State v. Jones

199 P. 645, 34 Idaho 83, 1921 Ida. LEXIS 76

• Court: Idaho Supreme Court
• Decided: June 30, 1921
• Status: Published

Opinion

RICE, C. J.

This action was instituted by the state for the purpose of recovering from appellant Jones, as fish and game warden, and his surety, certain sums alleged to be due as the net value of fish and game licenses and shipping permits issued to him and unaccounted for, together with interest thereon and the penalty provided for by statute.

The American Surety Company is a foreign corporation. The appellants moved the court for a change of venue to Gooding county, alleged to be the county in which appellant Jones resides. This appeal is from the order of the court denying the motion.

The action was instituted by the state auditor in the name of the state pursuant to C. S., sec. 141, subd. 13, which is as follows:

“Sec. 141. It is the duty of the auditor: ....

‘ ‘ 13. To direct and superintend the collection of all moneys due the state, and institute suits in its name for all official delinquencies in relation to assessment, collection and payment of the revenue, and against persons who by any means have become possessed of public money or property and fail to pay over or deliver the same, and against all debtors of the state, of which suits the courts of Ada county have jurisdiction, without regard to the residence of the defendants.”

Manifestly it is the intent of this statute to provide that actions by the state coming within its provisions are triable in Ada county without regard to the place of residence of the defendant. It is true the word “jurisdiction” is used in the statute. However, it does not confer jurisdiction, as that word is correctly defined, since the court possessed jurisdiction without the enactment of the statute. (Idaho Const., art. 5, sec. 20.) The meaning of the word “jurisdiction” as used in the statute is to be determined from the context. When the whole provision is read together it is clear that the word “jurisdiction” as used in the statute refers to the venue. Unless it is so construed the provision relating to “jurisdiction” is meaningless and mere surplusage. A statute must be construed so as to give force and effect to its terms if possible.

C. S., sec. 6664, being.a part of the Code of Civil Procedure, contains a general provision relating to the place of trial in civil actions. This section provides that an action such as the one at bar must be tried in the county in which the defendants, or some of them,' reside at the commencement of the action. A particular statute, however, will prevail over a general one in case of necessary conflict. (Oregon Short Line R. R. Co. v. Minidoka County, 28 Ida. 214, 153 Pac. 424.)

C. S., sec. 141, subd. 13, does not confer exclusive jurisdiction upon the district court of Ada county in this, class of cases, but only prevents consideration of the residence of the defendants in determining the place of trial.

Counsel for appellants rely upon the ease of State v. Campbell, 3 Cal. App. 602, 86 Pac. 840, construing a provision in the California Code similar to C. S., sec. 141, subd. 13. This decision was announced long after, the statute was enacted in this state. It cannot be said, therefore, that the statute was adopted in this state with a construction placed upon it by the California courts. The decision in that case rested in part upon section 4481 of the Political Code of California to the effect that, “if the provisions bf any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject matter of. such title,” and also upon provisions common to the Code of Civil Procedure and the Political Code, which recites that each establishes the law of that state respecting the subjects to which it relates. (Cal. Code Civ. Proe., sec. 4; Cal. Pol. Code, see. 4.) We do not find corresponding provisions in the Compiled Statutes of this state.

The order of the district court is affirmed.

Budge, Dunn and Lee, JJ., concur. McCarthy, J., deeming himself disqualified, took no part in the opinion.