature of proceeding in quo warranto under sec. 7024, providing that any person rightfully entitled to office may bring action in his own name against person who has usurped, intruded into or who holds or exercises same.

2. Under C. S., sec. 5609, as amended by Laws 1925, chap. 60 providing for election of water-master for water district and stating that corporation shall be considered person for purpose of statute, and shall cast vote by someone to be designated by corporation, and that each stockholder in corporation shall be entitled to as many votes as he shall have units of ten inches of water regularly adjudicated corporation, through its designated representative, had right to cast one vote for every ten inches of its decreed water right.

3. In action under C. S., sec. 7024, to oust defendant from office of water-master and induct plaintiff into office, burden was on plaintiff to establish his right to office, and it was his duty to produce necessary evidence to satisfy burden.

4. In action under C. S., sec. 7024, plaintiff, who had been candidate for election, and who was appointed by commissioner of reclamation held not to have established his right to office of water-master for water district as against one who was elected by water users and had taken office, on ground that certain corporation, if allowed one vote for each ten inches of its decreed water right, as provided by C. S., sec 5609, as amended by Laws 1925, chap. 60, would have cast its votes for plaintiff.

5. Where water-master had been elected under C. S., sec. 5609, as amended by Laws 1925, chap. 60, and his compensation fixed at meeting of water users held for that purpose, appointment of an- other by commissioner of reclamation on assumption that election was not legal was of no validity, since commissioner of reclamation has no power to determine legality of election of water-master.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. B. S. Varian, Judge.

Action for usurpation of office under C. S., sec. 7024. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

Bissell & Bird, for Appellant.

In the selection of a water-master, under the provisions of C. S., chap. 219, each person or corporation present, owning or having the use for the ensuing irrigation season of any adjudicated right equal to ten inches of water in the stream or water supply comprising such water district is entitled to as many votes as he or it shall have units of ten miner's inches of adjudicated water in such stream or supply. (C. S., sec. 5609, as amended by Sess. Laws, 1925, chap. 60; 3 Fletcher, Cyc. Corps., 2816, and Commonwealth v. Smith, 37 Pa. 625, 627.)

The intention of the legislature is the primary rule of statutory construction. (23 Cal. Jur. 726.)

The contemporaneous construction placed upon C. S., sec. 5609, by the department of reclamation for at least sixteen years should be given great weight by the courts, that being the department by statute charged with executing said section. (23 Cal. Jur. 776; 25 R. C. L. 1043; Riley v. Forbes, 193 Cal. 740, 227 P. 768; People v. Town of Antioch, 17 Cal.App. 751, 121 P. 945.)

Legal votes having been rejected and the meeting having been unlawfully conducted, a water-master was not chosen and the commissioner of reclamation had authority to appoint a water-master. (C. S., secs. 5606, 5608, 5609; McCullers v. Board of Commrs. of Wake County, 158 N.C. 75, Ann. Cas. 1913D, 507, 78 S.E. 816; C. S., secs. 7024, 7274, 7277, 7278, 7279, and 7280; Ashley v. Richard, 32 Idaho 551, 185 P. 1076.)

James & Ryan and W. A. Brodhead, for Respondent.

The matter of determining upon the legality of votes is a judicial function and can be passed upon only by a tribunal competent to make an adjudication and where the parties interested can be heard. (State v. Rodman, 43 Mo. 256; State v. Steers, 44 Mo. 223.)

The duty of investigating charges of misconduct in elections and deciding upon them can never be justly assumed by an executive officer, but it belongs to such judicial or quasi-judicial officer as the law may designate for that purpose. (McCrary on Elections, p. 231; Switzler v. Dyer 2 Bart. 777; State v. Rodman, supra; State v. Seers, supra; Switzler v. Anderson, 2 Bart. 374, 907; also, McCrary on Elections, p. 233.)

The commissioner of reclamation is a creature of the constitution and statutes of the state and can exercise no authority except that which is expressly given him and such incidental and implied authority as is necessary to enable him to exercise the powers expressly granted him. (Evans v. Swendsen, 34 Idaho 290, at bottom of page 292, 200 P. 136.)

C. S., sec. 7024, takes the place of and is a substitute for the common-law proceeding of quo warranto. (Toncray v. Budge, 14 Idaho 621, 95 P. 26.)

C. S., sec. 7024, can be resorted to by a person in his private capacity only as against a usurper of office. (Stephens v. People, 89 Ill. 337; Linegar v. Rittenhouse, 94 Ill. 208; Snowball v. People, 147 Ill. 260, 35 N.E. 538.)

C. S., sec. 7024, cannot be resorted to by a person in his private capacity to contest an election. In such case the statutory remedy for contesting elections is exclusive. (9 R. C. L., sec. 147, pp. 1157, 1158, beginning at the bottom of page 1157; State ex rel. Rainwater v. Ross, 245 Mo. 36, 149 S.W. 451. This case is found in Ann. Cas. 1913E, p. 978.)

Where the action is brought by an individual in his private capacity, quo warranto will not lie if another adequate remedy exists at law or in equity. (32 Cyc., pp. 1416, 1417 (38); State ex rel. Baird v. Board of Commrs., 117 Kan. 151, 230 P. 531; sec. 2 of the syllabus; High on Extraordinary Remedies, secs. 616-618, 637, 645.)

Quo warranto and election contest proceedings are distinct remedies. (McCrary on Elections, sec. 395; also, State v. Marlow, 15 Ohio St. 114.)

Bothwell & Chapman, Amici Curiae.

Any person rightfully entitled to an office or franchise may bring an action in his own name against the person who has usurped, intruded into or who holds or exercises the same. (C. S., sec. 7024; Toncray v. Budge, 14 Idaho 621, 95 P. 26; State v. Fred W. Gooding, 22 Idaho 128, 124 P. 791.)

Courts of general and original jurisdiction have the power to inquire into the regularity of elections by an information in the nature of quo warranto and this jurisdiction remains even though statutes provide special proceedings for the contest of elections, unless it appears that the legislature intended to take away this power. (People v. Altenberg, 179 Ill.App. 416, 103 N.E. 67; 32 Cyc. 1418.)

Each water user or stockholder owning or having the use for the ensuing irrigation season of any adjudicated right of water in the stream or water supply comprising a water user's district such as that involved herein is entitled to one vote for each ten inches of water in such stream or as many votes as such water user or stockholder shall have units of ten inches of water in such stream. (C. S., sec. 5609; amended, 1925 Sess. Laws, chap. 60; Fletcher, 3 Cyc., Corps., sec. 1678; 1 Thompson on Corporations, 2d ed., sec. 855.)

A. B. Barclay, Amicus Curiae.

The constitution of this state was adopted by the people of the entire state and was for the government of the people of the state, and the provisions therein found are intended to apply to the entire state, unless otherwise provided, and to every legal subdivision thereof, whether created by the constitution or the legislature. The provisions of the constitution with reference to the qualification of voters were intended to apply not only to state elections, but to elections held by the legal subdivisions of the state. There is no separate or distinct qualification provided by the constitution for voters at elections held in counties, cities, villages or other municipalities. To all such elections, secs. 1 and 2 of art. 6 apply. (Pioneer Irr. Dist. v. Walker, 20 Idaho 605, 119 P. 304; Ferbrache v. Drainage District No. 5 of Bonner County, 23 Idaho 85, Ann. Cas. 1915C, 43, 128 P. 553, 44 L. R. A., N. S., 538.)

WM. E. LEE, C. J. Budge, Givens, Taylor and T. Bailey Lee, JJ., concur.

OPINION

WM. E. LEE, C. J.

Pursuant to notice therefor by the commissioner of reclamation, certain water users convened on March 7, 1927, for the purpose of electing a water-master for water district No. 7-AB, and of fixing the compensation to be paid that officer. Forty-five persons were present and one hundred were represented by proxies. The meeting organized by the selection of a chairman and secretary. The report of the committee on credentials " . . . . that there were one hundred and forty-five persons and corporations owning and having the use of adjudicated rights of ten inches or more present in person or represented by proxy, and . . . . that each person present in person or represented by proxy be entitled to one vote each . . . . " was adopted. It was further determined " . . . . that the ballot of the Big Wood Canal Company (having offered to vote 30,951.76 votes) be counted as only one vote; also that the vote of Sidney Smith, . . . . attempted to vote 26 1/2 votes, be counted as one vote."

The result of the vote was announced: " . . . . for Sewell H. Chapman, one hundred forty-three votes, for R. E. Whitten two votes."...