Keenan v. Price , 68 Idaho 423 ( 1948 )

In the case of State v. McMahan, 57 Idaho 240, at page 259,65 P.2d 156, 164, Mr. Justice Budge, in his dissent therein, said: "It is useless and undesirable as a rule to express one's dissenting views." As a general rule I subscribe to the pronouncement contained in the above quotation yet there are times when one cannot concur in a majority opinion without doing violence to his conscience and I feel myself in that position in the instant case, and being unable to concur there is no alternative except to dissent. I will briefly state my reasons therefor.

The majority opinion gives a detailed and accurate statement of the facts, so there will be no occasion for any statement thereof herein. There are three propositions involved and which have been approved by the majority, but to which I cannot subscribe, namely: (1) The legislative intent is not a matter of concern, or for consideration in the instant case; (2) The failure of the legislature to submit an amendment to Sec. 2, art. 4, of the Constitution, incident to the "time and place" of the election of executive officers; (3) The proposed amendment submitted two questions in a single amendment.

As to the first proposition, that is, that the legislative intent is not a matter for consideration we submit, that in proposing an amendment to the constitution the legislature obtains its authority therefor from the constitution itself. It is not required, and does not apply to the people for authorization so to do, but, on the contrary, turns to the constitution to ascertain what that instrument requires. That instrument, in Sec. 1, art. 20 says: "Any amendment or amendments to this constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of general circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution."

It is not for the court to propose the amendment to be submitted, nor correct it on the theory that the legislature intended it to be different than the proposed amendment which was submitted. At page 7, of Plaintiff's brief, it is said: "When the Legislature takes action in the field of proposals for constitutional amendments, it is acting in an entirely different capacity than when it is enacting legislation. In 11 Am.Jur. 633 it is stated, 'The power of the Legislature to initiate changes in the existing organic law is a delegated power and one which is generally to be strictly construed under the limitations imposed by the authority by which it has been conferred. In submitting propositions for the amendment of the Constitution, the legislature is not exercising its legislative power or any sovereignty of the people that has been intrusted to it, * * *.'"

In 11 Am.Jur. 633, supra, it is further said:

"* * * The extent of this power is limited to the object for which it is given and is measured by the terms in which it has been conferred; and it cannot be extended by the legislature to any other object or enlarged beyond these terms. Accordingly, it has been judicially stated that the legislature is not authorized to assume the function of a constitutional convention and propose for adoption by the people a revision of the entire Constitution under the form of an amendment or submit to their votes a proposition which, if adopted, would, by the very terms in which it is framed, be inoperative.

"It is usually held that a constitutional provision as to amending the Constitution, otherwise than by a convention, is mandatory, and not directory. The reason for such a construction is obvious. The Constitution is the organic and fundamental law, and to permit a change in it without strict adherence to the rules therein laid down would be a step in the direction of the destruction of the stability of the government."

At page 638 of 11 Am.Jur., it is said: "The general rule is that an amendment to a Constitution does not become effective as such unless it has been duly adopted in accordance with the provisions of the existing Constitution. The procedure and requirements estblished for the amendment of the fundamental law are mandatory and must be strictly followed, in order to effect a valid amendment. None of the requisite steps may be omitted."

The leading case on the above text is the case of Utter v. Moseley, 16 Idaho 274, 100 P. 1058, 133 Am. St. Rep. 94, 18 Ann.Cas. 723, and is cited among other authorities.

In 16 C.J.S., Constitutional Law, § 9, it is said: "The proposal by the legislature of amendments to the constitution is not the exercise of an ordinary legislative function; and it is not subject to the constitutional provisions regulating the introduction and passage of ordinary legislative enactments, * * *".

Regardless of some Idaho authorities to the contrary we think it is only necessary to refer to the case of State v. Enking,62 Idaho 649, 115 P.2d 97, 99, for the last and best expression as to the right of a court to correct a constitutional proposal on account of "legislative intent" in connection therewith. In said case the same question was involved, as in the instant case, that is to say: Could the court take judicial notice of the fact that the word "State", the same as "State Auditor" had been inadvertently omitted from the constitutional proposal of 1927, so that endowment funds could not be loaned on "state bonds". State bonds were one of the three original classes of securities in which endowment funds could be invested, and everything pointed to the conclusion that it was the neglect of some clerk that it was not included in said proposal when submitted to the electors. The court in passing on said matter said: "If the people want to authorize the loaning of the permanent endowment funds on state bonds, they may authorize doing so by proper constitutional amendment, but since they have voted a change from the original Constitution and eliminated 'state bonds' as acceptable security, we are unauthorized to amend the Constitution by judicial construction or interpolation." It is thereby established that the court has no authority to determine what the legislative intent may have been or is and to write into a proposal, matter which should have been taken into account by the legislature.

As to proposition "(2)" that is, the failure of the legislature to submit an amendment to sec. 2 of art. 4 of the constitution so as to provide a "time and place" for the election of executive officers, we now find a conflict in the constitutional provisions. Section 1 of article 4, lists the executive officers, fixes their term of office and designates their place of residence. It states "each of whom shall hold office for four years, beginning on the first Monday of January next after his election, commencing with the election in the year 1946, except as otherwise provided in this constitution." (Emphasis mine.) In other words, what is meant "except as otherwise provided in this constitution". Undoubtedly it means, that we must look elsewhere in the constitution to ascertain the time and place, when and where, executive officers will be elected. Section 2 of article 4 of the constitution states: "The officers named in section 1 of this article shall be elected by the qualified electors of the state at the time and places of voting for members of the legislature, and the persons, respectively, having the highest number of votes for the office voted for shall be elected; but if two or more shall have an equal and the highest number of votes for any one of said offices, the two houses of the legislature at its next regular session, shall forthwith, by joint ballot, elect one of such persons for said office. The returns of election for the officers named in section 1 shall be made in such manner as may be prescribed by law, and all contested elections of the same, other than provided for in this section, shall be determined as may be prescribed by law."

From the provisions of the foregoing section, it manifestly appears that the whole thereof is devoted to the election of executive officers and that the same should have been submitted as an amendment along with section 1, so as to provide the time and place for election of executive officers and eliminate from consideration the conflict that now exists by reason of the fact that section 2 has not been amended to meet the requirements of section 1 as now amended. It needs no authorities in support of the above observations. All that is necessary is to read section 1 as amended and section 2 of article 4 and the answer is supplied. Under the present amendment we will have an election soon for members of the legislature, but there will be no election for state executive officers and the statement contained in section 1, as amended, "except as otherwise provided in this constitution" is meaningless and the purported amendment void.

We now come to the "(3)" proposition, which is, that the proposed amendment submitted two questions in a single amendment. Section 2 of Article 20, of the constitution provides: "If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately."

The provisions of the constitution are mandatory. Let us assume, for the purpose of illustration, that the proposed amendment was complete and needs no "judicial construction or interpolation" in the premises. The electors were called upon to determine whether or not the term of office of executive officers should be increased from two to four years. That constituted a complete question. It would be foolish to contend otherwise. The proposition that the governor could not succeed himself until after the lapse of one full term is plain and unambiguous and submits another question. Such question does not apply to other executive officers. A proposal to amend the constitution by limiting the governor, or any other executive officer, to a single term of office without an intervening period of time, would have been proper at any time and would constitute a complete amendment and include therein a complete question.

The proposition that the governor could not succeed himself in the amendment until after the lapse of one full term would be just as applicable if his term was limited to two years as it is with his term of office increased to four years and if such proposition had been submitted, without submitting the question of the increased term, it would have submitted a distinct and complete question to the electorate.

In the case of Mundell v. Swedlund, 58 Idaho 209, 229,71 P.2d 434, the court had occasion to discuss the proposition of an amendment containing but a single question and cites a vast array of authorities incident thereto. In passing on the matter, it is said: "On this phase of the case we conclude that if the thing or things proposed can be divided into questions distinct and independent so that any one of them can be adopted without in any way being controlled, modified, or qualified by the other, then there are as many amendments as there are distinct and independent questions or subjects."

Among other authorities cited in said case is that of Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549, 554, 94 A.L.R. 1502, and in which the Arizona court had occasion to discuss the identical question and among other things, said: "If the different changes contained in the proposed amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment falls within the constitutional prohibition. Nor does the rule as stated unduly hamper the adoption of legitimate amendments to the Constitution. Such a document was presumably adopted deliberately, after careful preparation, as a harmonious and complete system of government. Changes suggested thereto should represent the free and mature judgment of the electors, so submitted that they cannot be constrained to adopt measures of which in reality they disapprove, in order to secure the enactment of others they earnestly desire." See, also, Lane v. Lukens, 48 Idaho 517, 283 P. 532; McBee v. Brady,15 Idaho 761, 100 P. 97; 12 C.J. 692; 16 C.J.S., Consitutional Law, § 9.

In Utter v. Moseley, supra, it is said [16 Idaho 274,100 P. 1059]:

"Under the Constitution of this state certain necessary steps are provided for in order to submit a proposed amendment to the electors of the state for their approval or disapproval; and unless these steps are followed, as held in the case of McBee v. Brady, supra, the vote of the electors of the state becomes of no consequence and cannot vitalize the question voted upon into an amendment to the Constitution. * * *

"The failure of the Legislature to follow the requirements of the Constitution in submitting the proposed judicial amendment denied to the electors of the state an opportunity to express their will * * * and the vote thereon was of no force or effect."

Furthermore, quoting from Kerby v. Luhrs, supra, it is said: "Looking at the proposition as reasonable men, we are of the opinion that the proposed amendment is a most glaring violation of the constitutional provision involved, in that it submits three separate propositions upon which each voter might, and many doubtless would, have widely different opinions, and in such manner that they are compelled either to reject all three on account of one which they may consider vicious, or else to accept two provisions they disapprove to secure the adoption of one which meets their favor. Such an amendment is logrolling of the worst type, and violates both the spirit and the letter of the Constitution."

In connection with the above it might be stated, there probably were numerous electors who were in favor of a four year term but were not in favor of the term of the governor being limited to four years and then a lapse of one full term before he became eligible to again hold the office. Or, there may have been, and probably were, numerous electors who were not in favor of extending the term of the governor, or the other executive officers, to four years, but were highly in favor of limiting the term of the governor to one term and then a lapse of at least one full term before he would be eligible to again hold the office of governor. Therefore, in voting the thing they favored they were compelled to vote for something they did not desire.

In the instant case there is no relation between the proposition of increasing the term of office of the governor and the further proposition that he is ineligible to serve more than one term without an intervening period of time.

The matter of increasing the term of the governor from two to four years, does not refer to, nor is it in any manner related to the further proposition that an intervening period of time must elapse before a governor is again eligible to qualify for the office.

The purported constitutional amendment as proposed by Senate Joint Resolution No. 1, is void, and this court should so hold. The writ should be made permanent and the Secretary of State required to accept declarations of candidacy as prayed for by plaintiff.