Bear Lake County v. Budge

Citations

• 9 Idaho 703
• 75 P. 614
• 1904 Ida. LEXIS 82

Syllabus

<p>Application fob Writ of Prohibition — Actions to Settle Priority to Use of Wateb — Service of Summons — Constructive Service Thereof by Publication — Constitutional Law — Due Process of Law — Police Power.</p> <p>1. The provisions for the service of summons in actions brought under the provisions of an act entitled “An act to regulate the appropriation and diversion of the public waters and to establish rights to the use of such waters and the priority of such rights/' approved March 11, 1903, held, unconstitutional and void.</p> <p>2. The remedy by due course of law guaranteed by both the federal and state constitution requires, before there is a judicial determination affecting the right to life, liberty or property, that process to obtain jurisdiction must be issued and personally served when practicable; constructive service can only be made effective when actual service is impi'acticable.</p> <p>3. Before constructive service of summons can be legally made some necessity therefor must appear.</p> <p>4. That provision of section 13, article 1 of our state constitution which declares that no person shall be deprived of life, liberty or property without due process of law, prohibits the legislature from dispensing with personal service of summons in actions to quiet title or to settle private adverse rights to property when personal service is practicable and is usual under the general laws of the state.</p> <p>5. Under certain facts, constructive service of summons must, of necessity, be sufficient to give a court jurisdiction, and the general law of the state provides for such service.</p> <p>6. The rule here laid down does not apply to eases of taxation.</p> <p>7. The provisions of said sections 34, 35 and 36 of said act are repugnant to the provisions of section 26, article 5 of our state constitution which requires all laws relating to courts to be general and of uniform application, and that the organized judicial powers, proceedings and practices of cour