Boyd v. Bickel

• Citation: 13 Idaho 191,89 P. 631
• Parties: T. O. BOYD et al., Respondents, v. P. S. A. BICKEL et al., Appellants
• Decision Date: 22 March 1907
• Court: United States State Supreme Court of Idaho

89 P. 631

13 Idaho 191

T. O. BOYD et al., Respondents, v. P. S. A. BICKEL et al., Appellants

Supreme Court of Idaho

March 22, 1907

VILLAGE GOVERNMENT-CONSTRUCTION OF STATUTE.

1. Where a statute provides that: "Whenever any village containing more than one thousand inhabitants desires to discontinue its organization as a village, and organize as a city of the second class, and a number of the qualified electors of said village equal to three-fifths of the total vote as shown by the last preceding general village election held in said village, shall petition the board of trustees of such village therefor,.... it shall be the duty of said board of village trustees, etc.," and a petition for change of government is filed prior to the holding of any election within the village as designated by the act, it will be a sufficient compliance with the law for the petitioners to show that, as a matter of fact, their petition is signed by a number of qualified electors of the village equal in number to three-fifths of all the electors of the municipality at the time of filing and presenting the petition.

2. The statute in such case is held to be directory only, and where the method designated for ascertaining the number of electors is impossible of application, then the real and vital fact to be ascertained will be discovered by the usual modes of proof.

3. Further, held, that the vital and essential fact required by the statute in this case is that the village should contain "more than one thousand inhabitants," and that not less than "three-fifths" of the "electors" of the village shall petition for the change of municipal government.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for Cassia County. Hon. Alfred Budge, Judge of the Fifth District, presiding.

Action to procure a writ of mandate against the board of trustees of the village of Twin Falls. Judgment for plaintiffs and writ ordered issued. Defendants appealed. Affirmed.

Judgment of the lower court affirmed. Costs awarded to respondents.

S. T Hamilton and W. P. Guthrie, for Appellants, cite no authorities.

M. J Sweeley and F. H. Eastman, for Respondents.

The method of ascertaining the number of electors in the village, stated in the statute, is directory merely; such construction should be given the statute as will give it effect; the fact of the number of voters, and not the method of ascertaining it, is the controlling feature. A reference to the vote of a stated election is not the only way in which to determine the number of voters, especially where no such election was ever held, and where the legislature has fixed an impossible standard, it is the duty of a court to so construe the law as to accept a substantial compliance. (Carrigan v. Stillwell, 99 Me. 434, 59 A. 683, 68 L. R. A. 386; Smythe v. Fiske, 23 Wall. 374, 23 L.Ed. 47; Holmes v. Paris. 75 Me. 559; Landers v. Smith, 78 Me. 212, 3 A. 463; United States v. Kirby, 7 Wall. 482, 19 L.Ed. 278; Territory v. Clark, 2 Okla. 82, 35 P. 882; Cleveland v. Backus, 133 Ind. 513, 33 N.E. 421, 18 L. R. A. 729; Lamkin v. Sterling, 1 Idaho 92.)

A case squarely in point in principle is that of Territory v. Whitehall, 13 Okla. 534, 76 P. 148.

In 1898 Congress passed an act authorizing cities having a population of not less than one thousand, "as shown by a school census," to issue bonds. The city of Bridgeport issued bonds without having taken a school census, and the point at issue was whether the population could be determined in any manner other than that prescribed by the act.

The court held the provision directory merely, and sustained the bonds, because it was shown by other evidence that the population of the town in fact was the number fixed by the law.

"The most satisfactory and conclusive test of the question whether or not the provisions of a statute are mandatory or directory, is whether the prescribed mode of action is of the essence of the thing to be accomplished; in other words, whether it relates to matters material or immaterial, to matters of convenience or of substance." (Gallup v. Smith, 59 Conn. 354, 22 A. 334, 12 L. R. A. 353.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

This action was instituted for the purpose of securing a writ of mandate against the board of trustees of the village of Twin Falls, commanding them to take the action necessary to convert the village government into that of a city of the second class, under the requirements of the statutes. The inhabitants of the village sought to change their form of government under the provisions of section 1 of an act approved March 9,...