Points Decided.

(April 29, 1915.)

LOUISE E. BARTON, Plaintiff, v. MOSES ALEXANDER, Governor, JOSEPH H. PETERSON, Attorney General, and GEORGE R. BARKER, Secretary of State, as the Board of Trustees of the Soldiers' Home, and ROBERT BARTON, Commandant of the Soldiers' Home, Defendants.

WRIT

[148 Pac. 471.]

OF PROHIBITION-ANTI-NEPOTISM LAW-TITLE TO-CONSTITUTIONAL LAW-STATUTORY CONSTRUCTION-ASSOCIATES IN OFFICEWHO ARE POLICE POWER-REASONABLE REGULATION-DEGREES OF KINDRED - How COMPUTED CIVIL LAW RETROSPECTIVE ACTALLOWANCE OF CLAIMS-MUNICIPAL SUBDIVISIONS.

1. Held, that the title to the anti-nepotism bill or act is sufficiently broad to include and cover all of the provisions of said act and is not repugnant to the provisions of sec. 16, art. 3, of the state constitution.

2. "Associates in office" are those who are united in action; who have a common purpose; who share the responsibility or authority and among whom is reasonable equality; those who are authorized by law to perform the duties jointly or as a body.

3. Held, that the commandant of the Soldiers' Home is not an "associate in office" of the board of trustees of the Soldiers' Home. 4. The phrase, "associates in office," as used in said act refers to officers who are required under the law to act together, each having substantially equal authority in matters coming before them as boards or councils under the law.

5. Said act prohibits the officers therein named, or boards or councils composed of such officers, from appointing anyone to office related to them or to any member of such board or council within the third degree by affinity or consanguinity.

6. Said act prohibits the officers therein mentioned from making appointments on agreement or promise with other officers.

7. If a person is illegally appointed under the provisions of said act, the officer of the state, district, county, city or other municipal subdivision of the state who pays out of any public funds under his control or draws or authorizes the drawing of any warrant or authority for the payment out of any public funds of the salary, wages, pay, or compensation of any such ineligible person, knowing him to be ineligible, is guilty of a misdemeanor and may be punished as provided in the first section of said act.

Argument for Plaintiff.

8. If a person is legally appointed and eligible to hold the office to which he is appointed, the proper board or officer is not prohibited by said act from passing upon and allowing the claim of such appointee for salary, or wages, although such appointee may be related to such officer or a member of the board which is required under the law to pass upon such claim.

9. Said act is a police regulation and its provisions are reasonable and enforceable and not unconstitutional.

10. Under the provisions of sec. 5705, Rev. Codes, the degrees of kindred are computed according to the rules of the civil law, which rules are applicable to the act in question.

11. Held, that it was not intended that the provisions of said act should operate retrospectively.

12. Where appointments of persons related to officers within the prohibited degree have been made prior to the going into effect of said act, such appointees cannot legally be paid out of the public funds any salary or wages for services rendered subsequent to the going into effect of said act, to wit, the 8th day of May, 1915.

13. Irrigation, drainage, improvement and school districts do not come within the provisions of said act, since they are not municipal subdivisions of the state and are not specially included in said act.

14. Held, that said board of trustees of the Soldiers' Home will not violate any of the provisions of said act by retaining the plaintiff as matron of said Home.

Original application for a writ of prohibition to the board of trustees of the Soldiers' Home. Alternative writ granted. Anti-nepotism law construed.

C. W. Gibson and J. P. Pope, for Plaintiff.

The act violates sec. 3, art. 6, of the constitution, in providing an additional qualification to hold a civil office, in that no person shall be appointed for the sole disqualification that he is related within the third degree by affinity or consanguinity to the appointing officer or his voting associates. (Bradley v. Clark, 133 Cal. 196, 65 Pac. 395; Thomas v. Owens, 4 Md. 189; Stryker v. Churchill, 39 Misc. Rep. 578, 80 N. Y. Supp. 588; Black v. Trower, 79 Va. 123.)

The appointments of county officers under sec. 6 of art. 18 of the constitution is a matter of discretion placed in the

Argument for Plaintiff.

officers and board of county commissioners. (Campbell v. Board of Commissioners, 5 Ida. 53, 46 Pac. 1022.)

The act should be held unconstitutional if this discretion is taken away from a single officer of this state. (In re Kane v. Gaynor, 144 App. Div. 196, 129 N. Y. Supp. 280; Ackley v. Perrin, 10 Ida. 531, 79 Pac. 192.)

Consideration of the power of the legislative department to exercise or limit the exercise of the power of the executive department has often been before courts. (Elliott v. McCrea, 23 Ida. 524, 130 Pac. 785; Ingard v. Barker (Ida.), 147 Pac. 293; People v. Freeman, 80 Cal. 233, 13 Am. St. 122, 22 Pac. 173.)

The title to the act under consideration does not mention or refer to the provision in the body of the act which makes it unlawful for any executive, legislative, judicial, ministerial or other officer of the state, county, municipality, etc., to appoint or vote for the appointment of any person related to any of his associates in office within the third degree. (Sutherland, Stat. Const., sec. 111; Cooley's Const. Lim., 6th ed., p. 178; Pioneer Irr. Dist. v. Bradley, 8 Ida. 310, 101 Am. St. 201, 68 Pac. 295; Turner v. Coffin, 9 Ida. 338, 74 Pac. 962; Katz v. Herrick, 12 Ida. 1, 86 Pac. 873; State v. Mulkey, 6 Ida. 617, 59 Pac. 17; Gerding v. Board of Co. Commrs., 13 Ida. 444, 90 Pac. 357.)

Statutes not expressly made retrospective in their terms are otherwise construed, if possible. (People v. Hays, 4 Cal. 127; Bond v. Munro, 28 Ga. 597; Porter v. Glenn, 87 Ill. App. 106; In re Kennett, 24 N. H. 139; Sayre v. Wisner, 8 Wend. (N. Y.) 661; Dash v. Van Kleeck, 7 Johns. (N. Y.) 477, 5 Am. Dec. 291; Lindsay v. United States Savings etc. Co., 120 Ala. 156, 24 So. 171, 42 L. R. A. 783.)

If the body of the act were retrospective in terms, which it is not, the title is insufficient because it does not indicate that fact. (Lindsay v. United States Sav. etc. Co., supra; Snell v. Chicago, 133 Ill. 413, 24 N. E. 532, 8 L. R. A. 858; Lockport v. Gaylord, 61 Ill. 276; Brieswick v. Mayor of Brunswick, 51 Ga. 639, 21 Am. Rep. 240.)

Opinion of the Court-Sullivan, C. J.

"Associates are persons united, or acting together by mutual consent or compact in the promotion of some common object." (Anderson's Law Dictionary; Lechmere Bank v. Boynton, 11 Cush. (Mass.) 369.)

J. H. Peterson, Atty. Genl., T. C. Coffin, E. G. Davis, and Herbert Wing, Assts., for Defendants.

When the bill was amended in the Senate in committee of the whole by the insertion of the phrase "associates in office, no change in this regard was made in the title. We concede that the title is not sufficiently broad to cover such a phrase, and refer the court to the case of State v. Dolan, 13 Ida. 693, 700, 92 Pac. 995, 14 L. R. A., N. S., 1259, wherein this question received consideration.

This nepotism act, if it be sustained at all, must be sustained as an exercise of the police power of the state. It is a well-established principle that police regulations must be reasonable in order to be lawful. (Freund on Police Power, sec. 33; State v. Dolan, supra.)

The specific mention of road districts as being included within the terms of the law, and the fact that road districts are analogous to improvement districts, irrigation districts, drainage districts and school districts, might seem to evidence the intention of the legislature to exclude from the category all but road districts. This view is strengthened, so far as it respects school districts, by reason of the provisions of subdivision L of sec. 58 of the school code (1913 Sess. Laws, p. 44), and the ruling of this court in the case of Fenton v. Board of County Commrs., 20 Ida. 392, 398, 119 Pac. 41, wherein the court held that under the provisions of sec. 6, art. 7, of the constitution, a school district was not a municipal corporation.

SULLIVAN, C. J.-This is an original application in this court for a writ of prohibition to the board of trustees of the Soldiers' Home and to Colonel Robert Barton, commandant of said home, requiring them to show cause why they and each of them should not permit the petitioner to continue

Idaho, Vol. 27-19

Opinion of the Court-Sullivan, C. J.

in the discharge of her duties as matron of said Soldiers' Home on and after May 8, 1915.

It appears from the petition that the petitioner, or plaintiff, is now and ever since the 15th day of September, 1913, has been, the duly appointed, qualified and acting matron of the Soldiers' Home; that the board of trustees of said. home is composed of the Governor, the Secretary of State and the Attorney General, and that the defendant Robert Barton is, and ever since the first day of June, 1913, has been, the duly appointed, qualified and acting commandant of said Soldiers' Home, and is the father of the plaintiff; that said board of trustees has control and supervision of said Soldiers' Home, including the appointment and removal from office of the plaintiff; that on February 18, 1915, the Governor approved what is commonly known as the "AntiNepotism Bill," which bill makes certain appointments of relatives to positions unlawful and subjects the officer making such appointments to fine and removal from office; that on the 6th day of April, 1915, the plaintiff received a communication from said board of trustees notifying her that on and after the 8th day of May, 1915, the date when said anti-nepotism act becomes effective, her services would no longer be needed, for the following reasons and none other: 1st, that Col. Barton, commandant of the said Soldiers' Home, who, in the opinion of the board of trustees, is an associate in office of the members of said board, within the meaning of said act, is her father and therefore her appointment and continuance in office is unlawful under said act; 2d, that the furnishing of employment by the said board of trustees and the said Colonel Barton is a violation of the provisions of said act; that said act is a police measure and if the same attempts to provide against the appointment to office or employment of relatives by affinity or consanguinity within the third degree, to any clerkship, office, position, employment or duty, when the salary, wages, pay or compensation of such appointee is to be paid out of the public funds or fees of office by the associate of any officer so related, it is unconstitutional and void as being unreasonable;