Epperson v. Howell

154 P. 621 | Idaho | 1916

MOBGAN, J.

This proceeding was commenced for the purpose of procuring the issuance of a writ of mandate requiring defendants, who constitute the board of county commissioners of Ada county, to immediately take action upon plaintiff’s application for employment, made pursuant to chap. 27, Sess. Laws 1915 (p. 80), or to employ him or show cause why they have not done so.

In the application for the writ and in the return thereto the parties are denominated petitioner and respondents, respectively. The title of the cause has been reformed to read as above stated, in order to conform to the provisions of sec. 4955, Bev. Codes, which provides: “The party prosecuting a special proceeding may be known as the plaintiff, and the adverse party as the defendant.” (Connolly v. Woods, 13 Ida. 591, 92 Pac. 573; Bragaw v. Gooding, 14 Ida. 288, 94 Pac. 438.)

Plaintiff, in his application, alleges the necessary statutory facts entitling him to be employed under the provisions of chap. 27, supra. An alternative writ was issued and served and, by way of return, defendants admitted the facts alleged and demurred to the application, asserting that the legislative enactment under consideration violates the constitution of the state of Idaho in a number of particulars, some of which will be hereinafter discussed.

Chap. 27, supra, provides that the boards of county commissioners of the various counties in Idaho are authorized and required to designate certain work upon the public highway, or such other work as they may determine upon, as emergency employment, and to fix the compensation of persons employed in such work. It is therein provided that any person who is a citizen of the United States and who has 'been a resident of Idaho for not less than six months shall be entitled to emergency employment subject to the provisions of the chapter. An applicant for employment is required to appear before the clerk, or any member of the board of county commissioners, and to make oath or affirmation to the following facts: That he is a citizen of the United States,- that he has been a resident of the state of Idaho for an uninterrupted period of not less than six months; that he is a resident of the county in which such application is made, and has been for more than ninety , days last past ,- that he is unable to secure other employment; that he does not own or possess negotiable, real or personal property of a total value of more than one thousand dollars; that he hast or has not, as the case may 'be, dependents, and if he has such dependents, name them individually and separately and state the relationship of each to him; that he has or has not, as the case may be, been employed at emergency employment within the state of Idaho during the twelve months last past; that he wall perform the labor to which he may be assigned with due and reasonable diligence and in a fair and workmanlike manner to the best of his ability, and such applicant must be identified and vouched for by some freeholder in the county where application is made.

The manner in which payment shall be made, out of the current expense fund of the county, for labor performed at emergency employment, and the manner of keeping account of such employment, and the manner of keeping account of such expenditures and of certifying the same to the county auditor, are provided for, and secs. 12, 14, and 15 of the chapter are as follows:

‘ ‘ Sec. 12. The County Auditor shall certify to the Auditor of the State of Idaho in his annual return of State taxes from the county, a statement of the total sum expended within the county for Emergency Employment and fifty (50) per cent of the amount of such total sum shall be deducted from the sum of the general taxes collected by the State of Idaho from the county in which such Emergency Employment was provided.”

“Sec. 14. It shall be the duty of the Auditor of the State of Idaho to certify to the State Treasurer a correct account of all sums reported from the various counties of the State of Idaho as Emergency Employment deductions from the general State tax returns.

“See. 15. It shall be the duty of the State Treasurer to keep in his office a true and correct record of all sums reported as Emergency Employment expenditures from the various counties.”

It will be at once observed that this chapter provides for the deduction, by a county, from the moneys due from it to the state, arising from taxation, of one-half of the amount it has been required to expend in giving emergency employment. Defendants contend that the chapter is void because it is in conflict with see. 7, art. 7, of the constitution of Idaho, which provides: “All taxes levied for state purposes shall be paid into the state treasury, and no county, city, town, or other municipal corporation, the inhabitants thereof, nor the property therein; shall be released or discharged from their or its proportionate share of taxes to be levied for state purposes.” This section of the constitution is mandatory, and it is entirely clear that the legislative enactment under consideration, in so far as it provides for diverting from the state treasury money due to the state from the counties, arising from taxation, and for paying it out by the counties to those engaged at emergency employment, cannot be sustained.

No appropriation of money has been made with which to pay the state’s proportion’ of the expense of giving emergency employment, and it is urged by defendants that the chapter is unconstitutional because it conflicts with see. 13, art. 7, of the constitution, which is as follows: “No money shall be drawn from the treasury, but in pursuance of appropriations made by law. ’ ’

An appropriation, within the meaning of the section of our constitution last above quoted is authority from the legislature expressly given in legal form, to the proper officers, to pay from the public moneys a specified sum, and no more, for a specified purpose, and no other. It follows that no money may lawfully be paid from the treasury except pursuant to and in accordance with an act of the legislature expressly appropriating it to the specific purpose for which .it is.paid. No money having been appropriated for that purpose, the state is as effectually precluded by sec. 13, art. 7, from paying its proportionate share of the expense of giving emergency employment as is the county from retaining it from the state treasury by see. 7, art. 7, of the constitution. (Kingsbury v. Anderson, 5 Ida. 771, 51 Pac. 744; Kroutinger v. Board of Examiners, 8 Ida. 463, 69 Pac. 279; and Jeffreys v. Huston, 23 Ida. 372, 129 Pac. 1065.)

Our attention is also directed to the fact that no provision is made for the submission of claims against the state, arising out of emergency employment, to the state board of examiners, but, upon the other hand, payment of funds belonging to the state, without such examination, is attempted to be provided for. This feature of the chapter is in contravention of sec. 18, art. 4, of the constitution, which grants to that board power to examine all claims against the state, except for salaries or compensation of officers fixed by law. (Winters v. Ramsey, 4 Ida. 303, 39 Pac. 193.)

Certain other objections have been made touching the validity of this legislative enactment, but in view of the conclusions reached upon those heretofore mentioned, it is not deemed necessary to discuss them.

It is contended by counsel for plaintiff that secs. 1 to 11, inclusive, and secs. 13 and 16 of the chapter under consideration constitute a complete rule of action, and that, conceding secs. 12, 14 and 15, which attempt to provide for contribution by the state toward the expense of furnishing emergency employment, to be unconstitutional, the legislative enactment may still be sustained as a law requiring the several counties, unaided by the state, to furnish and pay for such employment.

That the chapter is capable of being so divided, and that, by striking out secs. 12, 14 and 15, a complete law would remain, placing the burden of giving emergency employment upon the several counties, to persons residing therein, is true.

In support of the doctrine that if one provision of a statute is invalid the other provisions are not affected by its invalidity unless they are so dependent upon each other that they cannot be divided without defeating the object of the statute, we are cited to the ease of Gillesby v. Board of County Commrs., 17 Ida. 586, 107 Pac. 71, wherein what seems to be the true rule is quoted from Lewis’ Sutherland Stat. Construction, sec. 296, as follows:

“Where a part only of a statute is unconstitutional, and therefore void, the remainder may still have effect under certain conditions.....The point or test is ... . whether they are essentially and inseparably connected in substance. If so connected, the whole statute is void.

“If one provision of an enactment is invalid and the others valid, the latter are not affected by the void provision, unless they are plainly dependent upon each other, and so inseparably connected that they cannot be divided without defeating the object of the statute. And the converse is true.”

It is said in Cunninghaon v. Thompson, 18 Ida. 149, 108 Pac. 898: “It is also settled in this state that if the provisions of an act are connected in subject matter, dependent on each other, and designed to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other, then if one part fall the entire act must fall.” (See, also, Ferbrache v. Drainage Dist. No. 5, 23 Ida. 85, and additional cases therein cited on page 94, Ann. Cas. 1915C, 43, 128 Pac. 553, 44 L. R. A., N. S., 538.)

It seems to u's the provisions of the chapter under consideration are essentially and inseparably connected in substance; that they are plainly dependent upon each other, and that they cannot be divided without defeating the object of the legislature, which was to give emergency employment to those in need of it and to share the burden of the expense thereby incurred between the county wherein the employment is given and the state at large.

Since secs. 12, 14 and 15 are clearly violative of the constitution, and since by sustaining the remaining sections a considerable burden of expense would be placed upon counties called upon to give emergency employment to a large number of persons from which burden counties required to employ few or none would be exempted and, since it is clear that it was not the intention of the legislature to do so, the entire chapter must be held to be invalid.

The demurrer to the application for a writ of mandate is sustained, the alternative writ heretofore issued is quashed, a peremptory writ is denied and the case is dismissed. Costs are awarded to defendants.

Sullivan, C. J., and Budge, J., concur!