Boise City National Bank v. Boise City

• Decision Date: 18 February 1909
• Citation: 100 P. 93,15 Idaho 792
• Parties: BOISE CITY NATIONAL BANK, Appellant, v. BOISE CITY, Respondent
• Court: Idaho Supreme Court

100 P. 93

15 Idaho 792

BOISE CITY NATIONAL BANK, Appellant, v. BOISE CITY, Respondent

Supreme Court of Idaho

February 18, 1909

ORGANIZATION OF MUNICIPAL CORPORATIONS-UNDER GENERAL LAWS-UNDER SPECIAL CHARTERS-AMENDMENT OF-BY SPECIAL LAW-BY GENERAL LAW-CONSTRUCTION OF SEWERS-PAYMENT OF-ISSUANCE OF BONDS-TAXATION-SPECIAL ASSESSMENTS-PAYMENT OF BY INSTALLMENT.

1. Under the provisions of sec. 2, art. XXI, of the Idaho Constitution, the special charters under which certain cities in the state had been incorporated were continued in force.

2. Under the provisions of sec. 1, art. XII, of the Constitution, the legislature is empowered to enact general laws for the incorporation and classification of cities and towns, and it is also provided in said section that cities and towns theretofore incorporated under special charters may become organized under such general laws whenever a majority of the electors at a general election shall so determine, under such provisions of law as may be enacted by the legislature.

3. The special charter of Boise City, as amended and re-enacted in 1907, contains all of the powers that that city has in regard to the construction of sewers and the method of levying assessments and collecting taxes for the payment of such sewers.

4. The powers of Boise City in regard to creating an indebtedness and paying the same and the method and manner of doing so must be determined by the provisions of its charter.

5. An act providing for the issuance of bonds for improvement of streets and laying of sewers in incorporated cities, towns and villages, and for the payment of the cost of such improvement, etc., approved February 24, 1905 (Sess. Laws 1905, p. 297), is a general law applicable to cities, towns and villages that have been incorporated under the general law of the state, and is not applicable to cities incorporated under special charter.

6. The special charters of the cities of this state cannot be amended by general laws.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

Action to determine the validity of certain bonds issued in payment for the construction of sewers. Judgment for the defendant. Reversed.

Reversed and remanded, with instructions. Costs awarded to the appellant.

Johnson & Johnson, and L. F. Clinton, for Appellant.

In the absence of legislative provision for collection of assessments in installments, a city may not prescribe that an assessment be divided into installments. (Farrell v. West Chicago, 162 Ill. 280, 44 N.E. 527; Culver v People, 161 Ill. 89, 43 N.E. 812.) Method of exercising power to levy and to collect assessments as provided by the statute is the measure of city's power to make it. (City of Bluffton v. Miller, 33 Ind.App. 521, 70 N.E. 989.) Where a power is conferred upon a municipal corporation and the manner in which it is to be exercised is prescribed, such mode must be pursued. (Carson v. Martin, 2 Dutch. (N. J.) 594, 69 Am. Dec. 584; Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96; Smith v. City of Newburgh, 77 N.Y. 130; State v. Newark, 25 N.J.L. 399; Hundley v. Lincoln Park Com., 67 Ill. 559.)

Where there is a special statute relating to a particular subject, this will control even as against a general law of later date. (Lawyer v. Carpenter (Ark.), 97 S.W. 662, 663, 664, and cases cited.)

Cities operating under special charters can only avail themselves of the general incorporation laws by a majority vote of the electors when the legislature provides the specific method, which has not yet been done. (Wiggin v. City of Lewiston, 8 Idaho 527, 69 P. 286; Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234; Desmond v. Dunn, 55 Cal. 242; Wood v. Election Commrs., 58 Cal. 568; Straude v. Elec. Commrs., 61 Cal. 313; In re Guerrero, 69 Cal. 88, 10 P. 261; Thomason v. Ashworth, 73 Cal. 73, 14 P. 615; Fritz v. San Francisco, 132 Cal. 373, 64 P. 566; McHugh v. City and County of San Francisco, 132 Cal. 381, 64 P. 570; Wichman v. City of Placerville, 147 Cal. 162, 81 P. 537.)

The proposition of permitting the legislature to amend or affect special charters in matters of local government, by general laws, is contrary both to the letter and to the spirit of the constitution. (City of Lexington v. Thompson, 113 Ky. 540, 101 Am. St. Rep. 361, 68 S.W. 477, 57 L. R. A. 775; People ex rel. Le Roy v. Hurlburt, 24 Mich. 44, 9 Am. Rep. 103; People ex rel. Park Commissioners v. Detroit, 28 Mich. 228, 15 Am. Rep. 202; State ex rel. Saunders v. Kohnke, 109 La. 838, 33 So. 793; State ex rel. Atty. General v. Moores, 55 Neb. 480, 76 N.W. 175, 41 L. R. A. 624.) Regarding the insufficiency of the title to the act of 1905, if it were intended to make it apply to cities operating under special charters, we call attention to the language of Mr. Justice Sharpstein, in delivering the opinion in Wood v. Board of Election Commrs., 58 Cal. 565. See, also, Turner v. Coffin, 9 Idaho 338, 74 P. 962; Katz v. Herrick, 12 Idaho 21, 86 P. 873.

Chas. M. Kahn, for Respondent.

"Where a law is substantially re-enacted, it is said to show that the legislature did not regard it as repugnant to an intermediate act to the same effect covering the same subject." (Lewis' Sutherland Stat. Construction, sec. 273, p. 525; Horn v. State, 114 Ga. 509, 40 S.E. 768.)

"A general law will be repealed pro tanto by a subsequent special act when the two acts cannot stand together, but if on a reasonable construction the two acts are not inconsistent and may stand together, the general act is not repealed by the later specific act." (26 Am. & Eng. Ency. of Law, 2d ed., p. 743; Hutchinson v. Self, 153 Ill. 542, 39 N.E. 27; State v. Witter, 107 N.C. 792, 12 S.E. 328; State v. Snow, 117 N.C. 778, 23 S.E. 323; People v. Wenzel, 105 Mich. 70, 62 N.W. 1038; Board of Commrs. of Barber County v. Savings Soc., 101 F. 767, 41 C. C. A. 667; Reusch v. City of Lincoln (Neb.), 112 N.W. 377; Ex parte Wilber (Neb.), 112 N.W. 379; Ladd v. Gambell, 35 Ore. 393, 59 P. 113. See, also, Stratton v. Oregon City, 35 Ore. 409, 60 P. 906.)

These last two cases are of a special importance, for the reason that the conditions under them and the case at bar are identical, and more so when the fact is known that the bonding act of 1905 was taken as a copy of the Bancroft bonding act of Oregon construed in the two above cases. (See, also, Long v. City of Portland (Or.), 98 P. 149; Ewing v. Hoblitzelle, 85 Mo. 64; Kenefick v. St. Louis, 127 Mo. 1, 29 S.W. 838.) Section 16, article 3, of the constitution, in regard to title, must be given a reasonable construction. (State v. Doherty, 3 Idaho 384, 29 P. 855; Andrews v. Commissioners, 7 Idaho 453, 63 P. 592; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. Rep. 201, 68 P. 295; Boise Irr. Co. v. Stewart, 10 Idaho 38, 77 P. 25; State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259; Vineyard v. Grangeville (Ida.), 98 P. 422.)

Counsel for appellant contend that because it does not say in the title of the act of 1905 that it shall apply to special chartered cities it is invalid. The title says it shall apply to all incorporated cities, towns, and villages; this certainly comprehends cities operating under special charters as it takes in all cities, towns, and villages in the state.

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was commenced by the appellant, the Boise City National Bank, to test the validity of a proposed issue by the respondent city, of lateral sewer improvement bonds of Sewer Districts Nos. 104, 105, and 106, amounting to $ 50,000. The respondent city now is, and for a long time prior to the adoption of the state constitution was, operating under a special charter, which has been amended several times by special acts of the legislature. The special charter of Boise City was originally passed and approved January 11, 1866, and was amended by act of March 11, 1903, and again on February 22, 1907, the charter of Boise City was re-enacted and amended, and what is known as the charter of 1907 went into force and effect. While operating under the charter of 1907, the city authorized the issuance of local improvement bonds for the lateral sewer districts above mentioned, for the sum of $ 50,000, and advertised for bids therefor, and the bid of the appellant for said bonds was accepted, the appellant accompanying said bid with a certified check for $ 2,500 as an evidence of good faith. After the bid of appellant had been accepted, the appellant bank refused to accept the bonds, contending that the same were invalid and requested the return of the check. The city refused to return the check, and the present action is the outcome of that controversy, to recover judgment against the city for the return of said certified check.

The respondent city answered, setting forth all of the facts in regard to said transaction. Thereupon counsel for the city made a motion for judgment on the pleadings on the ground and for the reason that from the complaint and answer it appeared that the respondent city was authorized by the act of the legislature to issue said bonds, which motion was granted and judgment accordingly entered. This appeal is from the judgment.

On February 24, 1905 (Sess. Laws 1905, p. 297), the legislature passed an act entitled: "An act to provide for the issuance of bonds for improvement of streets and laying of sewers in incorporated cities, towns and villages, and for the payment of the cost of such improvement and laying of sewers by installments, and making the provisions hereof applicable to cities, towns and villages which have levied special assessments for improvements or for laying sewers." Said bonds were...