Smith v. Cenarrusa

SPIEPARD, Justice.

The facts in this case are not disputed. We are asked to determine whether the method prescribed in our constitution for revision of the constitution.is the sole and exclusive method. In actuality what we are being asked to consider and rule upon is the procedure for the adoption of a new constitution. Senate Joint Resolution 122 of the 1970 session of the Idaho Legislature prescribes a technique for revising the constitution of the state of Idaho in a manner not specifically authorized by the constitution. The plaintiff, Raymon L. Smith, brought this action ' seeking a declaratory judgment that Senate Joint Resolution 122 is unconstitutional and void. He also asked that the defendant Pete T. Cenarrusa, as Secretary of' State, be enjoined from publishing the proposed constitution as a requisite notice preliminary to submission of that constitution to the voters of the state for approval or rejection. The district court issued judgment as prayed for by the plaintiff and defendant Cenarrusa has appealed.

In 1965 the Idaho Legislature enacted House Bill No. 280 (Chapter 317, Idaho Session Laws of 1965) which called a convention to revise or amend the constitution of this state at a time and place to be specified by the Governor but not more than 14 months following a general election in which a majority of the electors might authorize a convention. The number of delegates to such convention and their qualifications and mode of election, the meeting and organization of the convention, the duties and duration of the convention and the financing therefor were also provided therein. All of the foregoing provisions of the said House Bill No. 280 were to be effective only if a majority of the electors voting in a general election authorized such a convention.

In addition to the foregoing provisions of House Bill No. 280, Secs. 11-14 thereof provided for the creation of a Commission on Constitutional Revision. The appointment and term of the 15 members of the Commission, the representation of geographical, economic and other interests within the state of Idaho, the organization and duties of the Commission, their pay and allowances and the assistance of the Legislative Council were all provided for in said House Bill No. 280. All of said provisions relating to the Constitutional Revision Commission were to become effective on July 1, 1965.

No person serving as a member of the said Commission was to be eligible for election as a delegate to the constitutional convention and the Commission was charged with making provisions for a constitutional convention in the event that one was authorized by the people of the state at a general election.

It is obvious that the 1965 session of the Idaho Legislature contemplated the calling of a constitutional convention for revision of the Idaho Constitution in the event that such was authorized by the voters of Idaho at a general election. It is equally obvious that the Commission on Constitutional Revision was to be only an adjunct and a preliminary to the proposed constitutional convention.

From the year 1965 until 1970, the legislature took no action to implement the provision of House Bill No. 280 by submitting to the voters the question of whether a constitutional convention should be called. During those years, however, the Commission on Constitutional Revision worked diligently in drafting a proposed revision of the Idaho Constitution. Information concerning its work was widely disseminated and a great many public hearings on the proposed new constitution were held both by the Commission and by the Legislative Council in various portions of the state.

The proposed revision of the Idaho Constitution was submitted by the Commission on Constitutional Revision to the second regular session of the legislature in 1970. That session of the legislature enacted Senate Bill No. 1599, which sought to amend Chapter 317 of the Laws of 1965 (House Bill No. 280) by striking all references therein to a constitutional convention and in effect converting that piece of legislation into one creating solely a Constitutional Revision Commission. It also directed the Commission, if its proposed revised constitution was approved by the legislature, to submit that proposed constitution directly to the electors of the state for approval or rejection. Senate Bill No. 1599 was, however, vetoed by Governor Samuelson.

Thereafter, Senate Joint Resolution 122 of the second regular session of the Fortieth Legislature in 1970 was passed by the requisite two-thirds majority of each house. It proposed a revised constitution for the state of Idaho (as drafted and recommended by the Commission on Constitutional Revision) and directed that the proposed revised constitution should be submitted directly to the electors of the state of Idaho at the next general election for approval or disapproval. The Secretary of State was directed to cause the proposed constitution to be published in newspapers of general circulation throughout the state of Idaho. Section 1 of said Senate Joint Resolution 122 provided:

“The Legislature of the state of Idaho does not deem it necessai'y to call a Constitutional Convention for the purpose of submitting a revised Constitution to the electors. This revised Constitution shall he submitted for adoption or rejection, by majority vote of the electors voting on this proposal, at the next general election to be held on the Tuesday after the first Monday in November, 1970.”

The focus of the dispute herein is Art. XX of the Idaho Constitution which provides :

"§ 1. How amendments may be proposed. — 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.

“§ 2. Submission of several amendments. — 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.

“§ 3. Revision or amendment by convention. — Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this Constitution, they shall recommend to the electors to vote at the next general election, for or against a convention, and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall at the next session provide by law for calling the same; and such convention shall consist of a number of members, not less than double the number of the most numerous branch of the legislature.

“§ 4. Submission of revised constitution to people. — Any Constitution adopted by such convention, shall have no validity until it has been submitted to, and adopted by, the people.”

The trial court held, and it is not disputed herein, that the proposed changes to be made in the Idaho Constitution by Senate Joint Resolution 122 are a revision rather than an amendment. Senate Joint Resolution 122 proposes a massive and radical change in the constitution and there can be no basis for characterizing these changes as mere amendments. The requirements of Secs. 1 and 2 of Art. XX of the Idaho Constitution are thus inapplicable to this controversy. Thus, the central question is whether Sec. 3 of Art. XX of the Idaho Constitution makes revision by a constitutional convention the exclusive method of revising the Idaho Constitution.

The respondent herein argues that McBee v. Brady, 15 Idaho 761, 100 P. 97 (1909), governs the question before us. In McBee the validity of amendments to the Idaho Constitution were challenged because they had not been submitted individually as Sec. 2 of Art. XX of the Idaho Constitution seems to require. The court, in holding those amendments to be invalid, stated:

“ * * * when the electors of the state have incorporated into the fundamental law the particular manner in which the same [the constitution] may be altered or changed, then any course which disregards that express will is a direct violation of that fundamental law.”

Holding as we have that this case involves not amendments but a massive revision of our constitution, we do not believe the language in McBee applicable to the case at bar.

Respondent also relies upon the case of McFadden v. Jordan, 32 Cal.2d 330, 196 P.2d 787 (1948). Although respondent’s position finds support in some of the Ianguage therein, the factual situation was substantially different than is presented herein. In McFadden it was sought by initiative to place on the ballot a proposed “amendment” to the California Constitution. The California Constitution authorized the initiative method for placing constitutional amendments before the voters of California. However, the California court held that because of the sweeping changes contemplated by the initiative the proposal was in actuality a complete revision of the constitution and therefore was not authorized to be presented as an “amendment” under the initiative proceedings of the California Constitution. As heretofore stated, the language of McFadden supports respondent’s position herein, but that language in turn was taken from Livermore v. Waite, 102 Cal. 113, 36 P. 424 (1894), which case was also concerned with amendment of the constitution rather than revision. We therefore reject the contention of the respondent that McFadden is either controlling or persuasive in the case at bar.

The Oregon Supreme Court dealt with a problem similar to McFadden v. Jordan, supra, in the case of Holmes v. Appling, 237 Or. 546, 392 P.2d 636 (1964). The Oregon Constitution at that time provided for amendment of the constitution by initiative or by legislative proposal. It further provided that revision might be proposed by the legislature and approved by the vote of the people. An attempt was made to draft and submit a revision to the constitution by the initiative method and the Oregon court found the attempt unconstitutional.

Appellant argues that Sec. 2 of Art. 1 of the Idaho Constitution reserves to the people the right to alter their constitution as they see fit. Appellant further argues that under our republican form of government the legislature is representative of the people and therefore Sec. 2 of Art. 1 of the Idaho Constitution impliedly authorizes the legislature, on behalf of the people of the state, to propose a constitutional revision for approval by the people at a general election.

History is replete with examples of constitutions being proposed by methods not specifically authorized by then existing organic law which were later submitted to and approved by the people and are in existence as constitutions. Our own presently existing Idaho Constitution came into being in this fashion. On April 2, 1889, the then Governor of the territory of Idaho, E. A. Stevenson, issued a proclamation for the election of delegates to a constitutional convention. That proclamation was issued without any authority of law and was not implemented. On the 11th of May, 1889, George L. Shoup, who had succeeded Stevenson as Governor of the territory, issued a proclamation for a constitutional convention. No enabling act by the Congress authorized such a convention. A bill had been introduced in Congress to authorize such a convention, but it failed to pass. Governor Shoup thus acted and the constitutional convention was held without any authorization therefor. Shoup stated that as precedent for his action he was following the examples of Arkansas, California, Florida, Iowa, Kentucky, Michigan, Oregon, Vermont and Wisconsin which had adopted constitutions without enabling acts.

Likewise the Constitution of the United States came into being without specific authorization or provision therefor in any organic instrument. It will be remembered that the several United States were then functioning under the adopted Articles of Confederation and that the convention which met in Philadelphia was avowedly for the purpose of amending the Articles of Confederation. That convention, however, without any authority for its actions,¹ proceeded to completely revise not only the organic act but the entire structure of government by proposing a completely new and revised organic instrument for ratification by the people.

Our attention is called to Sec. 2 of Art. 17 of the constitution proposed by Senate Joint Resolution 122, which specifically authorizes the submission of a proposed amendment or revision of that proposed new constitution by either a constitutional convention method or a Constitutional Revision Commission method used in the case at bar. Respondent argues that the inclusion of such an alternative method of revision militates against appellant’s argument herein that the constitutional convention method is not the exclusive method to propose such changes. Otherwise, respondent argues, why is it necessary to place such alternative methods in the new constitution if the methods expressed in the present constitution are not exclusive ? We cannot agree that attempted solution of this vexatious problem is an admission by the Commission on Constitutional Revision and the legislature that their efforts were without authority and foredoomed to failure.

Appellant places his primary reliance on two cases, Wheeler v. Board of Trustees, 200 Ga. 323, 37 S.E.2d 322 (1946), and Gatewood v. Matthews, 403 S.W.2d 716 (Ky.1966). In Wheeler the Georgia court was faced with substantially the same question as' is presented in the case at bar, to-wit: whether or not their constitution could be revised by a method other than convention when the convention method was specified in their constitution. That court said:

“It is contended that this provision [constitutional convention] means that a completely revised or new constitution can be formulated by a convention, and in no other manner. We are now dealing with a written constitution — the original law by which our system of government was set up. It creates the government. By its provisions the three branches of our government — legislative, executive, and judicial — are created. The three branches of government must look to it for all their power and authority. Not' so with the sovereign power, the people.. Under our system of government all power and authority is vested in the-sovereign people, subject only to such limitations as they have expressly imposed upon themselves by this organic law, the constitution. With this as the-basis from which we reason, is it true that this provision of the constitution-of 1877 limits the power of the sovereign people to a convention as the only means-by which they can have a completely revised or new constitution ? The language does not say so. The section purports to do nothing more than to place limitations upon the legislative branch of government as to the manner in which a convention can be called by this branch of the government. If we should say that the sovereign people themselves can-adopt a new constitution by the convention method only, we would by implication be writing into this clause of the constitution a limitation on the sovereign power of the people. We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. This would be an unauthorized exercise of sovereign power by the court.”

It is pointed out that Wheeler differs from the case at bar in that Wheeler dealt with a situation factually similar but later in time than the case at bar. In Wheeler the revised constitution had been submitted to the people of Georgia and had been by them approved. Consequently, the court was in effect dealing with an after the fact situation rather than a before the fact situation as in the case at bar. Nevertheless, the language, logic and reasoning of Wheeler is highly persuasive.

The Kentucky court on the other hand in Gatewood v. Matthews, supra, was presented with essentially the same question as in the case at bar and at precisely the same point in time, to-wit: prior to the general election for approval or disapproval of the revised constitution. The court in Gatewood relied heavily upon Wheeler v» Board of Trustees, supra, and In Re "Opinion to the Governor, 55 R.I. 56, 178 A. 433 (1935). The court in Gatewood stated:

“The primary question to be considered is whether by the terms of Sections 256 and 258 of the Constitution the people have imposed upon themselves exclusive modes of amending or of revising their Constitution.

“Section 258 authorizes the General Assembly to enact a law at two successive sessions providing for taking the sense of the people as to the necessity and 'expediency of calling a convention for the purpose of revising the Constitution. Section 256 provides for the proposal of amendments to the Constitution by the General Assembly.

“It is the appellant’s contention that those sections do represent exclusive modes of reforming the Constitution. * * * It is his argument that whatever power the Constitution has conferred upon the legislature in reference to proposing amendments or other modes of revision must be strictly pursued.

“This is the first time this Court has had before it the question of whether sections 256 and 258 provide exclusive modes for changing the Constitution. In several cases we have considered efforts to amend or revise the Constitution in compliance with one of those sections. In each case this Court has held that such effort must follow precisely the procedure established in that particular section, (citations omitted) In no case have we held that sections 256 and 258 are the exclusive modes of changing the constitution.

“Here the proposed procedure does not follow the dictates of section 256 or 258 of the Constitution. In fact, there is no section specifically setting out the mode of revision prescribed in S.B. 161. If there be authority for such action it must be derived from the sovereign - power of the people as delineated in section 4 of the Bill of Rights:

‘ * * * For the advancement of these ends, they have at all times ’ an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.’

“In the ultimate sense, the legislature does nothing unless and until the people ratify and choose to give the revised constitution life by their own direct action. In this respect the legislature merely performs the role of messenger or conduit. The process is no more than corollary to the right of petition and address reserved to the people in section 1 of the Constitution.

“Each of the four constitutions of this state has provided a method or methods of amendment and revision. Significantly, in none of them have such specified procedures been declared exclusive. The reason is obvious. The right of each generation to choose for itself is inalienable, as it was recognized and said from the very beginning. Being thus inalienable, that right cannot be cut down or subjected to conditions any more than it could be completely denied by one generation to another. So long as the people have due and proper notice and opportunity to acquaint themselves with any revision, and make their choice directly by a free and popular election, their will is supreme, and it is to be done.”

Respondent contends that the language of Gatewood is not applicable to the case at bar since the convention at which the Kentucky Constitution was adopted had before it a proposal that the constitution should not be altered, amended or changed in any way except as provided therein, and such proposal was rejected. Our own constitutional convention proceedings indicate a lack of any discussion on the adoption of Sec. 3 of Art. XX of our Constitution. It was merely stated during the proceedings that most states had such a provision and therefore it was recommended that it be included in our constitution. Nothing was said regarding its exclusiveness or non-exclusiveness. We cannot from that silence jump to the conclusion that the delegates to our constitutional convention intended that the provisions laid down for revision of the constitution were to be exclusive and the only authority for revision. Particularly, respondent’s contention must be rejected since those same delegates to the constitutional convention were lacking in any formal authority to so meet and propose a new constitution.

The legislature of this state has received, pursuant to Art. 3, Sec. 1 of our constitution, the legislative power. As has been stated repeatedly, and as recently as Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083 (1957), the constitutional provisions are limitations on legislative power and not a grant of power as is the case with the Constitution of the United States. Nowhere in Art. 3 of the constitution, wherein the powers of the legislature are limited, is there to be found any specific limitation on the legislature as respects amendment or revision of the constitution.

Turning now to that specific enumeration of the power of the legislature to indulge in constitutional revision, we find that if the legislature “shall deem it necessary to call a convention to revise or amend this constitution,” they shall recommend to the electors such proposition for approval at the next general election. Appellant suggests that the contrast between such wording in our constitution and the language of the California constitution which provides in pertinent part:

“Whenever the legislature shall deem it necessary to revise this constitution they shall recommend * * * a convention.”,

clearly indicates that the Idaho Legislature need call a convention for revision of the constitution only when it deems such action necessary, while in California if the legislature deems it necessary to revise the constitution they may only recommend the calling of a convention. Appellant suggests that the California constitution therein is exclusive in its methodology for the revision of the constitution while Idaho’s revision provision is not an exclusive method.

Sec. 2 of Art. 1, of the Declaration of Rights in our constitution places the political power in the people of this state, providing “they have the right to alter, reform or abolish the same whenever they may deem it necessary * * If we were to accept respondent’s argument that the people have the right to revise the constitution only through the calling of an authorized convention, then we must also recognize that the will of the people may be then frustrated by the legislature since the legislature could refuse to call a convention. It has also been demonstrated by the hereinabove referred to cases from other jurisdictions that the people are unable to override inaction by the legislature in calling for a constitutional convention through the medium of initiative. Hence, if we were to adopt the theory of the respondent, it is clear that the will of the people could be frustrated by inaction of the legislature. Such would not be in accord with the Declaration of Rights set forth in Sec. 2, Art. 1 of the Idaho Constitution. Such theory is contrary to the fundamental concept of our republican and representative form of government wherein the legislative branch of government is elected by the people to represent them and put forward their desires and needs in the form of legislative action.

The legislature has by express resolution deemed the calling of a constitutional convention unnecessary. The work and the result of the work of the Commission has been widely publicized through the press and the medium of public hearings. The legislature approved the proposed new constitution and by the same vote directed that it be submitted directly to the people for approval or rejection. We retain our faith in our people and their intelligence for being informed in matters of their ■government. Theirs will be the final determination as it should be ideally in all matters of their government.

We hold therefore that the judgment of the district court must be reversed and the cause is remanded with directions to enter judgment in favor of the defendant. Costs to appellant.

McQUADE and DONALDSON, JJ., -concur.

1 . Sutherland, J., in Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934) ; Farrand, Records of the Federal Convention, (1911), III, 13.