Opinion
No. 5423.
December 19, 1929.
APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. W.F. McNaughton, Judge.
Action to recover payment for use of highway. Judgment for plaintiff. Reversed.
Ezra R. Whitla, for Appellants.
It is our contention that the subject of levying tolls and enacting a scheme which gives to highway commissioners and others authority to levy tolls is not expressed in the title of this act and therefore so far as that authority is concerned the act itself is void.
This court has uniformly held this to be the rule of law. Cohn v. Kingsley, 5 Idaho 416, 49 P. 985, 38 L.R.A. 74; Turner v. Coffin, 9 Idaho 338, 74 P. 962, where the court said: "It was evidently the intention of the framers of such constitutional provision to require a title sufficiently definite and comprehensive as to indicate to one reading it the general scope and purpose of the legislation intended by the act, and if the title be sufficient for that purpose it will be held as including all necessary and incidental legislation required to make the general purpose of the act operative."
Everett E. Hunt and C.H. Potts, for Respondent.
The title of an amendatory act is sufficient if in such title attention is called to the original act, the title of which fully embraces the subject matter of the act. (Const., art. 3, sec. 18; In re Edwards, 45 Idaho 676-692, 266 P. 665-671; State v. Pasta, 44 Idaho 671, 258 P. 1075; Vineyard v. City Council, 15 Idaho 436-442, 98 P. 422.)
The title of an act is sufficient to meet the requirements of section 16, article 3 of the Constitution of Idaho, if the act treats of but one general subject and that subject is expressed in the title. ( Vineyard v. City Council, supra; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. 201, 68 P. 295; Achenbach v. Kincaid, 25 Idaho 768, 140 P. 529; State v. Pioneer Nurseries Co., 26 Idaho 332-336, 143 P. 405; Smallwood v. Jeter, 42 Idaho 169, 244 P. 149; State v. Miller, 33 N.M. 200, 263 P. 510; Lynch v. Chase, 55 Kan. 367, 40 P. 666.)
This action, by the Scenic-Better Roads Highway District against appellants, was brought to recover payment for the abnormal use of a highway. The use consisted in hauling sawlogs over the highway, and payment was required to defray the extra cost of maintenance on account of such use. Among other defenses, it was alleged that the statute authorizing the enforcement of payment for the use of the highway was in conflict with art. 3, sec. 16 of the Constitution of the state, in that the subject matter of the act is not embraced in the title. The authority relied on by the highway district is found in the following provision contained in chap. 74, of the laws of 1921, as amended by chap. 102, of the laws of 1923:
"Provided, further, That commissioners of counties, highway districts . . . . are hereby authorized, when in their judgment any traffic over such roads or highways is of such a nature as may be deemed abnormal, or of a nature which will cause undue damage to the roads and highways, to require payment . . . . sufficient to provide for the cost of extra maintenance made necessary by such traffic, if permitted to operate over the roads and highways."
The title of the original act reads:
"An Act to provide restrictions as to weight and size of motor vehicles as used upon the highways of this state and providing for special permit, and declaring an emergency."
The title of the amendatory act reads:
"An act to amend section 2 and section 3 of chapter 74 of the Laws of 1921 providing restrictions as to weight and size of motor vehicles and other vehicles as used upon the roads and highways of this state and providing for special permit; prescribing penalties and declaring an emergency."
The titles of the two acts, in so far as the question for determination is concerned, are the same; they limit the subject matter to restrictions concerning the weight and size of vehicles used on highways. That portion of the subject matter of the amendatory act in question authorizes the commissioners of highway districts, in certain events, to require payment for using the highways. The vesting of authority in the commissioners of highway districts to require payment for using the highways is neither embraced in the titles of the acts nor properly connected therewith; the subject matter has no relation to restrictions as to the weight and size of vehicles used on the highways. Since the provision of the amendatory act, on which the highway district relied for authority to require payment for the use appellants made of the highway, is not expressed in the title of either the original or amendatory act, and is not properly connected therewith, it is void (Const., art. 3, sec. 16; State v. Jones, 9 Idaho 693, 75 P. 819; Gerding v. Board of County Commrs., 13 Idaho 444, 90 P. 357; Vineyard v. City Council, 15 Idaho 436, 98 P. 422), and the judgment is reversed.
Costs to appellants.
Budge, C.J., and Givens, T. Bailey Lee, and Varian, JJ., concur.