Hull v. Cartin , 61 Idaho 578 ( 1940 )

I concur in the dissenting opinion of Justice Budge. The portion of section 15-231 requiring the provisions of a lost or destroyed will to be "clearly and distinctly proved by at least two credible witnesses," if valid, means that the evidence establishing the provisions of the will must not be less satisfactory than would be the testimony of two credible witnesses thereto. In this case the provisions of the will were established by the production of a duplicate original, the genuineness of which has not been questioned. Documentary evidence of that character has greater weight to establish the provisions of a lost will than would the testimony of many witnesses, the accuracy of which would be dependent on frail and uncertain memories.

I further dissent from the majority opinion wherein it holds "The legislature, in conferring the authority to make a will and have it admitted to probate, and the testator's estate divested thereunder, may prescribe the procedure and condition under which it may be done," and in holding I. C. A., section 15-231, does not conflict with article 2, section 1 and article 5, Section 13, of the Constitution of Idaho.

After this case was argued, we called for briefs on the question of whether the statute here under consideration conflicts with article 2, section I and article 5, section 13 of the Constitution. These constitutional provisions are:

Art. II, § 1. "The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted."

Art. V, § 13. "The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the Supreme Court, so far as the same may be done without conflict with this constitution."

In response to our request counsel submitted briefs on this constitutional question. Counsel for appellants supported their contention, that the statute is constitutional, with the following points and authorities.

"I. "The legislative power makes rules for the future; the judicial power decides controversies on past facts. 6 Am. Eng. Ency. of Law (2nd Ed.) Const. Law, p. 1032; 16 C.J.S. Const. Law, p. 299, sec. 108; McKnight v. Grant, 13 Idaho 629 [92 P. 989, 121 Am. St. 287]; 34 C.J., p. 1184 Note 52 (b);Lyon v. City of Payette, 38 Idaho 705 [224 P. 793]. "II. "The right to pass or receive property by will is a privilege extended by the legislature and subject to its regulations. 68 C.J. Wills, p. 414, sec. 7; 16 C.J.S., Const. Law, p. 615;Hedin v. Westdala Lutheran Church, 59 Idaho 241 [81 P.2d 741]. "III. "A statute will be construed as constitutional if possible.Smallwood v. Jeter, 42 Idaho 169 [244 P. 149]; Inter-mountainTitle Guaranty Co. v. Egbert, 52 Idaho 402 [16 P.2d 390]. "IV. "Construing section 15-231 I. C. A. as a rule of evidence it would be constitutional. 12 C.J., Const. Law, p. 823, sec. 285; 20 Am. Jur., Evidence, p. 38, sec. 8; 11 Am. Jur., Const. Law, p. 1202, sec. 374; Boise Irrigation and Land Co. v. Stewart,10 Idaho 38 [77 P. 25, 321]; State v. Dunn, 13 Idaho 9 [88 P. 235]. "V. "Construing section 15-231 I. C. A. as a rule of procedure of the probate court it would be constitutional. Re Sharp,15 Idaho 120 [96 P. 563, 18 L.R.A. (N.S.) 886], 16 Encyc. Pleading and Practice, p. 1066. "VI. "The wisdom of Section 15-231 as a rule of public policy was for the legisature to determine. Pike v. St. Bd. of LandCommrs., 19 Idaho 268 [113 P. 447, Ann. Cas. 1912B, 1344]. "VII. "Section 15-231 I. C. A. is similar to other laws of the state prescribing a certain kind and quantity of evidence, which it is the policy of the state to require, and construed thus, the statute would be constitutional. I. C. A. 16-505; I. C. A. 31-703; Bell v. Bell, 15 Idaho 7 [96 P. 196]; I. C. A.19-2017; State v. Clark, 27 Idaho 48 [146 P. 1107]; State v.Shelton, 46 Idaho 423 [267 P. 950]; I. C. A. 19-2015; I. C. A. 16-501; I. C. A. 16-508; I. C. A. 24-1701."

Respondents' counsel supported their contention, that the statute is unconstitutional, by points and authorities as follows:

"I. "Any act by which the legislature attempts to deprive the courts of their judicial power is void. Sec. 13, Art. V, Constitution of Idaho; Art. II, Constitution of Idaho;McDougall v. Sheridan, 23 Idaho 191 [128 P. 954]; 11 Am. Jur., pages 904 and 908. "II. "It is beyond the legislative power to preclude or inhibit the courts from determining a question of fact when the proof of such fact has been presented by competent, material and relevant evidence. Gordon v. Lowry [116 Neb. 359], 217 N.W. 610; State v. Flynn [137 Or. 8, [299 P. 694, 300 P. 1024];Manley v. State of Georgia, 279 U.S. 1 [49 Sup. Ct. 215,73 L. Ed. 575]; Missouri, K. T. Ry. Co. v. Simonson, [64 Kan. 802], 68 P. 653 [91 Am. St. 248, 57 L.R.A. 765]; State ex.rel. [v.] Atkinson, [271 Mo. 28] 195 S.W. 741; Phillips v.Byrd, [43 Okl. 556] 143 P. 684; Cooley Constitutional Limitations, Seventh Edition 526; Meyer v. Berlandi [39 Minn. 438], 40 N.W. 513 [12 Am. St. 663, 1 L.R.A. 777]; In re Cate, (Cal. [App.]) 273 P. 617; O'Donnell v. Wells [323 Mo. 1170],21 S.W.2d 762; Carolene Products Co. v. McLaughlin [365 Ill. 62],5 N.E.2d 447; White v. Hall, (1st Cir.) 53 F.2d 210;Hall v. White, (Mass. D.C.) 48 F.2d 1060. "III. "Statutes attempting to deprive courts of any inherent or vested powers are invasion of judicial power and void.Martin Thoe v. Chicago, Milwaukee St. Paul Railway Co., [181 Wis. 456] 195 N.W. 407, 29 A.L.R. 1280; Annotation 29 A.L.R. 1287; State v. McCarty, 47 Idaho 117 [272 P. 695]."

No decision has been brought to our attention involving a constitutional provision like our article 5, section 13. However, the language is free from uncertainty. Article 2, section 1 divides the government of the state into three distinct departments. Article 5, section 13, expressly states that "The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government." This leaves but one question: To which department, the legislative or the judicial, belongs the power and duty to decide as to the measure of proof, or the number of witnesses, required to satisfy the judicial mind with respect to the truth of a matter submitted to a court for consideration and decision? Answer to that question is to be found in the authorities cited, as above set out, in respondent's brief. There can be no doubt that this power and duty belong to the judicial, not to the legislative, department of government.

In Wigmore on Evidence, second edition, volume 2, section 1353, the rule, applicable to the question before us, is stated thus:

"The judicial function under the Constitution is to apply the law in controverted cases; to apply the law necessarily involves the determination of the facts; to determine the facts necessarily involves the investigation of evidence as a basis for that determination. To forbid investigation is to forbid the exercise of an indestructible judicial function. To make a rule of conclusive evidence, compulsory upon the Judiciary, is to attempt an infringement upon their exclusive province."

I am not in accord with the theory expressed by the Chief Justice that "Since the question was not raised by either party to the litigation and no assignment of error has been specified thereon, . . . . the question is not properly before us for decision." To follow that theory would necessitate a violation of our official oath, which is:

"I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution and the laws of this state; that I will faithfully discharge all the duties of the office of Justice of the Supreme Court according to the best of my ability. So help me God." (I. C. A., sec.57-401.)

Our obligation is that we will support the constitution andthe laws of this state, not that we will do so only when their violation has been brought to our attention by a party litigant by an assignment of error. It is our sworn duty to uphold the Constitution when we are urged to apply and enforce a statute which violates it, whether the violation is presented by an assignment of error or not. In this instance the statute violates the Constitution in its attempt to deprive the courts of a power and jurisdiction which rightly pertains to them as a coordinate department of government.

Petition for rehearing denied.