Boise City v. Better Homes, No. 7842

CourtUnited States State Supreme Court of Idaho
Writing for the CourtTAYLOR
Citation243 P.2d 303,72 Idaho 441
Docket NumberNo. 7842
Decision Date04 April 1952
PartiesBOISE CITY v. BETTER HOMES, Inc.

Page 303

243 P.2d 303
72 Idaho 441
BOISE CITY

v.
BETTER HOMES, Inc.
No. 7842.
Supreme Court of Idaho.
April 4, 1952.
As Corrected on Denial of Rehearing May 1, 1952.

[72 Idaho 443]

Page 304

Maurice H. Greene and Ariel L. Crowley, Boise, for appellant.

[72 Idaho 444] C. Stanley Skiles and Anderson & Kaufman, all of Boise, for respondent.

TAYLOR, Justice.

Boise City, a municipal corporation organized and existing under a special charter, commenced this action in the district court in Ada County on December 18, 1950, for the purpose of enjoining the defendant from maintaining a lumber yard on its property located in a 'D Commercial' zone.

First the defendant challenges the jurisdiction of the district court, asserting that 'it is without jurisdiction of the subject matter.' The objection is based upon the sentence found in section 57, paragraph 3, of the charter, to-wit: 'The municipal court shall have exclusive jurisdiction of all matters of violations of the city ordinances.'

Appellant contends that by this provision the legislature has given the municipal court jurisdiction of the present action to the exclusion of the district court. The original jurisdiction conferred upon the district court by the constitution, Art. 5, § 20, [72 Idaho 445] cannot be diminished by the legislature. Const.Art. 5, § 13, Fox v. Flynn, 27 Idaho 580, 150 P. 44; Robinson v. Robinson, 70 Idaho 122, 212 P.2d 1031. As to whether or not the legislature has the power to create a municipal court with jurisdiction in equity such as is involved here, Art. 5, §§ 2, 14, we do not decide. It is sufficient to the disposition of this cause to say that a consideration of the provisions of section 57 of the charter leads to the conclusion that the legislature did not attempt to create a court with such jurisdiction. First, it is noted the city magistrate is not required to be learned in the law. (Paragraph 1.) Following the sentence relied upon and above quoted from paragraph 3, that paragraph further provides: '* * * It shall have original jurisdiction of all actions brought to recover or enforce any forfeiture or penalty declared by any city ordinance, where the amount involved does not exceed $500.'

A jurisdiction, which as to amount, is parallel to that of the probate court. Const.Art. 5, § 21. Finally, paragraph 5 provides: 'Appeals may be taken and shall be allowed fron final judgments rendered in the municipal court in all actions, in the same manner and with like effect, that appeals may be taken and shall be allowed from final judgments rendered in justices' courts.'

It is apparent that the legislature did not intend to create a court with the broad equitable jurisdiction claimed for it by appellant.

It is settled that a city may invoke the aid of equity to enforce its police regulations in a case of this kind, and that the misdemeanor penalty provided by the ordinance is not an adequate remedy. City of Idaho Falls v. Grimmett, 63 Idaho 90, 117 P.2d 461; City of Stockton v. Frisbie & Latta, 93 Cal.App. 277, 270 P. 270; Town of Gallup v. Constant, 36 N.M. 211, 11 P.2d 962; City of San Mateo v. Hardy, 64 Cal.App.2d 794, 149 P.2d 307; Donovan v. Santa Monica, 88 Cal.App.2d 386, 199 P.2d 51. We conclude that the action was properly commenced in the district court.

Page 305

The trial court, in its conclusions, held that 'the legality of the organization of a municipality cannot be attacked at the suit of a private party.' This is assigned as error. Assuming the conclusion to mean that a private party cannot attack the annexation of territory to a municipality, we are in disagreement. In the first place an attack upon annexation proceedings is not an attack upon the organization of the municipality itself. Annotation 13 A.L.R.2d 1279, § 4. A property owner who is affected by the proceedings may attack the annexation. Idaho Falls v. Grimmett, 63 Idaho 90, 117 P.2d 461; Sharkey v. Butte, 52 Mont. 16, 155 P. 266; People ex rel. v. Hausen, 276 Ill. 204, 114 N.E. 596; McQuillin, 3rd Ed., §§ 7.41, 7.43, 20.19, 20.22; 62 C.J.S., Municipal Corporations, §§ 65, 66.

[72 Idaho 446] At the time of the adoption of the original zoning ordinance the defendant's land was not within the boundaries of the city. In October, 1948, a petition was filed with the city clerk which recites as follows: 'The undersigned qualified voters in the territory hereinafter described, numbering more than 15% of the qualified voters voting in said territory at the last preceeding general election, hereby pray for the annexation of the following described territory to Boise City, Ada County, Idaho, towit:'

Then follows a description of the area to be annexed, which includes defendant's property. The minutes of the meeting of the council of October 26, 1948, recite as follows:

'Petitions for annexation to Boise City signed by 523 residents on the Whitney Bench Area was presented to the City Council, * * *.

'Moved by Burt seconded by Grim that the petitions be received and that November 12th, 1948, be the date set for holding an annexation election for a portion of Whitney Bench Area and that the South Jr. High School be the place designated for holding said election. Roll call on the motion resulted as follows: Yeas: Hardy, Grim and Burt. All votes being in the affirmative Mayor Howard declared the motion carried.'

The clerk testified that he had no document entitled 'Call for election,' and that there are no other minutes, showing any further action by the mayor or council regarding the petition or the calling of the election. The notice of election, which was published as required by the charter, recites, among other things: 'said petition being signed by more than fifteen per cent (15%) of the qualified voters of said territory voting therein at the last general election.' The election was held and returns were made to and canvassed by the mayor and council. On November 15, 1948, a resolution was passed and approved declaring the lands described in the petition to be annexed to and within the territorial and corporate limits of the city.

The defendant by affirmative answer challenges the legality of the annexation proceedings, alleging that the procedure provided by the charter for the annexation of territory to the city was not complied with. Specifically it is urged that there was no determination by the council that the petition was signed by 'at least fifteen per cent of the qualified voters' of the territory to be annexed 'voting at the last preceding general election'; or that the council made a determination as to whether the annexation should be submitted to the voters; that the mayor did not join in a call for an election; and that no call for the election...

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26 practice notes
  • White v. City of Twin Falls, No. 8711
    • United States
    • United States State Supreme Court of Idaho
    • April 27, 1959
    ...attains in favor of the validity of a municipal ordinance. Continental Oil Co. v. City of Twin Falls, supra; Boise City v. Better Homes, 72 Idaho 441, 243 P.2d 303; City of Lewiston v. Mathewson, Respondent, in attempting to uphold the so-called general welfare aspects of Ordinance No. 1034......
  • Ben Lomond, Inc. v. City of Idaho Falls, No. 10094
    • United States
    • Idaho Supreme Court
    • December 6, 1968
    ...3 Ellish v. Village of Suffern, 30 A.D.2d 554, 291 N.Y.S.2d 178 (1968). 4 243 Miss. 34, 137 So.2d 549 (1962). 5 Id. at 42, 551. 6 Id. 7 72 Idaho 441, 243 P.2d 303 8 91 Idaho 481, 425 P.2d 52 (1967). 9 Comment, Stop-Gap and Interim Legislation, A Device to Maintain the Status Quo of an Area ......
  • Cole-Collister Fire Protection Dist. v. City of Boise, COLE-COLLISTER
    • United States
    • Idaho Supreme Court
    • March 10, 1970
    ...P.2d 995; Seifert v. City of Poplar Bluff, Mo.App., 112 S.W.2d 93; McQuillin, 3rd Ed., §§ 22.34, 24.31.' Boise City v. Better Homes, Inc., 72 Idaho 441 at 447, 243 P.2d 303 at 306 See also, City of Idaho Falls v. Grimmett, 63 Idaho 90, 91, 117 P.2d 461 (1941); 3 Anderson, American Law of Zo......
  • Port Valdez Co., Inc. v. City of Valdez, No. 1996
    • United States
    • Supreme Court of Alaska (US)
    • May 20, 1974
    ...City of Port Townsend, 12 Wash. 605, 41 P. 923, 925 (1895). The only contrary authority may be found in Boise City v. Better Homes, Inc., 72 Idaho 441, 243 P.2d 303, 305 (1952). But the Boise City case allows attack only for a 'jurisdictional defect'. Id: at 306. The only state other than A......
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26 cases
  • Ben Lomond, Inc. v. City of Idaho Falls, No. 10094
    • United States
    • Idaho Supreme Court
    • December 6, 1968
    ...3 Ellish v. Village of Suffern, 30 A.D.2d 554, 291 N.Y.S.2d 178 (1968). 4 243 Miss. 34, 137 So.2d 549 (1962). 5 Id. at 42, 551. 6 Id. 7 72 Idaho 441, 243 P.2d 303 8 91 Idaho 481, 425 P.2d 52 (1967). 9 Comment, Stop-Gap and Interim Legislation, A Device to Maintain the Status Quo of an Area ......
  • White v. City of Twin Falls, No. 8711
    • United States
    • United States State Supreme Court of Idaho
    • April 27, 1959
    ...attains in favor of the validity of a municipal ordinance. Continental Oil Co. v. City of Twin Falls, supra; Boise City v. Better Homes, 72 Idaho 441, 243 P.2d 303; City of Lewiston v. Mathewson, Respondent, in attempting to uphold the so-called general welfare aspects of Ordinance No. 1034......
  • Cole-Collister Fire Protection Dist. v. City of Boise, COLE-COLLISTER
    • United States
    • Idaho Supreme Court
    • March 10, 1970
    ...P.2d 995; Seifert v. City of Poplar Bluff, Mo.App., 112 S.W.2d 93; McQuillin, 3rd Ed., §§ 22.34, 24.31.' Boise City v. Better Homes, Inc., 72 Idaho 441 at 447, 243 P.2d 303 at 306 See also, City of Idaho Falls v. Grimmett, 63 Idaho 90, 91, 117 P.2d 461 (1941); 3 Anderson, American Law of Zo......
  • Penrod v. Crowley, No. 8922
    • United States
    • Idaho Supreme Court
    • October 14, 1960
    ...285 N.W. 59, 63; Keenan v. Price, 68 Idaho 423, 434, 195 P.2d 662; Lewis v. Woodall, 72 Idaho 16, 236 P.2d 91; Boise City v. Better Homes, 72 Idaho 441, 448, 243 P.2d 303; Keyes v. Class 'B' School Dist. No. 421, 74 Idaho 314, 320, 261 P.2d 811; People ex rel. Elder v. Sours, 31 Colo. 369, ......
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