Henley v. Elmore County

• Decision Date: 07 March 1952
• Docket Number: No. 7832,7832
• Citation: 72 Idaho 374,242 P.2d 855
• Parties: HENLEY v. ELMORE COUNTY et al.
• Court: Idaho Supreme Court

Page 855

242 P.2d 855

72 Idaho 374

HENLEY v. ELMORE COUNTY et al.

No. 7832.

Supreme Court of Idaho.

March 7, 1952.

Rehearing Denied April 24, 1952.

Perce Hall, Mountain Home, Ariel L. Crowley, Boise, for appellants.

James, Shaw & James, Gooding, for respondent.

KEETON, Justice.

A special bond election was held June 8, 1950, in Elmore County, at which election there was submitted for determination the question of whether or not the commissioners should be authorized and empowered to issue negotiable coupon bonds in the sum of $85,000 to build a hospital as authorized by Sec. 31-3502, I.C.

The commissioners canvassed the returns and found there were 935 votes cast; that 639 of the persons voting voted 'yes' and 306 voted 'no', and declared the bond issue carried.

Plaintiff, a qualified taxpayer and voter, respondent here, brought this proceeding to have the proposition submitted adjudged defeated, and in his complaint alleged that 34 persons were permitted to vote at the election who were not taxpayers, and hence not qualified to vote. The complaint set out the names of the 34 persons so claimed disqualified and alleged 29 of said persons voted in favor of issuing the bonds, and further: 'That if said 34 illegal voters had not been permitted to vote at said election, said proposition would not have received the required two-thirds vote. That by reason of the foregoing, said proposition failed to carry, * * *.'

Defendant, Elmore County, and its board of county commissioners and clerk filed an answer which denied that the persons named in the complaint as illegal voters were disqualified voters, and further denied that the election failed to carry.

The trial judge found that 18 of the persons named who voted 'yes' on said proposition were not at the time of the election qualified to vote; that 17 of the said 18 did not appear on the 1949 real or personal property tax rolls as taxpayers of the county, and that one of the 18 named as voting in favor of the proposition was not a citizen. The court further concluded that the total number of legal votes cast at said election was 917 and that the number of legal votes cast in favor of said proposition was 611; that the bond election failed to carry. The decree canceled and annulled the canvass made by the board of county commissioners.

By assignments of error, the appellants challenge the jurisdiction of the trial court to hear and determine the matter, contending that the action should have been by writ of prohibition and not what the appellants contend is an action for declaratory judgment.

Sec. 34-2001, I.C., authorizes a contest of an election that has been submitted to a vote of the people, Subdivision 5: 'When illegal votes have been received or legal votes rejected at the polls sufficient to change the result.' and Art. 5, Sec. 20 of the Constitution provides: 'The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law.' And Sec. 1-705, I.C., specifically confers original jurisdiction in the district court.

A taxpayer may contest the result of an election held to determine the question of incurring an indebtedness or as to the issuing of bonds, whether the result is in favor or against the proposition; and such taxpayer is sufficiently interested to maintain such an action to contest the official declaration of the result of such bond election. Harrison v. Board of County Commissioners, 68 Idaho 463, 198 P.2d 1013; Ashley v. Richard, 32 Idaho 551, 185 P. 1076; Whitten v. Chapman, 45 Idaho 653, 264 P. 871; 64 C.J.S., Municipal Corporations, § 2127, pp. 943-944, and § 2146, p. 961; 44 C.J., 1378, sec. 4553; Appalachian Elec. Power Co. v. Galax, 173 Va. 329, 4 S.E.2d 390; Vaughan v. Galax, 173 Va. 335, 4 S.E.2d 386; Gibson v. Supervisors of Trinity County, 80 Cal. 359, 22 P. 225.

Whether this proceeding be classified as an action at law or a suit in equity, or special proceedings, or by some other name, we deem unimportant. The election authorizing the bonds was sufficiently challenged.

Appellants contend that the word 'people' as used in Sec. 34-2001, I.C., in the following sentence: 'The election of any person to any public office, the location or relocation of a county seat, or any proposition submitted to a vote of the people may be contested:' (emphasis supplied) is distinguishable from the word 'taxpayers' whose names appear on the tax rolls, and the contest authorized by the section applies only to instances where all the people of a county or district are permitted to vote and not where they are limited to a particular class, such as taxpayers, and for that reason the respondent cannot maintain this action.

We hold that the word 'people' as used in this section (Sec. 34-2001, I.C.) means the persons qualified to vote at the election being held.

Appellants further contend that the term 'taxpayers' as used in the amended complaint, as persons qualified to vote, did not include or specify the wife or husband of a taxpayer, which wife or husband would be entitled to vote under the provisions of Sec. 31-1905, I.C.

Sec. 31-3502, I.C., provides:

'* * * No person shall be qualified to vote at any election held under the provisions of this section unless he shall possess all the qualifications required of electors under the general laws of this state and is a taxpayer in such county.

'The board shall be governed in calling and holding such election and in the issuance and sale of such bonds, and in the providing for the payment of the principal and interest thereon by the provisions of sections 31-1901-31-1909, inclusive, and by the provisions of the 'Municipal Bond Law' of the state of Idaho, chapter 2 of title 57.'

By reference the definition of a taxpayer qualified to vote is contained in Sec. 31-1905, I.C., hereinafter set forth.

We conclude that the word 'taxpayer' as used in the complaint includes a husband or wife of a taxpayer. Hence, the complaint was sufficient. Further, if there were any error it was cured by the proof.

City of Pocatello v. Murray, 23 Idaho 447, 130 P. 383, and other cases cited by appellants as expressing a contrary view are not in point.

The complaint was verified by the attorney for the respondent, and the appellants challenge the verification as unauthorized. Assuming, but not deciding, that the verification was defective, it was waived by failure of the defendants to make a motion before the trial, challenging the verification. A defective verification is not jurisdictional and is waived by failure to make proper motion. 41 Am.Jur. 487, sec. 287; Pence v. Durbin, 1 Idaho 550.

Appellants contend that at the trial the court restricted the qualifications of persons qualified to vote at the election to those persons whose names appeared on the 1949 tax roll, and ignored the 1950 qualifications of certain persons who had voted at the election and whose names did not appear on the 1949 tax rolls, but did or would appear on the 1950 tax rolls.

The election challenged in the proceedings taken was conducted pursuant to the provisions of Sec. 31-1905 and 31-3502, I.C. Sec. 31-1905, I.C., after providing how the question to be determined is to be voted upon, specifies qualifications of those who may vote at such election:

'No person shall vote at any such bond election who is not:

'1. A qualified elector of the district; and,

'2. A bona fide resident thereof for more than thirty days last past; and,

'3. A. A taxpayer; or,

b. The wife or husband of a taxpayer.'

A taxpayer as defined in said section is: '* * * a person whose name appears on the tax rolls of the county and is there assessed with unexempt real or personal property owned and subject to taxation within the boundaries of the district.' (In this case, Elmore County) (Emphasis supplied.)

What tax rolls did the legislature intend? What is meant by 'a person whose name appears on the tax rolls'?

The commissioners, and those conducting the election evidently interpreted the section to mean the rolls of 1949, as such rolls were used in the notice of election and in determining who was qualified to vote. The trial judge simply followed the interpretation placed on the statute by those who conducted the election.

If the rolls intended by the legislature were the tax rolls of 1950, such rolls could not be used for an election held in June of that year for the reason that such rolls were not yet prepared or in existence when the election was held, and who would or would not appear on said rolls of 1950 had at the time of the election not been determined. Sec. 63-401, I.C.

Further, persons whose names appeared or would appear on the 1950 tax rolls with unexempt property subject to taxation were prohibited from voting by those who conducted the election for the reason the 1949 tax rolls were thought by the election officials to be exclusive. Hence if the validity of the bond election were to be determined by persons whose names would appear on the 1950 tax rolls when completed, other persons likewise appearing were disfranchised by the election officials.

Under the facts presented, we conclude that the court correctly limited the qualifications of voters to persons whose names appeared on the tax rolls then in existence; not to do so would permit a small part of the 1950 qualified voters to cast the deciding vote in determining the matter at issue. If some of such persons (1950 taxpayers) could have voted and have their...