115 P. 824 | Idaho | 1911
This is an application for a writ of mandate to compel the defendant, as secretary of state of the state of Idaho, to affix his signature to bonds of the state of Idaho, authorized by acts of the legislature of the eleventh session, aggregating the sum of $1,161,500. The bonds so authorized are for the purposes hereinafter stated, and run for periods of time, bear the rate of interest, and are in the amounts as follows:
*21 Time. Rate. Amount.
Lincoln-Twin Palls Bridge................ 6 years 5% $ 5,000.00
Paris Franklin Road.....................20 “ 4% 2.500.00
Kootenai Wagon Road...................20 “ 5% 25.000.00
Leadore-Paksimeroi Road................20 “ 5% 5.000.00
Salmon-Ckallis Road.....................20 “ 4J% 7.500.00
Mountainkome Bridge....................20 “ 4% 15.000.00
Canyon-Snake River Bridge....... 20 “ 5% 25.000.00
Nortk and Soutk Wagon Road............20 “ 4% 20.000.00
Deaf and Blind Sekool...................20 “ 4% 30.000.00
St. Maries Bridge.......................20 “ 4% 9.000.00
Nortk Idako Insane Asylum..............20 “ 4% 35.000.00
Capitol Building.........................20 “ 41% 750,000.00
Idako Sanitarium........................20 “ 4% 25.000.00
Soutk Fork Bridge.......................20 “ 4% 5.500.00
Boss Fork Road.........................20 “ 4% 20.000.00
University of Idako......................20 “ 4% 75.000.00
Burley Bridge...........................20 “ 5% 10.000.00
Wkitehird-Dumacque Road................20 “ 4J% 4.000.00
Twin Falls Lincoln County Bridge........20 “ 4% 6.000.00
Idako Oregon Bridge.....................10 “ 5% 10,000.00
Soldiers Home...........................20 “ 4% 13.000.00
State Penitentiary.......................20 “ 4% 30.000.00
Industrial Training Sekool................20 “ 4% 33.000.00
It is alleged that the bills authorizing and directing the bond issues for the foregoing purposes and amounts were duly and regularly passed by the legislature and approved by the governor, and that they are in conformity with and are authorized by sec. 1 of art. 8 of the state constitution as the same was amended and adopted by a vote of the people at the November election, 1910. It is alleged by the petition that the defendant refuses to affix his signature to the bonds hereinbefore enumerated, for the reason assigned by him that the amendment ■ to sec. 1 of art. 8 of the constitution as adopted at the November election, 1910, is so vague, indefinite, ambiguous. and unintelligible that it renders the same void, and that the amendment, therefore, never affected or altered the original provisions as embodied in see. 1 of art. 8 of the constitution, and that the bond issue thus authorized would exceed the debt limitation of the constitution as originally embodied in see. 1 of art. 8.
The plaintiff has demurred to the answer on the ground that it does not state facts sufficient to constitute a defense to the cause of action pleaded. It is admitted that if the amendment to see. 1, art. 8, of the constitution, as adopted by the people at the November election, 1910, is intelligible, valid and operative, that the bond issue acts of the eleventh session of the legislature are also valid and binding, and that it is the duty of the secretary to attach his signature to the bonds above enumerated in conformity with the several acts authorizing the bond issues.
The whole difficulty in this case arises over what is alleged by the plaintiff to be a mere omission of the word “not” from the first line of section 1 embodied in house joint resolution No. 3 as the same was finally enrolled, signed and filed with the secretary of state.
Sec. 1 of art. 8 of the state constitution, which it was proposed to amend, reads as follows:
“The Legislature shall not in any manner create any debt or debts, liability or liabilities, which shall singly or in the aggregate, exclusive of the debt of the Territory at the date of its admission as a state, exceed the sum of one and one-half per centum upon the assessed value of the taxable property in the state, except in case of war to repel an invasion or suppress insurrection, unless the same shall be authorized by law for some single object of work to be distinctly specified therein, which law shall provide ways and means, exclusive of loans, for the payment of the interest of such debt or liability, as it falls due; and also for the payment and discharge of the principal of such debt or liability, within twenty (20) years of the time of the contracting thereof, and shall be irrepealable until the principal and interest thereon shall be paid and discharged; but no such law shall take effect until at a general election it shall have been submitted to the people, and shall have received*23 a majority of all the votes cast for and against it at such election; and all moneys raised by the authority of such law, shall be applied only to the specified object therein stated, or to the payment of the debt thereby created, and such law shall be published in at least one newspaper in each county, or city and county, if one be published therein, throughout the state, for three months next preceding the election at which it is submitted to the people. The legislature may at any time after the approval of such law, by the people, if no debts shall have been contracted in the pursuance thereof, repeal the same.”
At the tenth legislative session a resolution was introduced proposing an amendment to the foregoing section, and the resolution was duly and regularly adopted by both houses of the legislature, and was finally enrolled and certified by the presiding officers and filed with the secretary of state. The avowed purpose of the resolution, as indicated by the title to the same (Sess. Laws 1909, p. M7), was “to permit the legislature to authorize a bond issue sufficient to complete the construction and furnishing of the State Capitol Building at Boise.”
Section 2 of the resolution provided the manner and form of submitting the question to the people, and required that it be submitted in the following words:
“Shall Section one of article eight of the Constitution of the State of Idaho be amended so as to permit the Legislature to authorize a sufficient bond issue or make a sufficient appropriation to complete the construction and furnishing of the State Capitol Building at Boise, Idaho?”
The amendment itself, however, to sec. 1, art. 8, as embodied in the resolution and finally enrolled and filed with the secretary of state, reads as follows:
“Section 1. The Legislature shall in any manner create any debt or debts, liability or liabilities, which shall singly or in the aggregate, exclusive of the debt of the Territory at the date of its admission as a State, and exclusive of debts or liabilities incurred subsequent to January 1, 1911, for the purpose of completing the construction and furnishing of the*24 State Capitol Building at Boise, Idaho, exceed the sum of one and one-half per centum upon the assessed value of the taxable property in the State, except in cáse of war to repel an invasion or suppress insurrection, unless the same shall be authorized by law for some single object or work to be distinctly specified therein, which law shall provide ways and means, exclusive of loans, for payment of the interest of such debt or liability as it falls due and also for the payment and discharge of the principal of such debt or liability, within twenty (20) years of the time of the contracting thereof, and shall be irrepealable until the principal and interest thereon shall be paid and discharged; but no such law shall take effect until at a general election it shall have been submitted to the people, and shall have received a majority of all the votes cast for and against it at such election; and all moneys raised by the authority of such laws, shall be applied only to specified objects therein stated, or to the payment of the debt thereby created, and such law shall be published in at least one newspaper in each county or city and county, if one be published therein, throughout the State for three months next preceding the election at which it is submitted to the people. The Legislature may at any time after the approval of such law, by the people, if no debts shall have been contracted in the pursuance thereof, repeal the same.”
It will be noted that the amendment embodies the identical language of the original section, with the exception that the word “not” is omitted after the word “shall” in the first line of the section, and that the following additional words are inserted in the first part of the sentence and immediately after the clause which excludes the debt of the territory at the date of the admission of the state: “And exclusive of debts or liabilities incurred subsequent to January 1, 1911, for the purpose of completing the construction and furnishing of the State Capitol Building at Boise, Idaho.” Now, it is apparent from the title to the resolution and also from section 2 thereof, which provided the manner and form of the submission to the people, that the only purpose of the amend
We are not unmindful of 'the general rule applicable in construing amended statutes, namely, that where words have been omitted from the amendment that were contained in the section intended to be amended, the law-making body will be presumed to have deliberately and intentionally omitted such words. This rule, however, must be applied in the light of other well-recognized rules, one of which is that where a' statute is apparently contradictory in its parts, or a literal reading would render it contradictory, it must be so construed in the light of the purposes and objects to be accomplished and the manifest intent of the law-making body as to reconcile the several provisions and give the whole a practical and sensible effect. Here the title to the resolution, the section providing for the submission, the additional language actually inserted in the section by way of amendment, and the context and attending indications, all lead to the inevitable conclusion that the amendment was treated and considered and understood by both the legislature in submitting it and the people in adopting, as if the word “not” was contained in the first line immediately following the word “shall,” and to so read it gives effect to all its parts and renders it harmonious and intelligible. To read it literally
We are not wholly without precedent on this question. In Hutchings v. Commercial Bank, 91 Va. 68, 20 S. E. 950, the court was confronted with an act of the legislature in relation to “equitable separate estates.” The act, among other things, contained a provision that separate estates therein enumerated should be held according “to the provisions and limitations of this act so far as they are in conflict therewith.” It was contended that the word “not” had been omitted and that
In Haney v. State, 34 Ark. 263, the court had under consideration the question of the power and authority of the court to substitute one word for another in a legislative act in order to make the • act express what was evidently meant by the legislature, and thereby give the act force and effect. In discussing the power and the duty of the court in such a case, it was said:
“It is very true, as a general rule of construction, that where the language of an act is plain and unambiguous, the courts must give it effect, as it stands, or declare the law unconstitutional. But this rule is subject to much qualification, and does not apply to cases of plain clerical errors, where it is obvious that the legislature did not intend to use the word as written, and it is further apparent what word they did, intend. A mistake of this nature may be corrected by the courts, upon as sound principle as a mistake in a deed. It is not judicial legislation, nor judicial interference with the legislative will. It is in support of the*29 legislative will, and wholly distinct from the reprehensible practice of warping legislation to suit the views of the courts as to correct policy. The only conditions to be observed in the exercise of this power of literal correction are, that the courts should be thoroughly and honestly satisfied of the legislative intent, irrespective of the policy of the act.”
From what has been said we conclude that the amendment is valid and operative, and that it was the intention of the legislature in submitting it and of the people in voting to adopt it that it should retain the debt limitation and should read: “The legislature shall not in any manner create any debt,” etc., and that authority should be conferred on the legislature to issue bonds sufficient to complete and furnish the State Capitol Building. The demurrer is sustained and a peremptory writ will issue. No costs awarded.