Carlson v. Mullen

BUDGE, C. J. A petition for a new school district, to 'be created in part from district No. 47, was presented by A. M. Powell and others to the board of county commissioners of Ada county. The petition was signed by the parents or guardians of ten children of school age who were residents of the proposed new district. The commissioners granted the prayer of the petition and entered their order whereby they undertook to create a new school district, to be known as district No. 63. From this order of the commissioners the trus [797] tees of school district No. 47 appealed to the district court in and for Ada county, where said order was reversed. This appeal is prosecuted from the judgment thus made and entered by the district court. "We are first met with a motion made in this court to dismiss the appeal on the ground that no undertaking on appeal was filed or served by the appellants, as required by secs. 4808 and 4809, Rev. Codes. Since, however, this case will be disposed of upon another ground, we have concluded neither to discuss nor determine the question upon the motion to dismiss the appeal for failure to file and serve the undertaking on appeal. So far as the merit of this case is concerned, the sole and only question in issue is the sufficiency of the petition presented to the commissioners, as regards the number of children of school age whose parents or guardians were signers of said petition. It is the contention of appellant that sec. 47b, chapter 159, Sess. Laws 1911, as amended 'by Sess. Laws 1913, at page 436 (which section will hereafter be referred to as “the former section”), is now'the law and in force, and controls in so far as the number of children of school age, who are residents of the proposed new district and whose parents or guardians are signers of the petition, is concerned. Said section provides: “A petition for a new district to be created out of unorganized territory, or to be created by the division of one district only, shall be sufficient if signed by the parents or guardians of ten (10) or more children of school age who are residents of the proposed new district, and no further signers shall be required.....” While, upon the other hand, it is the contention of the respondent that sec. 47b, chapter 159, Sess. Laws 1911, as amended by the Sess. Laws 1913, at page 462 (which section will hereafter be referred to as “the latter section”), is the present law governing the creation of school districts, wherein it is provided: “A petition for a new district, whether to be created from unorganized territory or in part from territory embraced within the boundaries of one (1) or more school districts or independent school districts shall be sufficient if [798] signed by the parents or guardians of fifteen (15) or more children of school age who are residents of the proposed new district, and no further signers shall be required.....” Counsel for appellant insists that the latter section is unconstitutional and void, because it confuses “independent school districts” and “school districts,” and because it attempts to amend or change the formation of independent school districts, the procedure for which is laid down in art. 13, chapter 159, Sess. Laws 1911, without having a sufficient title to the act to authorize such change and without any reference being made to such chapter. From the foregoing statutory provisions, considered as a whole, it is quite evident that it was the intention of the legislature to keep the procedure as to the organization and creation of independent school districts and school districts separate, but we do not think that it necessarily follows that the latter section must be held to be wholly void and the former sustained in order to accomplish this purpose. Neither do we agree with counsel’s contention, that by striking out the words “or independent school districts” from the latter section the will of the legislature will be nullified. An examination of the latter amendment discloses the fact that it has to do with ordinary school districts, and, with the exception of the clause “or independent school districts,” deals with and has reference to the organization and change of boundaries of school districts. By striking out of the latter section the four words, “or independent school districts,” we have a complete act, governing the formation of school districts, and we think these four words may be properly considered as surplusage. If the former act of which the latter section is amendatory had reference to independent school districts, there might be some merit in counsel’s contention. We think the general rule to be, that where a word, clause or sentence appears in a statute, which clearly defeats the intention of the legislature and which may be stricken out or entirely omitted without in any manner defeating the object or purpose of the statute, and where the intention of the legislature can be definitely determined from the statute, with the word, [799] clause or sentence stricken out, this may be done. And there can be no reason for the rule contended for by counsel, namely, that if some provision or a particular word or sentence of a paragraph in a statute is invalid, it necessarily follows that the entire statute is invalid. On the contrary, we think that under such circumstances the invalid part of the statute may be separated from the valid part, where this can be done without defeating the object or the purpose of the statute. An examination' of the latter section discloses the fact that the words “or independent school districts” may be lifted out of the section and it stands complete, and that these words are in no way dependent upon or inseparably connected with the balance of the section. The most recent expression of this court upon this point is found in Epperson v. Howell, 28 Ida. 338. At page 345 (154 Pac. 621), the court quotes and approves the following quotation from Lewis’ Sutherland on Statutory Construction, par. 296: “Where a part only of a statute is unconstitutional, and therefore void, the remainder may still have effect under certain conditions.....The point or test is .... whether they are essentially and inseparably connected in substance. If so connected, the whole statute is void. “If one provision of an enactment is invalid and the others valid, the latter are not affected by the void provisions unless they are plainly dependent upon each other, and so inseparably connected that they cannot be divided without defeating the object of the statute. And the converse is true.” This principle of statutory construction is also quoted and approved in Gillesby v. Board of County Commrs., 17 Ida. 586, 107 Pac. 71, where the court says: “This court will not hold an entire act void or unconstitutional by reason of the fact that a section may be unconstitutional and void, where the latter is distinct and separable from the remaining provisions of the act and could be omitted and leave the act complete within itself and capable of being carried into effect, so as to accomplish the object of the law as intended by the legislature.” [800] Also, see In re Abel, 10 Ida. 288, 292, 77 Pac. 621, where the court says: “But that objectionable feature of said section does not render the whole act unconstitutional and void, as the remaining part of the act is capable of being executed in accordance with the apparent legislative intent wholly independent of that portion.....” In State v. Westerfield, 23 Nev. 468, 49 Pac. 119, it is held:. “That though the last clause of section 34 is in conflict with the constitution, and void; the remainder of the section is not affected by such fact, and makes a valid appropriation. ’ ’ For other cases and authorities see: 36 Cyc. 976, and cases cited; note, 1 L. R. A. 363, “Statute in Part Valid and in Part Invalid,” and cases therein cited; State v. Smiley, 65 Kan. 240, 69 Pac. 199, 202, 67 L. R. A. 903, and cases cited; Cooley on Constitutional Limitations, pp. 246, 247, and cases cited; People v. Knopf, 183 Ill. 410, 56 N. E. 155, 159, and State v. Stuht, 52 Neb. 209, 217, 71 N. W. 941, 943. After a careful analysis of these authorities it cannot be doubted but that a phrase or clause may be stricken out of a statute, provided that clause is foreign to the intent and purpose of the legislature, and is not so interwoven in meaning and construction with the remainder of the statute as to leave it without meaning and unintelligible after the disputed clause has been eliminated. We have concluded, therefore, that the words “or independent school districts” as they appear in see. 47b, chapter 119, Sess. Laws 1913, are not necessary to carry out the intention of the legislature, nor to the validity of the amendment. These words are totally independent of the remainder of the statute and are not germane to it nor to its purpose, and, therefore, only the clause “or independent school districts” is held to be surplusage and void; the remaining part of the statute is valid. The decision of the district court is affirmed. Costs awarded to respondent. Morgan, J., concurs.