Hodges v. Tucker

• Decision Date: 12 February 1914
• Citation: 25 Idaho 563,138 P. 1139
• Parties: ARTHUR HODGES, Mayor of Boise City, Plaintiff, v. JOHN TUCKER et al., Defendants
• Court: Idaho Supreme Court

138 P. 1139

25 Idaho 563

ARTHUR HODGES, Mayor of Boise City, Plaintiff, v. JOHN TUCKER et al., Defendants

Supreme Court of Idaho

February 12, 1914

DISTRICT COURTS-JURISDICTION-MUNICIPALITIES-POWER OF MUNICIPALITIES THAT HAVE ACCEPTED AND ADOPTED AS PROVIDED BY LAW THE PROVISIONS OF CHAPTER 82, LAWS OF 1911-REMOVAL OF OFFICERS OF MUNICIPALITIES.

1. Sec 7459, Rev. Codes, contains no specific provision relating to municipal officers, and there is no attempt or intent either expressed, or from which a presumption could be entertained to confer jurisdiction upon the district court to hear and determine a cause growing out of the violation of a city ordinance, or neglect of duty to enforce a city ordinance, in cities that have organized and accepted the provisions of the Black law, chap. 82, Laws of 1911.

2 Secs. 3829 and 3830, Rev. Codes, provide for the creation of district courts, and sec. 3829 provides as follows "District courts are hereby established to be held in each of the counties of this state which have been or may hereafter be organized by law, for the purpose of hearing and determining all matters and causes arising under the laws of this state. This court is presided over by district judges chosen by the qualified electors of their respective districts for a term of four years."

3. Sec. 20, art. 5 of the constitution of this state 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."

4. Sec. 7459 is a general statute which was enacted before the adoption of the constitution, and its provisions are not incorporated in the Black law, and therefore it is not in force as to municipalities organized under such law, and such section does not apply in the present case, and the provisions of the Black law provide a complete form of government for cities of the state of Idaho now or hereafter having a population of 2,500 or over, provided that such cities become organized under an election as provided for in such act.

5. Sec. 7459, Rev. Codes, was a general statute at the time it was adopted, and does not apply to cities and municipalities of the state which have the necessary population and have adopted the Black law by popular vote, and such section is inconsistent with the scheme devised in and by the Black law, and has no application and does not control the provisions embraced in chap. 82, Laws of 1911.

6. The Black law, Laws of 1911, p. 280, when considered as a whole, indicates that the legislature in enacting the same intended to provide a system complete within itself so far as the provisions of the act provide, and where it provides a method or means for doing an act, such as the removal of an officer elected under its provisions, it must and was intended to be exclusive of any other remedy provided prior to the enactment of chap. 82, Laws of 1911, and the legislature has provided the recall provision of the Black law as the only and exclusive means, except other provisions which relate to the power of the council in removing an appointive officer provided for in the Black law.

Application in this court for a writ of prohibition restraining and prohibiting Hon. Charles P. McCarthy, one of the judges of the District Court of the Third Judicial District, from exercising jurisdiction in an action brought in said court by John Tucker to remove Arthur Hodges as mayor of Boise City. Application granted and writ issued.

Permanent writ of prohibition issued. Costs awarded to plaintiff.

J. B. Eldridge and C. F. Reddoch, for Plaintiff.

Sec 7459 was a territorial statute at the time the organic act of the territory was adopted; in said act no reference was made to the officers of municipalities. (Rankin v. Jauman, 4 Idaho 53, 36 P. 502; Conwell v. village of Culdesac, 13 Idaho 575, 92 P. 535.)

Secs. 34, 35 and 36 of the Black law provide for the removal of elective officers by the recall. Sec. 47 prescribed a penalty in addition to ouster, to the effect that any officer removed by recall shall not be appointed to any city office or employment within two years after his removal. This constitutes a penalty. Sec. 7459 is inconsistent with the provision for the recall provided in the Black law, in that it provides a different punishment, sec. 7459 providing for the assessment of a fine of $ 500 in favor of the informant against the ousted officer; the recall provision providing for ouster by recall and disbarment to hold office for two years. (Dinan v. Superior Court, 6 Cal.App. 217, 91 P. 806.)

There is a vast difference between the functions of an exception and that of a proviso. An exception excepts out absolutely; a proviso defeats conditionally. (Acker v. Richards, 63 A.D. 305, 71 N.Y.S. 929; Waffle v. Goble, 53 Barb. (N. Y.) 517; Rowell v. Janvrin, 151 N.Y. 60, 45 N.E. 398; Western Assur. Co. v. Mohlman, 83 F. 811, 28 C. C. A. 157, 40 L. R. A. 561; Black, Inter. of Laws, 2d ed., p. 428; 2 Sutherland, Stat. Const., secs. 345, 351, 352.)

The various states which have passed acts similar to the Black law, with the provision for the removal of officers by the recall, have declared or omitted to so declare as to whether or not the remedy is cumulative. Had the legislature intended that the provisions of the Black law should not be the exclusive remedy for the removal of the mayor, it would not have put in the specific exception provided in sec. 2, and it would have declared the remedy to be cumulative. (Gillesby v. Board of Commrs., 17 Idaho 586, 107 P. 71.)

There is a growing tendency to permit cities and towns to regulate their local affairs. Why should we invoke one of the strong arms of the law of the state for the purpose of interfering in a purely local matter which concerns Boise City only and which in no wise relates to the enforcement of a state law? (Conn v. City Council, 17 Cal.App. 705, 121 P. 714, 719; Good v. Common Council, 5 Cal.App. 265, 90 P. 44; Hilzinger v. Gillman, 56 Wash. 228, 21 Ann. Cas. 305, 105 P. 471; State v. Houston (Neb.), 143 N.W. 796; Barnes v. Mayor of Chicopee, 213 Mass. 1, 99 N.E. 464; Boone v. State, 170 Ala. 57, Ann. Cas. 1912C, 1065, 54 So. 109; Mayor etc. v. State (Miss.), 59 So. 873; Salter v. Burk, 83 N.J.L. 152, 83 A. 973; Bonner v. Belsterling (Tex. Civ. App.), 137 S.W. 1154; Graham v. Roberts, 200 Mass. 152, 85 N.E. 1009; Cole v. Tucker, 164 Mass. 486, 41 N.E. 681, 29 L. R. A. 668.)

From the foregoing authorities it appears that even in the face of the general declaration in the various commission form government acts that the remedy shall be cumulative, the courts lean strongly toward the doctrine of permitting municipalities to control their own local affairs, and that the remedy of ouster by summary proceedings relates only to state and constitutional officers, or at least to officials violating some duty imposed upon them by a state law instead of a city ordinance. (Kessler v. Fritchman, 21 Idaho 30, 119 P. 692.)

There is no provision in the Black law or under the general law governing cities and villages imposing any duty whatever upon the mayor or city council to enforce the provisions of any state law relative to bawdy-houses or the sale of intoxicating liquors. The court must not only have jurisdiction of the person, but of the subject matter. (Wayne v. Alspach, 20 Idaho 144, 116 P. 1033.)

The Black law or some other statutory provision must prohibit within its own terms the existence of bawdy-houses and the illegal sale of liquor in Boise City, and then impose upon the mayor and the city council the duty to enforce the state enactment before the mayor could be chargeable with neglect of duty arising under a state law. (Corker v. Pence, 12 Idaho 152, 85 P. 388.)

Courts will never construe a statute beyond its plain terms so as to bring one within the statute and subject him to a penalty if the law is not such that he is clearly brought within the letter as well as the spirit of the law. (Sutherland, Stat. Const., sec. 356; Independent School Dist. v. Collins, 15 Idaho 535, 128 Am. St. 76, 98 P. 857.)

The subject of removal of all officers is within legislative control, and where that body prescribes a manner and method of removal, it is exclusive. (State ex rel. Brandt, Mayor, v. Thompson, 91 Minn. 279, 97 N.W. 887.)

S. L. Tipton, for Defendants.

The recall under the Black law and the removal of an officer under sec. 7459 are cumulative remedies. (Chicago, N.W. Ry. Co. v. City of Chicago, 148 Ill. 141, 35 N.E. 881; Conwell v. Village of Culdesac, 13 Idaho 575, 92 P. 535; Dawson v. Superior Court, 158 Cal. 73, 110 P. 479; State ex rel. Young v. Robinson, 101 Minn. 277, 112 N.W. 269, 20 L. R. A., N. S., 1127.)

The state law applies to all cities as well as cities operating under special charters. (In re Ridenbaugh, 5 Idaho 371, 49 P. 12; Coffey v. Superior Court, 147 Cal. 525, 82 P. 75; State v. City of Noblesville, 157 Ind. 31, 60 N.E. 704; Dawson v. Superior Court, supra; State v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 P. 1103; Hilzinger v. Gillman, 56 Wash. 228, 105 P. 471, 21 Ann. Cas. 305.)

"Where a new act is couched in general affirmative language and the previous law can well stand without it, and if the language used in the latter act is all in the affirmative language, there is nothing to say that the previous law shall be repealed, and therefore the old and the new law shall stand together." (Black, Interpretation of Laws, 2d ed., 352.)

"Where the design is to give additional protection to a subsisting right and a remedy is provided for its invasion which is not necessarily exclusive of all others, it is considered merely cumulative and the party injured may resort to it or to the means previously...