Jackson v. Gallet , 39 Idaho 382 ( 1924 )

I dissent. Ordinarily I doubt the value of a dissenting opinion of any length. The subject matter of the present case, and the interest which attaches to it, both here and elsewhere, make it an exception. Moreover, as the case was originally assigned to me and I prepared an opinion for the consideration of my associates, this dissenting opinion does not involve the expenditure of time and effort which could be better expended on some other case. I will discuss the main points involved in the same order in which they are discussed in the majority opinion, as well as in the thorough and excellent briefs which have been submitted.

In order for a legislative enactment to constitute an appropriation, it must give authority to the proper officers to pay from public moneys a specific or at least a maximum sum for specific purposes. (Kingsbury v. Anderson, 5 Idaho 771,51 P. 744; Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279;Jeffreys v. Huston, 23 Idaho 372, 129 P. 1065; Epperson v.Howell, 28 Idaho 338, 154 P. 621; Herrick v. Gallet, 35 Idaho 13,204 P. 477; Blaine County Investment Co. v. Gallet,35 Idaho 102, 204 P. 1066; State ex rel. Davis v. Eggers, 29 Nev. 469,91 P. 819, 16 L.R.A., N.S., 630.) An appropriation will not be inferred from doubtful or ambiguous language. (Blaine County Investment Co. v. Gallet, supra.) No set form of words is necessary; it is sufficient if language be used covering all of the necessary elements of an appropriation as above defined. (Kingsbury v. Anderson, supra; Herrick v.Gallet, supra.) I conclude that all of those elements are sufficiently covered by the provisions of secs. 9 and 10 of the act and that it does appropriate the maximum amount realized by the collection of the attorneys' license fees for the purpose of carrying out its objects. The case is distinguished fromBlaine County Investment Co. v. Gallet, supra, in the following particulars: In the latter case the act did not set aside the whole of the general fund nor state how much of it should be used, and the court would not imply legislative intention to permit the use of the entire general fund for the purposes in question. In this case, by setting aside the entire license fees for the purposes in question, the act does fix a maximum, and the estimated amount of the fund is not disproportionate to the requirements reasonably to be anticipated.

Const., III, 16, provides:

"Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title."

It will be noticed that it requires only the subject to be stated and not the matters properly connected therewith.

"The courts must give a liberal construction to the language used by the legislature in framing the title to any given act." (Turner v. Coffin, 9 Idaho 338, 74 P. 962.)

"Necessarily the title of an act must be brief. The object of the title is to give a general statement of the subject matter, and such a general statement will be sufficient to include all provisions of the act having a reasonable connection with the subject matter mentioned and a reasonable tendency to accomplish the purpose of the act. The object of the title is not to state the reason for the passage of the act, or to give an index to its contents, but to give a general statement of the subject matter of the act. (Tarantina v. Louisville N. R.R. Co., 254 Ill. 624, Ann. Cas. 1913B, 1058, 98 N.E. 999.) As was stated in the case of State v. Pioneer Nurseries Co.,26 Idaho 332, 143 P. 405, and other cases therein cited, 'the title . . . . is sufficient if the act treats of but one general subject and that subject is expressed in the title.'" (In re Crane, 27 Idaho 671, 151 P. 1006.)

See, also, State v. Doherty, 3 Idaho 384, 29 P. 855; Turnerv. Coffin, 9 Idaho 338, 74 P. 962; Kessler v. Fritchman,21 Idaho 30, 119 P. 692; State v. Pioneer Nurseries Co., 26 Idaho 332,143 P. 405. The purpose of this provision is to prevent deception of the members of the legislature and the people, which would result from incorporating provisions in the body of an act of which the title gives no indication. (Turner v.Coffin, supra; Katz v. Herrick, 12 Idaho 1, 86 P. 873.) A title which conceals the real subject of the statute or one which is delusive or false violates the constitution. Defendant contends that the title of this act is defective for the following reasons: (1) The title gives no indication of the intention to create a board of commissioners of the Idaho state bar, which is one of its principal objects; (2) the title is misleading and deceptive in that it says the state is relieved from the cost of holding examinations whereas the act provides that it shall be paid out of the fund realized from the license fees; (3) the title does not say that the act carries an appropriation. I will take up these objections in the order mentioned. The title indicates one of the purposes of the act is to provide for the organization and government of the Idaho state bar. The creation of a head of this organization is a matter reasonably connected with the subject matter expressed in the title and having a reasonable tendency to accomplish the purposes of the act. The creation of the commission is therefore fairly within the title. From a literal and technical point of view there may be some force in the contention that the language in the title to the effect that the state is relieved of the cost of holding examinations is inconsistent with the provision of the bill making an appropriation. When we consider the substance of things, however, there is no real contradiction. Hitherto whatever expense was incurred in conducting examinations for the bar has been paid out of the appropriation for the supreme court, which is realized out of general state taxes. The act provides that this expense shall be paid out of the license fees collected from the attorneys and not from the people of the state in general. As a matter of substance, therefore, it is true that the burden is removed from the state in general and placed upon the class of persons regulated by the act, to wit, attorneys. Therefore, if any contradiction exists, it is apparent rather than real and does not furnish ground for holding that the title is delusive or deceptive. If the expenditure of money and the making of an appropriation for that purpose are reasonably connected with the subject matter of the act, and if the necessity for an appropriation is reasonably suggested by the title of the act, it need not be specifically expressed in the title. (McCaslin v. State, 44 Ind. 161; Klein v.Kinkead, 16 Nev. 195; Martin v. Tyler, 4 N.D. 278, 60 N.W. 392, 25 L.R.A. 838; 25 Rawle C. L., pp. 859, 860, notes 1 and 2.) Anyone reading this title would naturally infer that some expense would be necessarily incurred in carrying out the objects expressed, and that the license fees mentioned in the title would be used to defray it. No one could reasonably infer that the purpose of imposing a license fee upon the profession was merely to raise revenue rather than to defray the expenses of the organization and regulation called for by the title. I conclude that the appropriation of the license fund is reasonably connected with the subject expressed in the title and the necessity for it is reasonably indicated.

Const., XI, 2, provides:

"No charter of incorporation shall be granted . . . . except for such municipal, charitable, educational, penal or reformatory corporations as are or may be, under the control of the state."

It is admitted the case does not fall within any of these exceptions. Const., III, 19, provides that the legislature shall not pass any special law creating a corporation. It is contended that the act makes the bar association a corporation by special law in violation of these provisions; that a corporation is created because the board has certain powers and characteristics which commonly belong to corporations, for instance, a name, the right of perpetual succession, a seal, the right to hold and dispose of property. These characteristics are not peculiar to corporations. Most of our state boards and commissions have names. The right of succession granted by the act simply means that the board shall continue to exist and function in spite of change in its personnel. It can be abolished by the legislature at will. Many of our state boards and commissions have seals, for instance the public utilities commission and the industrial accident board. The board is not granted the general right to hold and dispose of property, but simply the right to receive gifts and bequests to promote the objects for which it is created. It is argued that a corporation is created because the act refers to the board as commissioners of the Idaho state bar. The character of the board is to be determined from the powers it exercises and the duties it performs rather than from the name given it. I conclude that it is an administrative board rather than a board of directors of the bar. It is contended that the act gives the bar control of the board, and that this makes the association a corporation and the board its board of directors. The premise is not well founded. The board of commissioners is selected by ballot of the members of the Idaho state bar, but they have no control over its actions. Its disbursements are subject to the control of the board of examiners, and its actions in admitting or disciplining attorneys are subject to the control of the supreme court. The fact that a board or commission has some of the powers usually possessed by corporations does not necessarily make it a corporation. (Duffy v. City of New Orleans, 21 So. 179.) In the following cases boards somewhat similar in nature were held under similar constitutional provisions not to be corporations:Duffy v. City of New Orleans, supra; Ex parte Frazer, 54 Cal. 94; State v. Stewart, 74 Wis. 620, 43 N.W. 947, 6 L.R.A. 394.

Considering the act as a whole I conclude that neither the attorneys of the state nor the board of commissioners constitute a corporation under its provisions.

The legislature has power to provide for the method of appointing officers whose offices are not established by the constitution. (Const., IV, 6.) In Ingard v. Barker, 27 Idaho 124,147 P. 293, this court, speaking through Mr. Justice Budge, said:

"The legislature may create an office or offices not otherwise provided for, nor prohibited, by the constitution, and may fix the method of filling such office or offices; and when so created, the appointment or selection of officers to fill such offices may be made either by the chief executive, or by any person, board, corporation or association of individuals as provided by law, and such appointment would not be in conflict with the constitution or an improper exercise of power properly belonging to the executive department of the state government."

Const., I, 20, provides:

"No property qualification shall ever be required for any person to vote or hold office except in school elections or elections creating indebtedness."

Sec. 3 of the act in question provides that the board of commissioners shall be selected by members of the Idaho state bar who shall vote by ballot. Later on in the section the word "election" is used. The Attorney General contends that the commissioners are selected by an election within the meaning of that term as used in Const., I, 20, that the members of the bar are the electors, and that the act violates that provision of the constitution, since it limits the right to vote to members of the bar, the contention being that this is a property qualification. If the premise be sound that this is an election within the meaning of that term as used in the constitution, then the act is invalid. I conclude, however, that it is not an election but an appointment. The mere fact that power of selection was delegated to a body composed of several or even of many persons, and that a vote is necessary to a choice, does not make the exercise of it an election rather than an appointment. The Senate acts jointly with the Governor in exercising the appointive power of constitutional officers, and it is necessary that a vote be taken in that body, but this does not render the act any less, an appointment. The members of this court appoint the clerk and law librarian and, in order to arrive at a choice, a vote must be taken. In other instances the appointing power is delegated to boards or commissions composed of several persons. Under the act in question the power of selection is delegated to a few hundred persons, comprising members of the bar. Such a difference in the number of members of the body which exercises the power would seem to be a difference merely in degree and not in principle. The mere fact that the word "election" is used in certain places in the statute is not controlling. The court will be governed by the nature of the function delegated and exercised, and not by the name given to it. To the effect that the method of selection provided by this statute is an appointment and not an election see:Wickersham v. Brittan, 93 Cal. 34, 28 P. 792, 29 P. 51, 15 L.R.A. 106; Ex parte Frazer, 54 Cal. 94; Brown v.Bunselmeyer, 101 Misc. 625, 167 N.Y. Supp. 993; State Board ofPharmacy v. Bellinger, 138 A.D. 12, 122 N.Y. Supp. 651;Sturgis v. Spofford, 45 N.Y. 446. To the effect that this method of selection is not repugnant to the constitution see:Ingard v. Barker, supra; Elliott v. McCrea, 23 Idaho 524,130 P. 785; Ex parte Frazer, supra; Ex parte Gerino, 143 Cal. 412,77 P. 166; In re Bulger, 45 Cal. 553; Bullock v.Billheimer, 175 Ind. 428, 94 N.E. 763; Overshiner v. State,156 Ind. 187, 83 Am. St. 187, 59 N.E. 468, 51 L.R.A. 748; Schollev. Maryland, 90 Md. 729, 46 A. 326, 50 L.R.A. 411; State v.Vance, 29 Wash. 435, 70 P. 34. In Overshiner v. State, supra, the court passed upon the constitutionality of an act which committed the appointment of the members of the board of dental examiners to the State Dental Association. In upholding the act the court used the following language, which is apropos:

"It is claimed that the statute must fail for the reason that the legislature has no constitutional warrant for bestowing police powers upon a private corporation, to be by it exercised upon the citizens of the state. We perceive no reason why a corporation, such as the one complained of, may not prove itself a repository of power as safe and salutary as an individual. The corporation is composed of practicing dentists, organized for the promotion of scientific knowledge and skill in the practice of the profession of dentistry, and which association thus stands in an intimate and well-informed relation to the subject, and possessed of a peculiar interest in the successful administration of the law. It is difficult to conceive of an appointing power with higher qualifications, or likely to be swayed by more laudable motives; and that it is an organization of persons mutually interested in the enforcement and proper administration of the law surely furnishes no reason for its condemnation."

If the office were one which, under the constitution or statutes, clearly had to be filled by an election, I would, of course, concede that the right of franchise could not be limited to the attorneys of the state. The office is not one which has to be filled by election. Having due regard to the substance, and construing the language used in the light of the evident purpose of the act, it seems to me that the commissioners are appointed rather than elected. If the power of selection had been exercised by the legislature itself, or committed to an executive board or to this court, it would be readily conceded that it was the power of appointment. It is just as much so when committed to the members of the bar and by them exercised.

I think the contention that the act makes the lawyers a self-governing class is without foundation. Under it they merely have a voice in the selection of the commissioners, and are subject to the payment of the license fee. They have no control over the board or its actions. They have no power to make rules, admit applicants to practice, discipline, suspend or disbar attorneys. The commissioners have power to recommend rules, recommend admission of applicants, and recommend the discipline of offenders, subject, however, to approval by the supreme court. They are in these respects an arm of that court. Surely this does not amount to anything bordering on government by classes.

In Ingard v. Barker, supra, this court said:

"In passing upon the constitutionality of statutes generally, no matter from what standpoint the assault thereon may be made, nothing but a clear violation of the constitution will justify the courts in overruling the legislative will, and where there is reasonable doubt as to the constitutionality of an act, it must be resolved in favor of the act."

See, also, Noble v. Bragaw, 12 Idaho 265, 85 P. 903;Gillesby v. Board of County Commrs., 17 Idaho 586, 170 P. 71. Thus this court in common with most others has subscribed to the wholesome doctrine that an act of the legislature should not be set aside as unconstitutional unless it appears beyond all reasonable doubt that it is repugnant to some provision of the constitution. I am not convinced that such a case is made out against the act in question. It strikes me that the majority opinion resolves all doubts against the validity of the act rather than in its favor. I conclude that the writ should issue.

I am authorized to state that Mr. Justice Dunn concurs in this dissenting opinion.