Johnson v. Diefendorf

GIYENS, C. J.,

Concurring in Part and Dissenting in Part.- — I concur except as to the discussion of the effective date of an emergency statute after a referendum petition has been filed, etc.

At common law statutes generally became effective from the opening day of the legislative session, which rule was never generally adopted in this country where statutes were generally considered as effective from the date of their passage and approval, and also it was universally recognized that the legislature had the right and power to fix in the statute itself the effective date. (59 C. J. 1137, 1148; vol. 1, Sutherland’s Statutory Construction, second edition, p. 308, sec. 172 et seq.; 23 Cal. Jur., “Statutes,” p. 620, sec. 21; 25 R. C. L., “Statutes,” pp. 796-803, secs. 44r-51.) Therefore in the absence of section 22 of article 3 of the state Constitution or any other such provision in the Constitution there would have been no limitation upon the legislature in fixing the effective date of its statutes. Therefore the first clause of section 22 of article 3 was a limitation upon what would otherwise have been, except as to the interdiction of

ex post facto

laws in section 16, article 1, or similar restrictive provisions of the state or federal Constitutions, the legislature’s uncontrolled power in the particular involved, and the second clause of section 22 of article 3 was not a grant of power generally but was an exception to the first restrictive clause in said section 22. The second clause, however, still left it with the legislature to fix the effective date allowing the legislature to make the effective date of emergency statutes less than the 60-day period otherwise controlling. Section 22 does not as a part of the Constitution, i. e., a constitutional pronouncement, make an emergency act effective less than 60 days after its passage but merely permits that to be done by

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the legislature, and the fixing of the effective date is a legislative function of no higher dignity than any other legislative act. When the legislature in 1933, by chapter 210, page 433, 1933 Session Laws, made section 1, article 3 of the Constitution effective and provided the machinery for referring acts of the legislature to a direct vote of the people the legislature had the right to determine the effective date of statutes so referred; as to general statutes because while section 22,

supra,

says no act shall take effect until 60 days from the end of the session at which the same shall have been passed it does not provide that the legislature may not set an effective date after that time, and as to emergency legislation the legislature had the right with reference to the functioning of the referendum to enact a special statute as they did in chapter 210,

supra,

applicable to statutes when referred.

There are obviously many various factors which may have influenced the legislature in prescribing the particular machinery they did in chapter 210,

supra,

which are not, however, at this time for judicial consideration or determination. Starting with Justice Morgan’s correct premise in holding that section 1, article 3, of the Constitution applies to all legislative acts, general as well as emergency, leads, it seems to me, to the conclusion that the referendum legislation, chapter 210, 1933 Session Laws, must apply to all legislative acts, general or emergency. There is no conflict between provisions of the Constitution, or between the statutes, or between the Constitution and the statutes, but to say that chapter 210,

supra,

does not apply to emergency laws is reading into it an exception not put there by the legislature. Furthermore, section 1 of article 3,

supra,

provides that the legislature is to provide the “conditions” and “manner” of the exercise of the referendum. The word “manner” is defined as “the way of doing anything,” “method of procedure,” “mode,” “practice” (Standard Dictionary); “a way of acting,” “mode or procedure,” “the mode or method by which something is done or by which anything happens” (Webster’s Dictionary). This word would have been therefore sufficient to authorize the way in which the law should be referred and how the election should be conducted. The framers of the

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Constitution must have meant that the legislature had power beyond this in using the word “conditions,” which word is thus defined: “a qualification or limitation annexed to an agreement, by which it may be continued, altered, or rendered of no effect upon the performance or nonperformance of something, or the happening or not happening of an uncertain event” (Standard Dictionary) ; “something established or agreed upon as a requisite to the doing or taking effect of something else,- a stipulation or provision,” “that which exists as an occasion of something else; a circumstance essential to the appearance or occurrence of something else; a prerequisite,” “that which limits or modifies the existence or character of something; a circumstance of action or being; an environmental incident; a restriction or qualification.” (Webster’s Dictionary.) This definition would seem to clearly include in its usage the fixing by the legislature of the effective date of any statute when referred.

It seems to me the proper legal and constitutional course is if section 3 of chapter 210, 1933 Session Laws, should be amended it be by the legislature rather than by judicial construction, and any act of the legislature until repealed, amended or modified is as binding on future legislators as any other group of citizens. The fatal inconsistency in the other construction contended for is that by such construction the referendum as to emergency laws is as emasculated as if section 1, article 3 of the Constitution were held to not apply to emergency laws at all, and ignores this part of section 3, chapter 210,

supra:

“

.... any measure so referred to the people shall take effect and become a law when it is approved by a majority of the votes east thereon, and not otherwise. ’ ’

While legislative interpretation is not decisive it is entitled to consideration.

(Fralick v. Guyer,

36 Ida. 648 , 213 Pac. 337 ;

Bannock County v. Citizens B. & T. Co.,

53 Ida. 159, at 176 , 22 Pac. (2d) 674 ; 12 C. J. 714, sec. 66; 6 R. C. L., “Constitutional Law,” p. 63, sec. 60; 5 Cal. Jur. “Constitutional Law,” p. 604, sec. 37; vol. I, Cooley’s Constitutional Limitations, p. 147 et seq.) The legislature has fixed as to general not emergency statutes effective dates beyond 60

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days, evidently considering they had such power.

1

Our court has not directly sanctioned such deferment but the following expressions tend at least to recognize such power:

Shoshone County v. Thompson,

11 Ida. 130, at 141 , 81 Pac. 73 ;

Gillesby v. Board of County Commrs.,

17 Ida. 586, at 608 , 107 Pac. 71 ;

Peavy v. McCombs,

26 Ida. 143, at 149 , 140 Pac. 965 ;

Idaho Power etc. Co. v. Blomquist,

26 Ida. 222, at 237 , 141 Pac. 1083 , Ann. Cas. 1916E, 282;

Northern Pacific Ry. Co. v. Chapman,

29 Ida. 294, at 299 , 158 Pac. 560 ; and at least in the above instances such legislative postponement has, so far as I have discovered, remained unchallenged.

The above

resume

it seems to me is pertinent in this, that if the legislature may extend the effective date of general statutes beyond the 60-day provision granted them in article

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3, section 22,

supra,

they may extend the effective date of an emergency act when referred to the direct vote of the people under section 1 of article 3,

supra,

beyond what would otherwise be its effective date as an emergency measure. It seems to me that this construction of the statutes and provisions of the Constitution more nearly gives to the people the broad power and control of legislation which the people, as so aptly stated by Justice Morgan, the source of all governmental authority, expressly retained to themselves by section 1, article 3, of the Idaho Constitution.

The statute in question, therefore, is in abeyance until the decision by the people in the referendum vote, and I dissent from the contrary holding.

1

1890-1891 Session Laws, p. 33, approved Feb. 6, 1891, effective July 1, 1891; 1890-1891 S. L., p. 41, approved Feb. 11, 1891, effective July 1, 1891; 1895, S. L., p. 82, Act approved March 9, 1895, effective July 1, 1895; 1905 S. L., p. 99, approved March 6, 1905, effective second Monday of January, 1906; 1905 S. L., p. 145, approved March 8, 1905, effective July 1, 1905; 1907 S. L., p. 314, approved March 13, 1907, effective October 1, 1907; 1911 S. L., chapter 123, p. 385, ap’proved Feb. 28, 1911, effective July 4, 1911; 1911 S. L., chapter 204, p. 673, approved March 10, 1911, effective September 1, 1911; 1913 S. L., chapter 76, p. 327, approved March 6, 1913, to take effect July 30, 1913; 1913 S. L., chapter 128, p. 475, approved Mareh 11, 1913, effective second Monday in January, 1915; 1913 S. L., chapter 159, p. 527, approved March 12, 1913, effective Sept. 1, 1913; 1913 S. L., chapter 190, p. 628, approved March 14, 1913, effective July 1, 1913; 1917 S. L., chapter 8l, p. 252, approved March 16, 1917, effective in part from July 1, 1917, remainder January 1, 1918; 1917 S. L., chapter 91, p. 314, approved March 15, 1917, effective January 1, 1919; 1917 S. L., chapter 107, p. 386, approved Mareh 7, 1917, effective 18 months from passage and approval; 1917 S. L., chapter 109, p. 387, approved Mareh 5, 1917, effective taxing year of 1918; 1917 S. L., chapter 125, p. 414, approved March 13, 1917, effective 6 months after passage and approval; 1919 S. L., chapter 149, p. 443, approved March 6, 1919, effective January 1, 1920; 1919 S. L., chapter 151, p. 474, approved March 3, 1919, effective January 1, 1920; 1919 S. L., chapter 154, p. 493, approved Mareh 11, 1919, effective Jan. 1, 1920; 1919 S. L., chap. 157, p. 516, approved March 6, 1919, effective August 1, 1919; 1919 S. L., chapter 193, p. 578, approved

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March 14, 1919, effective upon approval at next general election; 1921 S. L., chapter 177, p. 371, approved March 1, 1921, effective upon three conditions in the future; 1921 S. L., chapter 197, p. 400, approved March 7, 1921, effective September 1, 1921; 1923 S. L., chapter 75, p. 82, approved March 5, 1923, effective January 1, 1924; 1923 S. L., chapter 114, p. 144, approved March 9, 1923, effective January 1, 1924; 1923 S. L., chapter 162, p. 237, approved March 15, 1923, effective January 1, 1924; 1927 S. L., chapter 29, p. 31, approved Feb. 17, 1927, effective July 1, 1927; 1927 S. L., chapter 88, p. 107, approved March 1, 1927, effective Jan. 1, 1928; 1927 S. L., chapter 217, p. 311, approved March 12, 1927, effective July 1, 1927; 1927 S. L., chapter 244, p. 374, approved March 14, 1927, effective Jan. 1, 1928; 1927 S. L., chapter 245, p. 389, approved March 14, 1927, partially effective after July 1, 1927; 1927 S. L., chapter 260, p. 482, approved March 15, 1927, effective January 1, 1928; 1927 S. L., chapter 262, p. 546, approved March 15, 1927, effective July 1, 1927; 1929 S. L., chapter 39, p. 49, approved Feb. 21, 1929, effective June 1, 1929; 1929 S. L., chapter 56, approved Feb. 21, 1929, effective July 1, 1929; 1929 S. L., chapter 70, p. 108, approved Feb. 26, 1929; effective July 1, 1929; 1929 S. L., chapter 196, p. 372, approved March 15, 1929, effective Dee. 1, 1929; 1929 S. L., chapter 233, p. 455, approved March 16, 1929, effective Jan. 1, 1930; 1931 S. L., chapter 122, p. 210, approved March 13, 1931, effective next fiscal year; 1931 Extra. S. L., chapter 2, p. 6, approved March 17, 1931, effective July 1, 1931; 1931 Extra. S. L., chapter 3, p. 57, approved March 17, 1931, effective July 15, 1931; 1933 S. L., chapter 113, p. 179, approved March 1, 1933, effective July 1, 1933; 1933 Extra. S. L., chapter 16, p. 29, approved July 1, 1933, effective upon ratification by Congress and Wyoming; 1935 S. L., chapter 88, p. 154, approved March 5, 1935, effective July 1, 1935.