Summary
holding that a ballot question that asked whether the state constitution should be amended such that the terms of office of various officials "shall be limited to four years" was invalid for failing to disclose that terms were already limited to two years under then-existing law
Summary of this case from City of Honolulu v. StateOpinion
No. 5452.
December 19, 1929.
Original proceedings on application for a Writ of Mandamus to compel the defendant to call a general election as provided by chapter 13 of the 1929 Idaho Session Laws. Granted.
Hawley Hawley, Sweeley Sweeley and Frank L. Stephan, for Plaintiff.
The defendant in his brief contends that the form of ballot or question submitted on the ballot was sufficient. With this contention we cannot agree. Nor do we concede that any of the cases cited in defendant's brief in support of that contention are in point. Let it be understood at this point that we are not contending against the rules announced in the cases cited, but cannot accede to the application or attempted application of the rules announced therein on the part of the defendant to support his contention. Plaintiff concedes that the whole of the proposed amendment need not be submitted in the form of a question or otherwise to the electors and that the question or formula submitted to the people need not contain all of the phraseology of the proposed amendment; it will suffice if the question or formula states generally the thing proposed to be done by amendment. Had the rules or principles announced in the cases cited by the defendant to support his contention been followed in submitting the amendment to sec. 1 of art. 4 of the Idaho Constitution the plaintiff would not now contend that the proposed amendment had not been properly submitted. The defendant has failed to take into consideration in the instant case that while a proposed amendment may be submitted by general question or formula the general question or formula used must not be misleading or deceptive.
It is plaintiff's position in the instant case that the legislature has proposed in section 1 of said resolution to definitely fix the term of certain officers at four years and has submitted to the electors an entirely different question in direct contravention of the rule announced in McBee v. Brady, 15 Idaho 761, 100 P. 97, to the effect that the legislature may not propose one amendment to the Constitution and submit another. It is alleged in plaintiff's complaint on file herein that the question submitted to the electors was susceptible of several constructions.
W.D. Gillis, Attorney General, and Leon M. Fisk, Fred J. Babcock, S.E. Blaine and A.C. Cordon, Assistant Attorneys General, for Defendant.
The question that first presents itself is whether or not such a statement sufficiently identifies or is complete enough in form to advise the voter of the question upon which he is to signify his approval or disapproval. It is defendant's view that a long line of cases uphold the view that the question need contain only sufficient information as to identify the subject to the voter.
In the case of State ex rel. Thompson v. Winnett, 78 Neb. 379, 15 Ann. Cas. 781, 110 N.W. 1113, 10 L.R.A., N.S., 149, the court said: "The provision of the constitution is that the amendment shall be submitted to the electors for approval or rejection, but this does not require that the whole amendment so submitted shall be upon the ballot. Enough was printed upon the ballot to identify the amendment referred to and to show its character and purpose and that is all that is required."
The purpose of the amendment in this case was to create a state Railway Commission.
In the case of Cudihee v. Phelps, 76 Wn. 314, 136 P. 367, at page 372, the court declares that the statement upon the ballot does not constitute the notice given to the people of the contents of the proposed amendment and that the statement upon the ballot was not required to be more than a mere reference in very general terms to the constitutional amendment to be voted upon. ( Fellows v. Eastman, 126 Me. 147, 136 Atl. 810; Cooney v. Foote, 142 Ga. 647, Ann. Cas. 1916B, 1001, 93 S.E. 537; Goolsby v. Stephens, 155 Ga. 509, 117 S.E. 439; State v. City of St. Louis, 319 Mo. 497, 5 S.W.2d 1080; Lovett v. Ferguson, 10 S.D. 44, 71 N.W. 765; Murphy Chair Co. v. Attorney General, 148 Mich. 563, 112 N.W. 127; 20 C. J. 150.)
It is contended by the plaintiff that the amendment was not submitted to the electors of the state in a proper and legal manner or form. The question submitted and upon which the electors voted at the election held in November, 1928, read as follows:
"Shall Section 1 of Article IV of the Constitution be amended to provide that the term of office of Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, Attorney General and Superintendent of Public Instruction shall be limited to four years?"
Petition of Ira B. Lane for a writ of mandamus against Fred E. Lukens, Secretary of State, compelling him to call a general election as provided by chap. 13 of the 1929 Idaho Session Laws.
The defendant has filed a general demurrer. In support thereof, he invokes the constitutional amendment to sec. 1, art. 4, of the Idaho Constitution, claimed by him to have been adopted by the electorate on the sixth day of November, 1928. Petitioner attacks the validity of such amendment, contending that the question as submitted to the voters was misleading, ambiguous and directly in conflict with the amendment proposed; that the amendment had not been entered on the journals of both houses of the legislature, and that it was not retroactive.
House Joint Resolution No. 8., adopted by the 19th session of the Idaho legislature, read as follows:
"HOUSE JOINT RESOLUTION No. 8.
"A Joint Resolution Proposing Amendment of Section 1 of Article IV of the Constitution, and Submitting to the Electors of the State for Their Approval or Rejection the Question of Whether Said Section Shall be so Amended That the Term of Office of the Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction, Shall be Four Years Instead of Two.
"Be It Resolved by the Legislature of the State of Idaho:
"SECTION 1. That Section 1 of Article IV of the Constitution be amended to read as follows:
" 'Section 1. The executive department shall consist of a Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, Attorney General and Superintendent of Public Instruction, each of whom shall hold his office for four years beginning on the first Monday in January next after his election, except as otherwise provided in this constitution. The officers of the executive department, excepting the Lieutenant Governor, shall during their terms of office, reside at the seat of government, where they shall keep the public records, books and papers. They shall perform such duties as are prescribed by this constitution and as may be prescribed by law.'
"SEC. 2. The question to be submitted to the electors of the State of Idaho at the next general election shall be as follows:
" 'Shall Section 1 of Article IV of the Constitution be amended to provide that the term of office of Governor, Lieutenant Governor, Secretary of State, State Auditor, State Treasurer, Attorney General and Superintendent of Public Instruction shall be limited to four years?'
"SEC. 3. The Secretary of State is hereby directed to publish this proposed constitutional amendment for six consecutive weeks prior to the next general election in one newspaper of general circulation published in each county of the State."
From the above, it will be seen that, whereas the proposed amendment expressly fixed the term of office as a period of four years, thereby extending it from the then period of two years to four, the question submitted the individual voter was whether or not the term should be merely limited to that duration, leaving the actual time of incumbency undetermined. The query immediately arising is addressed to the significance of the language that confronted the voter, on the ballot. Could he, by attributing to the words employed their usual meaning in common parlance, have understood other than that a successful candidate might, under such amendment, hold office for one, two, three or four years? As far as the average man is concerned, including the writer of this opinion, the answer is in the negative.
It may be said that the voter already knew that the term of office was two years. But how, in sooth, could he know that, after the adoption of an amendment limiting an unnamed term to four years there would be retained in the constitution any mention of two years at all? On the contrary, the former constitutional provision as to terms of office would have been wholly abandoned; and in its stead would have appeared a declaration that the term of certain offices "shall be limited to four years."
Defendant endeavors to meet the situation by urging that, inasmuch as the amendment had been duly published, the voter was given sufficient notice; and whatever ambiguity there might have been suggested by the question propounded by the ballot had been cured thereby. Notwithstanding the opinion expressed by various courts, notably, that of Washington in Cudihee v. Phelps, 76 Wn. 314, 136 P. 367, that the publishing of the proposed amendment serves as notice to the people, it will be found that in nearly all these cases it is uniformly held that the question on the ballot must refer to such amendment in general terms. This particular case cites as authority State ex rel. Thompson v. Winnett, 78 Neb. 379, 15 Ann. Cas. 781, 110 N.W. 1113, 1118, 10 L.R.A., N.S., 149, wherein the court cogently states the crux of the matter as follows:
"Enough was printed on the ballot to identify the amendment referred to and to show its character and purpose, and that is all that is required." (Italics ours.)
Section 1 of art. 20 of the Idaho Constitution, with respect to the adoption of amendments, among other things provides:
". . . . 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 for at least six consecutive weeks, prior to said election."
From the language employed, it is clear that the publication constitutes no part of the submission, but is an act mandatorily directed as a prerequisite of such submission. The submission is to be made at the ensuing election by immediate contact with the voter; and, under the law, the only method of submitting a public question to the individual voter is by proper ballot advising him directly or by general reference to the actual issue to be determined. And, how was the amendment definitely fixing the term of office at four years, in this instance, submitted? Simply by a question in conflict with an idea of fixation, and diametrically opposed to any idea of extension, such as from a point certain to one more remote.
The word "limit" in its very inception carried the idea of "extreme boundary" that it carries now. As the ancient "cowpath" of the Latins, it signified a res "quam ultra, non," "beyond which, not," a definition not yet improved on. The "character and purpose" of the amendment proposed was fundamentally antagonistic to the "character and purpose" indicated by the printed question. The provisions of article 20 are mandatory. ( McBee v. Brady, 15 Idaho 761, 100 P. 97, 104.) In that case, Justice Stewart said:
"The questions submitted should be the same questions proposed as the amendment or amendments. The Legislature cannot propose one question and submit to the voters another."
That is just what was done here. The amendment is accordingly void. In view of the conclusion reached, it is not deemed necessary to pass upon the merits of the remaining objections urged by petitioner. Writ granted. Costs to petitioner.
Budge, C.J., and Givens, Wm. E. Lee and Varian, JJ., concur.