Johnston v. Savidge

SULLIVAN", J. — This is an action in the nature of a quo warranto by the appellant to determine his right to the office of justice of the peace within election precincts 4 and 6, lying in the second ward of Boise City. It is alleged that appellant was legally eligible to the office of justice of the peace, and that the board of county commissioners of Ada county established election precincts within the incorporated city of Boise City on June 22, 1898; that appellant was duly appointed justice of the peace to fill a vacancy of an election precinct called Boise Precinct No. 4, lying within said city and within the second ward' thereof on February 12, 1904, and that he duly qualified and was inducted into said office on said date; that the county commissioners, on April 18, 1904, changed the boundaries of election precincts in said city and county, and that such election precincts were not constituted as justices’ precincts; that since said eighteenth day of April, the said election precincts so established have remained unchanged and unaltered except as attempted by the unlawful and illegal ordinance or order made by the board [210] of county commissioners upon the eighteenth day of April, 19(M; that said action of the board was unlawful, invalid, unconstitutional and void, and did not affect election precincts as theretofore established; that no successor having been duly elected and qualified therefor, plaintiff will continue in said office until a legal election and qualification of a successor, and that the respondent was not legally elected to said office, and that he is an intruder and usurper into said office; that said order of said board under which the respondent claims title to said office is illegal, unconstitutional, void and contrary to the laws of the state; that said precincts so established were not established as justices’ precincts, but as election precincts, and that said precincts Nos. 4 and 6, as established by said board, lie within and constitute a portion of the second ward of said city; and that said election precincts lie coterminous with each other, and largely constitute the boundaries of said second ward, and that appellant was duly and legally appointed to fill a vacancy in the office of justice of the peace within said second ward as aforesaid; that said second ward is in law a precinct, and that there was a vacancy therein in the office of the justice of the peace, and that to fill said vacancy appellant was appointed and qualified as aforesaid; that at a general election held in accordance with the election laws, on November 8, 1904, appellant was duly elected as a justice of the peace in said Boise Precinct No. 6 lying within said second ward, and that at said election appellant was the only candidate for said office, and that said election precincts Nos. 4 and 6 were established for the purpose of elections within the second ward of said city, and for no other purpose. To the complaint containing the foregoing allegations, among others, the respondent filed a demurrer that raised the question of the sufficiency of the complaint, which demurrer was sustained and judgment dismissing the action was entered, from which judgment this appeal was taken. The record shows that the board of county commissioners of Ada county, on the eighteenth day of August, 1904, established one justice’s precinct within the limits of Boise City, [211] which includes all of the election precincts of said city: and further made an order that said justice’s precinct should “be presided over by one justice of the peace.” It further appears that at the general election held on November 8, 1904, respondent was elected to the office of justice of the peace of said precinct; that a certificate of election was duly issued to him and that he thereafter qualified as such justice of the peace. There are a number of questions raised on this appeal, but in our view of the case it is not necessary to pass upon all of them. The main question is whether under the law the board of county commissioners had the authority to establish justices’ precincts in Boise City. If the board had the power and exercised it, the judgment must be affirmed. In deciding this matter we must resort to the various provisions of our constitution and statute which refer to that subject. Section 22 of article 5 of the state constitution provides, among other things, as follows: “In each county of this state there shall be elected justices of the peace as prescribed by law.” Subdivisions 2 and 3 of section 1759 of the Revised Statutes as amended, which section contains a grant of power to the board of county commissioners, are as follows: “2. To divide the counties into precincts, school, road and other districts required by law, change the same and create others, as convenience requires.” Subdivision 3 is as follows: “To establish, abolish, and change election precincts, and to appoint judges of elections, canvass all election returns, declare the result, and issue certificates thereof.” Section 1813 of the Revised Statutes reads as follows: “The officers of precincts are two justices of th3 peace, one constable, and such other inferior and subordinate officers as are provided for elsewhere in this code or by the board of commissioners.” Section 11 of an act concerning election and electors, approved February 25, 1891 (Sess. Laws 1891, p. 60), is as follows: “At the general election, A. D. 1892, and every alternate year thereafter, there shall be elected in each justice’s precinct, except wards in incorporated cities, two justices of the peace and one constable, and all other officers, not herein [212] specified, that now are, or hereafter may be created shall, unless otherwise provided, be elected on the day of the general election.” The above-quoted section of the constitution provides that justices of the peace shall be elected in the several counties of the state as prescribed by law, and subdivisions 2 and 3 of section 1759, Revised Statutes, as amended, empower the board of county commissioners to divide the county into justices’ precincts; and section 1813, Revised Statutes, provides that “the officers of precincts are two justices of the peace, one constable, and such other inferior and subordinate officers as are provided elsewhere in this code or by the board of county commissioners.” But it is contended that that clause of section 11 of the act of 1891 which excepts wards in incorporated cities from the provisions, of that section on the subject of the election of two justices of the peace in all precincts except wards in incorporated cities, constitutes and establishes each ward in said city a justice’s precinct. We cannot agree with that contention. That section has no application to the. formation of justices’ precincts. That provision is found in our election laws, but there is nothing further in our statutes that intimates that wards in incorporated cities constitute justices’ precincts. If the contention of the appellant were true, the legislature, after having established a justice’s precinct in each ward of an incorporated city, has failed to provide the number of justices to be elected therein and has failed to leave that matter to the discretion or the judgment of the board of county commissioners, city council, or any other body or person. When the election law of 1891 was enacted, the legislature may have intended to supplement the provisions of said section 11 by further legislation, but it failed to do so, and the exception in said section is left without any force or effect. Hence, until further legislation the board of county commissioners have the power to create election precincts within incorporated cities, and such precincts are entitled to two justices oi the peace as provided by section 1813. [213] It is also contended that the order made by the board of commissioners organizing all of the election precincts of Boise City into one justice’s precinct was illegal and void, for the reason that said order was not made at a regular session of the board. As we view it, the board had the power and authority to organize justices’ precincts, and if their action therein was illegal, any person aggrieved had a right to appeal therefrom. That being true, the question of the illegality of the board’s action cannot be reviewed in this proceeding. Even though the board created said justice’s precinct at a special or adjourned meeting of the board, such action would not be void, but only voidable. This court has uniformly held that where the actions of the board were only voidable, the proper and only method of review was by appeal. (School Dist. No. 25 v. Rice, ante, p. 99, 81 Pac. 155; Pecotte v. Watt, 3 Idaho, 447, 31 Pac. 805; Rogers v. Hays, 3 Idaho, 597, 32 Pac. 259; Morgan v. County Commrs., 4 Idaho, 418, 39 Pac. 118; Corker v. Elmore Co., 10 Idaho, 255, 77 Pac. 634; Dunbar v. Board, 5 Idaho, 407, 49 Pac. 409.) The fact that the board by its order provided that the justice’s precinct composed of the sixteen election precincts in Boise City should be presided over by one justice of the peace does not invalidate said order creating said justice’s precinct, as that part of the order may be separated from the valid part thereof, and the valid part be permited to stand under the well-established rule that where the portion of a statute or ordinance which is invalid is distinctly separable from the remainder, and the remainder in itself contains the essential elements of a complete enactment, the invalid portion may be rejected and the remainder stand as valid and operative. (Sutherland on Statutory Construction, see. 169; 21 Am. & Eng. Ency. of Law, 2d ed., 993.) The judgment is affirmed, with costs in favor of respondent. Stockslager, C. J., and Ailshie, J., concur.