This action was commenced in this court for the purpose of procuring a judgment, recommending to the legislature that plaintiff's claim against the state, for money alleged to have been earned by him in the performance of services as attorney for the Idaho Liquor Board, be paid. The action is authorized by Idaho Constitution, article V, section 10, which provides: *Page 224
"The Supreme Court shall have original jurisdiction to hear claims against the state, but its decision shall be merely recommendatory; no process in the nature of execution shall issue thereon; they shall be reported to the next session of the legislature for its action."
The facts on which plaintiff relies for recovery are as stated in the foregoing opinion by Chief Justice Budge. The nature of the services, performed by plaintiff for the state, is alleged in his amended complaint, as follows:
"to attend meetings of said Board and to render legal counsel, advice and assistance to it, to legally advise and assist the Manager and other officers of and for the Idaho Liquor Board and the State Liquor Dispensary, and to prepare contracts, leases and other instruments for said Board and State Liquor Dispensary."
Included in the amended answer is a general demurrer to the amended complaint.
If, as contended by plaintiff, the liquor board was authorized to employ him as its attorney, and the state was thereby rendered liable to pay him the compensation agreed on between him and the board, it is our duty to recommend to the legislature that his claim be paid.
Defendant contends it was the duty of the attorney general to render the services, without other compensation than his official salary, which plaintiff was employed by the liquor board to perform; that the portion of chapter 222, 1939 Session Laws, section 308, attempting to authorize the liquor board to employ "legal counsel," is violative of article IV, section I of the Constitution, which created the office of attorney general, as part of the executive department of the state government, and is an attempt to invade the constitutional rights of the attorney general and to prevent him from performing his official duties. If this contention is correct, and the furnishing of legal counsel and assistance to the liquor board is the official duty of the attorney general, imposed on him by the constitution, the legislative act attempting to authorize the employment of an attorney by the board is void, and it is our duty to sustain the demurrer to the amended complaint and dismiss the action. *Page 225
This court is thoroughly committed to the doctrine, quoted from Cooley's Constitutional Limitations in Meller v. Boardetc. of Logan County, 4 Idaho 44, 51, 35 P. 712, 715, that:
" 'The legislature cannot take from a constitutional officer a portion of the characteristic duties belonging to the office, and devolve them upon an office of its own creation.' "
See, also, Givens v. Carlson, 29 Idaho 133, 138,157 P. 1120, 1122; Wright v. Callahan, 61 Idaho 167, 179,99 P.2d 961, 966. In State v. Malcom, 39 Idaho 185, 189, 226 P. 1083,1084, the rule is stated thus:
"When the constitution devolves a duty upon one officer the legislature cannot substitute another. (Houghton v. Austin,47 Cal. 646; Wilmington etc. R. Co. v. Board of Commrs.,72 N.C. 10.)"
The Supreme Court of California, in Love v. Baehr, 47 Cal. 364, announced a principle of constitutional law, which is controlling here. The first and second paragraphs of the syllabus are:
"Although the Constitution is wholly silent with respect to the duties to be performed by the Attorney-General, Secretary of State, Controller, and Treasurer, and contains no express limitation on the power of the Legislature as to the nature of the duties it may impose on these officers, yet a limitation on this power is necessarily implied, from the nature of these offices.
"Such limitation will be found in the general class of duties which the incumbents of similar offices had performed in other States, before our Constitution was adopted."
In the body of the opinion, it is said:
"From the earliest period of our history as a nation, almost every State in the Union had a Secretary of State, Controller, Treasurer, and Attorney-General; and the general nature of the duties pertaining to each were perfectly well known to the framers of our Constitution. It is clear beyond controversy, that in establishing similar offices here, the framers of that instrument had reference to the same general class of duties, which it was well known pertained to such offices elsewhere." *Page 226
That rule of constitutional interpretation was recognized, and applied, in Wright v. Callahan, 61 Idaho 167,99 P.2d 961, wherein we held the legislature was without power to transfer the characteristic duties of state auditor to an office of its own creation.
At the time our Constitution was written and adopted, the office of Attorney General of the Territory of Idaho existed and some of the duties thereof were prescribed by statute, among them being:
"To give his opinion in writing, without fee, to the Legislature or either House thereof, and to the Governor, the Territorial Secretary, Controller, Treasurer, the Trustees or commissioners of Territorial Institutions, when required, upon any question of law relating to their respective offices." (Rev. Stats. (1887), sec. 250.)
Since the adoption of the Constitution, the Attorney General has been the recognized head of the legal department of the state and it has been his duty, and that of his assistants, to perform such services for the state and its officials as those alleged in the amended complaint to have been performed by plaintiff for the liquor board.
The legislature of North Dakota attempted to create the office of enforcement commissioner and to make it the duty of the incumbent thereof to enforce the laws prohibiting the manufacture and sale of intoxicating liquors. In Ex parteCorliss, 16 N.D. 470, 114 N.W. 962, holding the law unconstitutional and void, the Supreme Court of that state said:
"We think it clear, from the language employed, that it was the intention of the legislative assembly, in the enactment of this law, to vest in the enforcement commissioner the power, whenever he deems the exercise thereof necessary, to displace the regularly elected state's attorney and sheriff in any county, so far as the enforcement of the so-called 'Prohibition Law' is concerned in such county, and appoint in their stead a deputy enforcement commissioner and a special enforcement sheriff to discharge the duties of such regularly elected officers during the pleasure of the enforcement commissioner. *Page 227
". . . . If the legislative assembly has the power to do this, why has it not the power to provide for the appointment of a special enforcement governor, or a special enforcement attorney general, or a special enforcement court? The governor, attorney general and the judges are no more constitutional officers than are state's attorneys and sheriffs. It seems too obvious for discussion that the framers of the constitution, in providing for the election of these officers by the people, thereby reserved unto themselves the right to have the inherent functions theretofore pertaining to said offices discharged only by persons elected as therein provided. The naming of these officers amounted to an implied restriction upon legislative authority to create other and appointive officers for the discharge of such functions. If this is not true, then of what avail are the provisions of the constitution above referred to? If these constitutional offices can be stripped of a portion of the inherent functions thereof, they can be stripped of all such functions, and the same can be vested in newly created appointive officers, and the will of the framers of the constitution thereby thwarted. . . . .
"Section 173 of our constitution is relied upon as upholding this statute. This section, after enumerating the county officers and prescribing that they shall be elected by the electors of the county, further provides that their duties shall be prescribed by law; and it is argued that under the power to prescribe such duties the legislative assembly may take them away, or a portion thereof, and confer them upon other officers not elected by the people, just as is attempted to be done by the act in question. Such argument, carried to its logical and inevitable result, would lead to the monstrous doctrine that the constitution means nothing, and, notwithstanding its plain provisions, the legislative assembly may provide that the duties pertaining to all these offices shall be discharged by officers appointed in some manner prescribed by them. The act in question does not purport to prescribe the duties of these constitutional officers, but it attempts to vest in other persons not elected the power to perform such duties, and to this extent supplant these constitutional officers. Such legislation, in our opinion, cannot be sustained. It strikes a blow at the very foundation principles of our form *Page 228 of government. During the early history of this state, Chief Justice Corliss, in State ex rel. Faussett v. Harris, 1 N.D. 194,45 N.W. 1102, recognized the distinction in this respect between constitutional offices and those created by the legislative assembly. Speaking of the latter kind of office, he says: 'The office is not imbedded in the constitution, as is the case with respect to the offices named in section 173 of the constitution. These are constitutional offices. The other offices, including that of county assessor, are offices which, under the express provisions of section 173, the legislature may abolish by creating other offices to take their place.' In that case the court had under consideration the power of the legislature to abolish the old office of county assessor and to confer the duties upon district assessors, and the court held that, as the office was of legislative creation and therefore not 'imbedded in the constitution,' the act in question was valid.
"If the offices mentioned in section 173, which includes those of state's attorney and sheriff, 'are imbedded in the constitution,' it inevitably follows that they cannot be stripped by the legislature of the important duties inherently connected therewith, for if this can be done, then these offices were 'imbedded in the constitution' for no purpose. We do not deny the power of the legislature to prescribe duties for these officers, which power carries with it by implication the right to change such duties from time to time as the public welfare may demand; but we deny its power to strip such offices, even temporarily, of a portion of their inherent functions and transfer them to officers appointed by central authority. This, as we view it, is a plain violation of the constitution, and is subversive of the obvious intent of its framers to reserve to the people of each county the right, through their elected officials, to enforce the criminal laws of the state, as well as to perform other functions of government by them so long performed and so well understood."
The North Dakota court quoted the Supreme Court of Wisconsin, in State v. Hastings, 10 Wis. 525, 532, as follows:
" 'This rule of construction extends to every part of the instrument, [constitution] and if a violation of it is allowed in the case of the auditor, it is difficult to see why it should *Page 229 not be in the case of any other officer or department. Thus, the legislature might with equal propriety create new courts of justice, usurping and exercising the same power and jurisdiction as those established by the people, and a new executive, to correct the mistakes and control the action of the one chosen by them. It seems to us clear that the legislature could do neither, and that so much of the act under consideration as attempts to transfer to the so-called "comptroller" the functions of auditor, and to clothe him with authority to control or reverse the acts of that officer, is unconstitutional and void.' "
We now come to a consideration of the amendment to the Constitution, adopted at the general election held November 6, 1934, which is discussed in the foregoing opinions of Chief Justice Budge and Justice Ailshie. In doing so we should bear in mind the people of Idalio were attempting to amend their Constitution — not to wreck it.
The legislative session of 1915, by Senate Joint Resolution No. 1, proposed an amendment to the Constitution, which was adopted at the general election held November 7, 1916, providing:
"From and after the first day of May in the year 1917, the manufacture, sale, keeping for sale, and transportation for sale of intoxicating liquors for beverage purposes are forever prohibited. The legislature shall enforce this section by all needful legislation."
Prior to the adoption of that amendment the legislature had, in conformity to the Constitution, passed laws, from time to time, for the regulation, control and prohibition, of the manufacture, sale, keeping for sale, and transportation for sale of intoxicating liquors for beverage purposes.
Prohibition, as provided for by that constitutional amendment, did not prove to be satisfactory to a majority of Idaho voters, and their purpose in adopting the constitutional amendment, approved November 6, 1934, now before us, was to again invest the legislature with power and authority to permit, control and regulate or prohibit the manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquors for beverage purposes. In order to accomplish *Page 230 this the amendment, proposed in 1915 and ratified in 1916, was amended as follows: [Omitted portions of the amended section are indicated by asterisks, and added portions are indicated by italics.]
From and after the * * * * thirty-first day of * * * *December in the year * * * * 1934, the Legislature of the Stateof Idaho shall have full power and authority to permit, controland regulate or prohibit the manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquors for beverage purposes. * * * *"
The amendment attracted a great deal of attention and was thoroughly discussed before it was voted on. The vote was 85,469 for the amendment and 53,788 against it. The question propounded to the voters was:
"Shall Section 26 of Article III of the Constitution of the State of Idaho be amended so as to provide that the Legislature of the State of Idaho, from and after the thirty-first day of December in the year 1934, shall have full power and authority to permit, control and regulate, or prohibit, the manufacture, sale, keeping for sale, and transportation for sale of intoxicating liquors for beverage purposes."
It will be observed that neither in the question propounded to the voters, nor in the amendment, is mention made, or intention suggested, of authorizing the legislature to alter, or in any manner change or otherwise interfere with, the characteristic, constitutional duties of the attorney general. It is safe to say that the interpretation placed on the amendment by the majority of this court was never thought of until long after its adoption.
In Boise-Payette Co. v. School Dist. No. 1, 46 Idaho 403, 411,268 P. 26, 28, we said:
"The test of the constitutionality of an act is not what is done thereunder in any particular instance, but what may be done under it. (6 Rawle C. L., p. 82, sec. 80; 12 C. J., p. 786, sec. 219.)"
See, also, State Water Conservation Board v. Enking, 56 Idaho 722, 732, 58 P.2d 779, 783; Idaho Gold Dredg. Co. v.Balderston, 58 Idaho 692, 724, 78 P.2d 105, 120.
With that rule in mind, let us see what the legislature may do to the constitutional structure of Idaho, by legislation *Page 231 involving the liquor traffic, if we persist in holding it has full authority to control and regulate intoxicating liquors, under the Constitution as amended; that it even has authority to confer on others powers which, prior to the amendment, belonged exclusively to constitutional officers. If the court is right in holding the characteristic powers and duties of the Attorney General to counsel, advise and assist the officers of the state in legal matters, having to do with intoxicating liquors, may be taken from him by the legislature and be conferred on someone else, it may, in all matters pertaining to the liquor traffic, deprive other constitutional officers of their powers. It may provide a treasurer to have charge of public funds arising from the liquor traffic; a board of examiners to allow or disallow claims against the state arising out of such traffic; it may designate a governor of the liquor traffic and create a judiciary to interpret the laws pertaining thereto.
This constitutional amendment not only provides that the legislature shall have power to regulate and control the liquor traffic, but that it shall have power to prohibit it. Pursuant to the amendment, as interpreted in this case, the legislature has full power and authority to permit, control and regulate or prohibit the manufacture, sale, keeping for sale, and transportation for sale, of intoxicating liquors for beverage purposes, and that this power and authority are unlimited, regardless of what other parts of the Constitution may say to the contrary. If the court is right that the powers of the Attorney General, as applied to the liquor traffic, may be taken from him, it follows that the legislature may enact a law prohibiting traffic in intoxicating liquors and set up a new governmental structure to enforce it, and, in so doing, will not violate the rights of any constitutional board or officer.
In 16 C.J.S., p. 50, the following rule of constitutional interpretation appears:
"A constitution, or provision thereof, should receive a reasonable and practical interpretation in accord with common sense."
In support of that text, among many other authorities, are:Reed v. Gallet, 50 Idaho 638, 299 P. 337; Bannock County v. *Page 232 Citizens' B. T. Co., 53 Idaho 159, 22 P.2d 674; LloydCorporation v. Bannock County, 53 Idaho 478, 25 P.2d 217;Oregon Short Line R. Co. v. Pfost, 53 Idaho 559,27 P.2d 877.
The amendment, approved November 6, 1934, should be given an interpretation which will make it harmonize with — not be destructive of, other portions of the Constitution.
The demurrer to the amended complaint should be sustained and the action should be dismissed.