Girard v. Miller
| Decision Date | 02 April 1935 |
| Docket Number | 6253 |
| Citation | 55 Idaho 430,43 P.2d 510 |
| Parties | FRANKLIN GIRARD, Individually, and as Secretary of State of the State of Idaho, Plaintiff, v. BERT H. MILLER, Attorney General of the State of Idaho, Defendant |
| Court | Idaho Supreme Court |
MANDAMUS-PUBLIC OFFICERS-ATTORNEY GENERAL-PREPARATION OF TITLE FOR REFERENDUM BALLOT.
Attorney General's duty to provide ballot title for referendum petition under statute held ministerial, and hence mandamus lay to compel performance thereof on application by Secretary of State (Sess. L. 1933, chap. 210, sec. 9).
APPLICATION for peremptory writ of mandate. Granted.
Peremptory writ of mandate issued.
J. L Eberle and James F. Ailshie, Jr., for Plaintiff.
There is a clear legal duty on the part of the Attorney General to provide the ballot title for H. B. 76, and a clear legal right to have the same provided, as in the application and affidavit alleged, and the Attorney General, as the ministerial officer, has no right to pronounce an act unconstitutional and so disobey it. (Article 3, sec. 1 Const.; chap. 210, Sess. Laws 1933; Logan v. Carter, 49 Idaho 393, 288 P. 424; Aker v. Aker, 51 Idaho 555, 8 P.2d 777; Reynard v. Caldwell, 53 Idaho 62, 21 P.2d 527, 90 A. L. R. 1124; Taylor v. Girard, 54 Idaho 487, 36 P.2d 773.)
Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Defendant.
Where an act of a legislature falls within a class not subject to the referendum, the Attorney General may properly refuse to prepare the ballot title, and he cannot be compelled to do so by mandamus. (Herbring v. Brown, 92 Ore. 176, 180 P. 328; 38 C. J. 673, sec. 220; Clough v. Curtis, 2 Idaho 523, 22 P. 8.)
Mandamus is a discretionary writ and will never be awarded unless the right to the thing sought to be done by it is clearly established. If the right is doubtful, the writ will be refused. (State v. Banks, 37 Idaho 27, 215 P. 468; State v. Malcolm, 39 Idaho 185, 226 P. 1083; Logan v. Carter, 49 Idaho 393, 288 P. 424.)
A. A. Fraser, Amicus Curiae.
Rice, District Judge, sat in place of Justice Ailshie.
Plaintiff seeks herein a writ of mandate to compel the defendant, who has heretofore refused, to provide a ballot title for a referendum petition, under chapter 210, Idaho Session Laws, 1933. An alternative writ issued and the case has been argued and submitted.
The defendant justifies his refusal on various statutory and constitutional grounds, and questions have been argued and presented to the court, none of which are deemed to be at the present time properly before the court, or essential to a decision of this matter.
The sole point now determined, and deemed necessary to be determined, is that the duty devolving upon the defendant is...
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Noh v. Cenarrusa, 28590.
...v. Echohawk, 124 Idaho 147, 857 P.2d 626 (1993); In Re Idaho State Fed'n of Labor, 75 Idaho 367, 272 P.2d 707 (1954); Girard v. Miller, 55 Idaho 430, 43 P.2d 510 (1935). However, none of these cases dealt with the justiciability issues present in this case, and none of these cases involved ......
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...418, 101 P. 821; Nampa v. Nampa & Meridian Irr. Dist., 23 Idaho 422, 131 P. 8; People ex rel. Thompson v. Cothern, supra; Girard v. Miller, 55 Idaho 430, 43 P.2d 510; Robinson v. Enking, 58 Idaho 24, 69 P.2d 603; Murtaugh Highway Dist. v. Merritt, 59 Idaho 603, 85 P.2d 685; Maguire v. Whill......
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...210, § 9, 1933 Idaho Session Laws 431, 437-38. This Court was first asked to apply the provisions of I.C. § 34-1809 in Girard v. Miller, 55 Idaho 430, 43 P.2d 510 (1935). In Girard, the Idaho Secretary of State asked the Court to issue a writ of mandate to compel the Attorney General to pro......