Baker v. Gooding County

• Decision Date: 03 February 1914
• Citation: 25 Idaho 506,138 P. 342
• Parties: J. O. BAKER, Plaintiff, v. GOODING COUNTY et al., Defendants
• Court: Idaho Supreme Court

138 P. 342

25 Idaho 506

J. O. BAKER, Plaintiff, v. GOODING COUNTY et al., Defendants

Supreme Court of Idaho

February 3, 1914

COMMISSIONERS-POWERS OF-ROAD BOND ELECTION-HIGHWAY DISTRICTS-HIGHWAY COMMISSIONERS-POWERS AND JURISDICTION OF-HIGHWAY DISTRICT LAW-CONSTRUCTION OF-PROHIBITION-REMEDY.

1. Under the provisions of the highway district law, the board of county commissioners cannot legally call an election for the voting of highway bonds upon their county with the understanding and arrangement to apportion the proceeds of the sale of such bonds among the several highway districts of the county.

2. Under the provisions of sec. 15 of said highway district law the highway commissioners in such highway district constitute the highway board and have, except as provided in sec. 64 of said act, exclusive general supervision and jurisdiction over all highways within their district, with full power to construct, maintain, repair and improve all highways therein.

3. Sec 17 of said act provides, in respect to highways included within such districts, that the power and jurisdiction of the highway board shall be exclusive except as provided in sec 64 of said act, and precludes the county commissioners from exercising general supervision and jurisdiction over such highways.

4. Sec 65 of said act provides, among other things, that after the organization of such district, the highway board shall have exclusive power to levy and apply all road, bridge and highway taxes within the district except in respect to general county taxes as provided in sec. 37 of said act, and in respect to local municipal taxation as provided in sec. 64 of said act, and also in respect to any taxing power within the state.

5. The provisions of sec. 882b (Sess. Laws 1911, p. 167) except from the jurisdiction of the board of county commissioners those highways situated in highway districts.

6. Under the provisions of the highway district law, the board of county commissioners could not expend the proceeds obtained from the sale of the bonds involved in this case on highways included in highway districts.

7. Under the provisions of sec. 882b, the board of county commissioners are given power to construct or repair, with the consent of the corporate authorities of any municipality within the county, any highway within such municipality upon such division of the cost thereof as may be agreed upon, or join with the state or any body politic or political subdivision thereof in the construction or repair of any highway, and to contract for an equitable division of the costs thereof.

8. That section gives the board of county commissioners power to construct or repair certain highways with the "consent" of the corporate authorities that control such highways, and also to contract for an equitable division of the cost thereof.

9. The highway district law does not contemplate the raising of money for the purpose of constructing or repairing highways in highway districts by voting bonds on the entire county and then leaving it with the board of county commissioners to apportion the proceeds of such bonds to the several highway districts.

10. Held, that the writ of prohibition would lie in this case.

11. The case of Stein v. Morrison, 9 Idaho 426, 75 P. 246, cited and distinguished.

12. Held, that the writ of prohibition lies to restrain county commissioners from proceeding in cases without or in excess of their jurisdiction.

Original proceeding in this court for a writ of prohibition prohibiting the board of county commissioners of Gooding county from proceeding to sell road bonds and to distribute the proceeds thereof proportionately among the several highway districts of said county. Peremptory writ of prohibition granted.

Peremptory writ of prohibition issued. Costs in favor of the plaintiff.

Hawley, Puckett & Hawley and O. W. Worthwine, for Plaintiff.

The county cannot dispose of its funds except in certain authorized ways. If Gooding county attempted to turn over any part of the proceeds of this bond issue to a highway district, any taxpayer in that county could restrain such act. (Miller v. Smith, 7 Idaho 204, 61 P. 824; Dunbar v. Canyon County Board of Commrs., 5 Idaho 407, 49 P. 409.)

In this case the issuance of the bonds is a quasi-judicial act. No one can compel the county to sell or negotiate the bonds. (Secs. 1960, 1962, Rev. Codes.)

Courts do not make nice distinctions as to the character of the act under consideration. (Robinson v. Sacramento, 16 Cal. 208; People v. Supervisors of El Dorado County, 8 Cal. 58; People v. Supervisors of Marin County, 10 Cal. 344; Connecticut River Ry. Co. v. Franklin County Commrs., 127 Mass. 50, 34 Am. Rep. 338.)

P. T. Sutphen and W. G. Bissell, for Defendants.

The act of issuing and selling county bonds by the board of commissioners of Gooding county is a purely ministerial act. (Stein v. Morrison, 9 Idaho 426, 75 P. 246.)

A writ of prohibition can only issue to restrain courts of inferior jurisdiction, and cannot issue to restrain purely ministerial acts. (Spring Valley Water Works v. City and County of San Francisco, 52 Cal. 111; People v. Board of Election Commrs., 54 Cal. 404.)

The test for determining whether an attempted exercise of authority may be arrested by a writ of prohibition is to inquire whether the act is ministerial or judicial in its nature. If it is ministerial, the writ cannot be maintained. (State v. Clark County Court, 41 Mo. 44; Hockaday v. Newsom, 48 Mo. 196; Dobson v. Westheimer, 5 Wyo. 24, 36 P. 626.)

The writ of prohibition will not lie against boards of county commissioners, boards of supervisors, highway commissioners, city councils, etc., when they are acting in their ministerial or legislative capacity. (La Croix v. Fairfield Co. Commrs., 49 Conn. 591; Board of Education v. Holt, 51 W.Va. 435, 41 S.E. 337; Town of Hawks Nest v. County Court, 55 W.Va. 689, 48 S.E. 205.)

Officers of election and election commissioners having the supervision of elections are deemed ministerial in their functions, and hence not subject to the writ of prohibition in reference to acts done in calling and preparing for elections. (People v. Board of Election Commrs., 54 Cal. 404; Kemp v. Ventulett, 58 Ga. 419; Lemon v. Peyton, 64 Miss. 161, 8 So. 235.)

SULLIVAN J. Stewart, J., AILSHIE, C. J., concurring.

OPINION

SULLIVAN, J.

This is an original application to this court for a writ of prohibition to restrain the board of county commissioners of Gooding county from selling or disposing of a bond issue of $ 160,000.

It is alleged in the affidavit or complaint that there are four highway districts in Gooding county, including within their boundaries five sixths of the taxable property of that county, as well as about two thirds of the electors of said county; that the said several highway districts were contemplating bond issues of their own, and on the 23d day of September, 1913, the board of county commissioners issued a notice of election to be held on the 18th of October, 1913; that said resolution was not voted upon and that the records of the board of county commissioners show that fact; that the notice does not recite the decision of the board to bond said county, and that the notice does not state the purpose of said bond issue; that on the 13th day of October, 1913, said board passed a resolution stating that if the bond issue carried, the proceeds of said bonds would be distributed upon a sale thereof among the highway districts of Gooding county. Said resolution is as follows:

"Whereas, the people of Gooding County are to vote on the proposition of a road bond in the amount of $ 160,000, and in the event the bond should carry:

"Be it resolved by the Board of County Commissioners that the proceeds be divided among the organized Highway Districts as now organized, or to be organized, in the proportion to the valuation of said Districts and that said monies so apportioned shall be turned over to said Highway Districts immediately upon said bonds being sold and the monies received therefor by Gooding County, Idaho, to be used by said Highway Districts as they shall see fit and all monies apportioned to unorganized territory on the same basis and spent by the Board of County Commissioners in said unorganized territory."

It is also alleged that said resolution induced the electors of Gooding county to vote favorably upon said bond issue, and had it not been for said resolution the bond issue would have been defeated.

The alternative writ of prohibition was issued and upon return day thereof the defendants filed their answer, wherein was set forth the entire proceedings of said board in regard to the calling of said bond election and the result thereof.

Said election resulted in favor of the bond issue by a vote of 849 in favor of and 83 against the bonds. The board thereafter advertised for bids for the purchase of said bonds and thereafter a number of bids were made for the purchase of said bonds, and the bid of John Nuveen & Co. offering to purchase said bonds at par was accepted, said bonds to bear interest at the rate of five per cent. Thereafter said board met and took up the matter of the distribution of the money to be received from the sale of said bonds and adopted a form of contract or agreement between Gooding county and each of said highway districts, whereby it was proposed to distribute said proceeds in accordance with the resolution passed by said board and above set forth. At that stage of the proceedings the alternative writ of prohibition was issued by this court, directed to said board of county commissioners.

Counsel for the plaintiff contends: (1) That the board of county commissioners at their meeting of September 23, 1913, did not...