Cleary v. Kincaid

STEWART, J. — This is an original application for a writ of mandate to compel William A. Kincaid, the assessor of Ada county, to turn over the books and property used and required by the tax collector of said county and permit plaintiff, as county treasurer of Ada county, to perform the duties of tax collector of said county. The sole question involved is, whether or not the amendment of sec. 6, art. 18 of the constitution of the state, approved and adopted by the voters of the state of Idaho, November 5, 1912, making the county treasurer tax collector instead of the county assessor, is self-operative, or whether such section requires legislative action in order to make the same effective. Plaintiff contends that the amendment is self-operative, and that no action on the part of the legislature was necessary to make it effective; while defendant contends that the section is not operative, and that before it can be effective there must be an act of the legislature providing for the election of and defining the duties of tax collector and assessor. ■Sec. 6, art. 18 of the constitution of the state of Idaho, before the adoption of the amendment now in question, provided that the county assessor is ex-officio tax collector. The amendment transferred the duties of tax collector from the office of county assessor, and imposed such duties upon the office of county treasurer. The offices of county assessor and county treasurer were in no way affected as to the terms of office or the time of election to the offices, or the compensation of such offices. The amendment in no way affects or changes the laws of the state providing for and fixing the respective duties of the two officers, assessor and treasurer, as to the particular offices. The amendment only deals with the duties of tax collector, and imposes the duty upon the treasurer of the collection of taxes. Under the amendment the duties of the assessor remain the same as they were before the amendment, except as to the collection of taxes. The section with reference to biennial elections is in no way altered or modified, but remains the same as before the amendment was adopted. The officers to — 792 — be elected under the amendment are the same officers as were elected prior to the amendment. The amendment requires no legislative act to carry out its provisions. The general laws of the state with reference to the duties of assessors and tax collectors in existence at the time the amendment was adopted apply alike, whether the duties of tax collector be attached to the assessor’s office or the county treasurer’s, and the separation of the duties of collector from the duties of the assessor and attaching such duties to the county treasurer in no way ■affects the duties of the assessor in making assessments and performing the duties bestowed upon the assessor under the law, neither does it affect the tax collector in any way, except that the treasurer is made the collector of the taxes, and the statutes in existence at the time the amendment was adopted governing the various officers and their duties can be applied to the duties under the amendment, and are just the same after the adoption of the amendment as before adoption. This being true, it would seem that the amendment to sec. 6, art. 18 of the constitution is self-operative; in other words, it supplies the rule or means by which the right given may be enforced and protected, and provides for performing the duty conferred by the amendment. In 8th Cyc., p. 753, the author, in discussing self-executing provisions, announces the following general rule: “A self-executing provision, then, is one which supplies the rule or means by which the right given may be enforced or protected or by which a duty enjoined may be performed. ’’ Also: ‘ ‘ The question in such cases is always one of intention, and to determine the intent the general rule is that courts will consider the language used, the objects to be accomplished by the provision, and the surrounding circumstances, and to determine these questions from which the intention is to be gathered the court will resort to extrinsic matters when this is necessary. ’ ’ Many authorities are cited by the author. At p. 743 of 8th Cyc., the author says: “The time when a constitution takes effect is of importance and often becomes material in the course of litigation. The manifest intent of the framers of the instrument, to be gathered from the instru« — 793 — ment itself, controls in the determination of such questions. . . . . Provisions are always made designating the time when constitutional amendments or new constitutions shall take effect.” The legislature passed an act which was approved on March 11, 1913, amending sec. 1991 of the Rev. Codes, wherein the section was re-enacted with the addition of paragraph 7 in the following language: “The county treasurer is hereby made ex-officio tax collector, and all powers and duties heretofore exercised by the ex-officio tax collector, under the laws of this state, as distinguished from the assessor, are hereby transferred and made a part of the powers and duties of the county treasurer.” This addition to sec. 1991 is simply a declaration of the legislature for the performance of a duty which the amendment itself provides for, and adds nothing whatever to the amendment, and provides no rules or means other than the amendment itself provides for, with reference to the transfer of the ex-officio duties of tax collector from assessor to county treasurer. It amounts to and is in fact an approval of the amendment. The amendment, having provided that the county treasurer become tax collector, was sufficient of itself to make the county treasurer ex-officio tax collector, and upon the adoption of the amendment by the voters of the state at the general election, November 5, 1912, the duties of tax collector as defined by law were transferred from the assessor to the county treasurer, and legislation on the subject was not required, as such intent appears from the amendment itself and controls the determination of such question. Counsel for defendant seems to rely upon the case of Blake v. Board of County Commissioners, 5 Ida. 163, 47 Pac. 734, and the case of Hays v. Hays, 5 Ida. 154, 47 Pac. 732. The first case above referred to involved an amendment to sec. 6, art. 18 of the constitution, which provides for the creation of the office of county superintendent as a new office, separate from the office of probate judge, who prior to such amendment was ex-officio county superintendent of public instruction. By such amendment there was created a new office for which an appointment or election was necessary, while in — 794 — the case now under consideration a new office is not created. In this case the duty of tax collector was transferred from the office of assessor to the county treasurer, two offices in existence at the time the amendment was adopted, and the opinion of the court in that case was based wholly upon the creation of a new office, and the court was dealing with the wording of the amendment and not with its effect. The ease of Hays v. Hays, supra, cited by defendant, is clearly distinguishable from the case now under consideration, as in the Hays ease the amendment provided for the abolition of the office of district attorney and the creation of the office of prosecuting attorney. The amendments discussed in those cases are not in point on the question now before this court, for the reason that the amendment under consideration is not the creation of a new office or the abolition of an office, but merely a transfer of certain duties prescribed by law to.be performed by a county officer to another county officer, to wit, the duties of tax collector are transferred from county assessor to county treasurer. The supreme court of Minnesota, in the ease of Willis v. Mabon, 48 Minn. 140, 31 Am. St. 626, 50 N. W. 1111, 16 L. R. A. 281, states the rule which in our judgment should be applied in this case, in the following language: ‘ ‘ The question in every case is whether the language of a constitutional provision is addressed to the courts or the legislature, — does it indicate that it was intended as a present enactment, complete in itself as definitive legislation, or does it contemplate subsequent legislation to carry it into effect? This is to be determined from a consideration both of the language used and of the intrinsic nature of the provision itself. If the nature and extent of the right conferred and of the liability imposed is fixed by the provision itself, so that they can be determined by the examination and construction of its own terms, and there is no language used indicating that the subject is referred to the legislature for action, then the provision should be construed as self-executing, and its language as addressed to the courts.” — 795 — This rule is well recognized by the supreme court of the state of Illinois in the case of Tutle v. National Bank of Republic, 161 Ill. 502, 44 N. E. 984, 34 L. R. A. 750; 6 Am. & Eng. Ency. of Law, 912, note 2. The same volume and page of 6 Am. & Eng. Ency. of Law summarizes the rule as follows: “Constitutional provisions are self-executing when there is a manifest intention that they should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given or the enforcement of a duty imposed.” Applying this construction to the amendment proposed, and giving full force and effect to the language used relating to transferring the duties of tax collector from the office of assessor and attaching the same to the office of -county treasurer, the imperative duty of this court is to declare it self-executing. It no doubt was the intention- of the legislature and likewise of the voters in the adoption of such amendment that the duties of tax collector performed by the assessor should, upon the adoption of such amendment, be transferred to and performed by the county treasurer, and that no action of the legislature was required to complete the transfer. The office of county tax collector and county treasurer, as defined and provided for by the legislature and incorporated in Rev. Codes, title 10, and in full force and effect at the time the amendment was adopted, applied distinctly to the particular office of assessor, tax collector and treasurer, and such statutes had the same application to each of the respective offices, whether such duties are combined in one officer, two officers, or in three different officers elected to the respective positions. The same duties clearly appear also in the various provisions incorporated in chap. 58, Laws of 1913, p. 173, providing a system of revenue for state, county, municipal and school purposes, and particularly describing the duties of the assessor, tax collector and treasurer, and in clear and plain language prescribe the duties in such a manner that such duties may be combined in one officer or two officers or three officers, one of whom may be assessor, tax collector and treasurer, or that the office of tax collector and treasurer may be performed by — 796 — the county treasurer, as provided in the amendment now-under consideration. Giving- due credit to the language used in the amendment and the general provisions of the law as it existed at the time the amendment was adopted, and clearly recognized by the-legislature in enacting the general revenue act of March 13,. 1913, clearly brings the provisions of the amendment within, the rule announced by the authorities above enumerated. We are therefore of the opinion that sec. 6, art. 18 of the-constitution of Idaho is self-operative, and became a part of the state constitution upon its adoption by the voters of the-state at the general election on the 5th of November, 1912. It is ordered and adjudged that a writ of mandate be issued to William A. Kincaid, assessor of Ada county, directing him to turn over, within a reasonable time, the books and property-used and required by the tax collector of Ada county and permit Maud Lowry Cleary, as county treasurer, to perform the duties of tax collector of Ada county. No costs are taxed.