Boise City v. Better Homes

• Decision Date: 04 April 1952
• Docket Number: No. 7842,7842
• Parties: BOISE CITY v. BETTER HOMES, Inc.
• Court: Idaho Supreme Court

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.

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

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, 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.

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.

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 was ever made. All of these steps are required by the charter provisions governing annexation.

Appellant assigns as error the admission in evidence of the resolution annexing the territory to the city upon the same ground of failure to comply with the provisions of the charter in the annexation proceedings. This same objection was made to the admission of ordinance No. 2011, by which the zoning ordinances of the city were amended to extend 'D Commercial' zone over a part of the territory annexed including the defendant's property. This ordinance was passed and approved February 14, 1949.

§ 9-315, I.C., provides:

'* * * official documents may be proved as follows:

* * *

* * * 'Acts of a municipal corporation of this state, or of a board or department thereof, by a copy, certified by the legal keeper thereof, or by a printed book, published by the authority of such corporation.'

§ 50-2005, I.C., reads in part: '* * * and all such ordinances may be proved by the certificate of the clerk under the seal of the city or village, and when printed or published in book or pamphlet form by authority of the city or village, shall be read and received in evidence in all courts and places without further proof.'

As against defendant's contention that these statutes are not applicable to a charter city, but that the charter governs admissibility, attention is called to the fact that these are rules of evidence for the government of the court, not the city. The resolution and ordinances here in question were authenticated as required and were properly admitted in evidence. Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006; State v. Clark, 47 Idaho 750, 278 P. 776; Idaho Falls v. Grimmett, 63 Idaho 90, 117 P.2d 461; State v. Poynter, 70 Idaho 438, 220 P.2d 386.

Ordinances and resolutions of a municipal corporation are presumed valid until the contrary is shown. The burden is on the party who attacks such an act to show the illegality thereof. Idaho Falls v. Grimmett, supra; Taos County Board of Ed. v. Sedillo, 44 N.M. 300, 101 P.2d 1027; Baxley v. City of Frederick, 133 Okl. 84, 271 P. 257; City of Spokane v. Coon, 3 Wash.2d 243, 100 P.2d 36; Hughes v. Carlsbad, 53 N.M. 150, 203 P.2d 995; Seifert v. City of Poplar Bluff, Mo.App., 112 S.W.2d 93; McQuillin, 3rd Ed., §§ 22.34, 24.31.

It is further presumed that the city officials complied with the requirements of the charter. People ex rel. Strong v. City of Whittier, 133 Cal.App. 316, 24 P.2d 219; Peerless Realty & Operating Co. v. City of Tulsa, 184 Okl. 335, 87 P.2d 118; McQuillin, 3rd Ed., §§ 7.34, 7.44, 14.03.

Provisions of the statutes governing elections, in the absence of legislative expression to the contrary, are regarded as directory, unless it appears that a failure to comply may affect the result of the election. Sizemore v. Board of County Commissioners, 36 Idaho 184, 210 P. 137; King v. Independent School District, 46 Idaho 800, 272 P. 507. In Boyd v. Bickel, 13 Idaho 191, 89 P. 631, it was held that the method, provided by statute for determining the required number of petitioners, is directory. This court has held that statutory regulations as to the time and manner of givig notice of elections are mandatory in case of a direct attack upon the proceedings before the election is held, but that...