Best v. Broadhead
| Decision Date | 19 April 1910 |
| Citation | 108 P. 333,18 Idaho 16 |
| Parties | W. H. BEST, Respondent, v. J. W. BROADHEAD, Appellant |
| Court | Idaho Supreme Court |
Judgment reversed and a new trial ordered. Costs awarded to appellant.
Ezra R Whitla, for Appellant.
"The object and purpose of the title is to show the general character of the ordinance, so that anyone may not be misled thereby." (State v. Calloway, 11 Idaho 719, 114 Am. St. 285, 84 P. 27, 4 L. R. A., N. S., 109; Village of St. Anthony v. Brandon, 10 Idaho 205, 77 P. 322; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am St. 201, 68 P. 295; 28 Cyc. 379; State v. Nebraska Telephone Co., 127 Iowa 194, 103 N.W. 120.)
If the title of the ordinance does not mislead or deceive the people or the council as to the purpose or effect of the legislation or conceal or obscure the same, it is valid. (28 Cyc. 380; Smith v. Emporia, 27 Kan. 528; Healy v Johnson, 127 Iowa 221, 103 N.W. 92; City of Des Moines v. Keller, 116 Iowa 648, 93 Am. St. 268, 88 N.W. 827, 57 L. R. A. 243; City of Duluth v. Abrahamson, 96 Minn. 39, 104 N.W. 682; Thomson v. City of Highland Park, 187 Ill. 265, 58 N.E. 328.)
An enacting clause is simply a formality and neither adds anything to, or detracts from, the validity of the ordinance in any way. (Cape Girardeau v. Riley, 52 Mo. 424, 14 Am. Rep. 428; People ex rel. Town of Sterling v. Chipman, 31 Colo. 90, 71 P. 1108; City of Tarkio v. Cook, 120 Mo. 1, 41 Am. St. 678, 25 S.W. 202; State ex rel. Dunlap v. Nohl, 113 Wis. 15, 88 N.W. 1004; 1 Dillon, Mun. Corp., 4th ed., pp. 309-536, 538; 28 Cyc. 353.)
An amending ordinance need not contain the entire section amended, but only that provision thereof sought to be amended. (28 Cyc. 387; Pentecost v. Stiles, 5 Okla. 500, 49 P. 921; Ex parte Wolf, 14 Neb. 24, 14 N.W. 660; Larkin v. Burlington C. R. & N. Ry. Co., 85 Iowa 492, 52 N.W. 480.)
R. E. McFarland, for Respondent.
The titles to Ordinances Nos. 36 and 40 are insufficient, null and void. (Laws 1899, p. 209, sec. 83; Mo. P. Ry. Co. v. City of Wyandotte, 44 Kan. 32, 23 P. 950; State ex rel. Belt v. City of St. Louis, 161 Mo. 371, 61 S.W. 658; Town of Cantril v. Sainer, 59 Iowa 26, 12 N.W. 753; Stebbins v. Mayer, 38 Kan. 573, 16 P. 745.)
The enacting clause of said Ordinance No. 40 is null and void. (Laws 1899, p. 200, sec. 59; Galveston H. & S. A. Ry. Co. v. Harris (Tex. Civ. App.), 36 S.W. 776.)
Ordinance No. 40 is not a valid ordinance because it does not comply with the laws of this state in reference to amending or repealing ordinances or sections of ordinances. (Laws 1899, p. 209, sec. 83; Pentecost v. Stiles, 5 Okla. 500, 49 P. 921; O'Neill v. Tyler, 3 N.D. 47, 53 N.W. 436; Cascaden v. City of Waterloo, 106 Iowa 673, 77 N.W. 333; City of Jacksonville v. Ledwith, 26 Fla. 163, 23 Am. St. 558, 7 So. 885, 9 L. R. A. 69; McQuillan, Mun. Ordinances, par. 196.)
A rehearing was granted in this case and upon reargument it was contended by counsel for respondent that Ordinances Nos. 36 and 40, regulating the running at large of certain stock and providing for the impounding thereof in the town of Post Falls, were illegal and void. Certified copies of these ordinances were offered in evidence, and a number of specific objections to their introduction were made by counsel for respondent, and the trial court sustained the objection that the statute did not authorize such ordinances; and it was this question this court discussed and decided in the former opinion.
Counsel for respondent upon reargument urges very earnestly that this court should also determine the validity of the ordinances, for the reason that the cause having been reversed, the validity of such ordinances will necessarily arise upon a retrial of said case. Counsel for appellant, however, contends that the validity of such ordinances, because of their form, is not presented by the record. Strictly speaking, this contention is no doubt correct, but in view of the fact that a new trial has been ordered, and the validity of such ordinances will necessarily be involved, and counsel upon the reargument having fully and exhaustively discussed the validity of such ordinances, we have concluded to express our views with reference to the same.
It is first contended that the title to Ordinance No. 36 is insufficient, because it does not express or contain the subject matter of said ordinance, and does not specify the penalty or punishment for a violation thereof, and does not refer to the provisions contained therein for the impounding and sale of the animals described, and does not describe the territory within which such animals are prohibited from running at large. The title reads as follows: "An act relating to domestic animals and prohibiting their running at large." Sec. 2276, Rev. Codes, provides: "Ordinances shall contain no subject which shall not be clearly expressed in their title." It is unnecessary in the title of an ordinance to index every particular provision contained therein. It is sufficient if the title in its general scope clearly expresses the object and purpose of such ordinance. When, therefore, the title provides that it is "An act relating to domestic animals and prohibiting their running at large," it is sufficient to authorize the incorporation therein of all provisions incident to the regulation and prohibition of animals running at large, such as naming the kind, the territory or place, the impounding and sale, the fees to be collected, and the penalty. We think this title sufficient. (Village of St. Anthony v. Brandon, 10 Idaho 205, 77
P. 322; State v. Calloway, 11 Idaho 719, 114 Am. St. 285, 84 P. 27, 4 L.R.A. N.S. 109; Town of Bayard v. Baker, 76 Iowa 220, 40 N.W. 818; McQuillan on Munic. Ordinances, sec. 141; Smith v. City of Emporia, 27 Kan. 528.)
Secs. 1 and 10 of the ordinance clearly described the territory. It is true it does not say that the territory is within the town of Post Falls, yet the ordinance has reference only to the town of Post Falls and could not extend beyond its boundaries, and can only apply to the territory described and within the town. The territory is described as follows: "Limit of territory included in this ordinance commencing at a point where Sixty street intersects with the Spokane river, thence running in an easterly direction to Idaho street, thence running south to Spokane river, thence along the main or north channel to the place of beginning." This is sufficient.
It is next contended that the enacting clause of the ordinance is not in the form provided by sec. 2274, Rev. Codes. This section provides: "The style of all ordinances shall be: 'Be it ordained by the mayor and council of the city of or the chairman and board of trustees of the village of .'" The enacting clause of Ordinance No. 36 reads as follows: "Be it ordained by the town of Post Falls."
It will thus be seen that the enacting clause of Ordinance No. 36 is not in the language of the statute. The enacting clause of an ordinance, however, is merely a declaration of intention and purpose, and the enacting clause of Ordinance No. 36 clearly shows the intention and purpose of the town of Post Falls to enact such ordinance and that it was the town of Post Falls which enacted the same, and such appearing from the enacting clause is a sufficient compliance with the statute. The statute is directory only. (McQuillan on Munic. Ordinances, sec. 145; City of Napa v. Easterby, 76 Cal. 222, 18 P. 253; State v. Fountain, 14 Wash. 236, 44 P. 270; People v. Murray, 57 Mich. 396, 24 N.W. 118; People v. Chipman, 31 Colo. 90, 71 P. 1108; 1 Dillon, Munic. Corp., 4th ed., sec. 309.) We think, therefore, that Ordinance No. 36 was a valid ordinance, and was in force at the time of the trial unless repealed by Ordinance No. 40.
It is contended that Ordinance No. 40 is invalid for the reason that the title does not express the object or purpose of the ordinance, because it does not state or provide that it is an ordinance amending Ordinance No. 36. The title reads as follows: "An ordinance establishing the boundary limits and making known the limit of territory included in Ordinance No. 36." It thus appears that the object and purpose of this ordinance, as declared by the title, is to make some alteration or change in Ordinance No. 36, but the particular change as applied to any particular part of the ordinance is not disclosed in the title. The title of an amendatory ordinance would be sufficient if it indicated the particular section or part of the ordinance to be amended without declaring in such title the general scope or purpose of the ordinance amended; and while it would have been better, no doubt, to have indicated the particular section of Ordinance No. 36 to be amended and to have stated such fact in the title, yet we are inclined to think that the title is sufficient to indicate the purpose and intent to amend Ordinance No. 36.
It is next contended that Ordinance No. 40 is invalid for the reason that it does not indicate that the territory described is within the village of Post Falls. This objection is not well taken. The village of Post Falls is legislating with reference to its own territory, and its ordinances include only territory within the village corporation, and it would appear useless to say that the ordinance is made applicable to the village of Post Falls.
It is next urged that the enacting clause of Ordinance No. 40 is void because not in proper form. What has been said with reference to the enacting clause of Ordinance ...
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