In re Ridenbaugh

• Decision Date: 02 June 1897
• Parties: IN RE RIDENBAUGH
• Court: Idaho Supreme Court

49 P. 12

5 Idaho 371

IN RE RIDENBAUGH

Supreme Court of Idaho

June 2, 1897

MUNICIPAL ORDINANCES-CONSTITUTIONAL PROHIBITIONS.-Section 2, article 12, of the constitution, prohibits municipal ordinances in conflict with the general laws of the state.

CHARTER OF BOISE CITY-ORDINANCES UNDER.-The charter of Boise City and amendments thereto, authorize only such ordinances as are in harmony with the general laws of the state.

(Syllabus by the court.)

Original proceeding in supreme court. Petition for habeas corpus.

Alfred A. Fraser, for Petitioner.

The decision of this case depends entirely upon the provisions of the constitution and laws of this state, and the following are the provisions of the constitution to be construed by the court as throwing light on the question and showing the intention of the legislature in regard to Boise City charter. Article 11, section 2: "No charter of incorporation shall be granted, extended, changed or amended by special law, except for such municipal . . . . as are or may be under the control of the state. The above provision gives the legislature the right to pass a special law for a municipal corporation." (Carpenter v. People, 5 P. 828.) Article 12, section 1: "Cities and towns heretofore incorporated may become organized under such general laws whenever a majority of the electors at a general election shall so determine, under such provision therefor as may be made by the legislature." Article 21, section 1 "That no inconvenience may arise from a change of the territorial government to a permanent state government it is declared that all writs . . . . and rights of individuals and bodies corporate shall continue as if no change had taken place in this government." The charter of Boise City which authorizes the city council to license gambling, was in full force and effect when the constitution was adopted; it has not expired by its own limitation, and if repealed at all, it must be by virtue of the gambling law passed by the last legislature. The ordinance under which the license was issued in this case was passed under the old charter, and at the time of its passage it was not in conflict with any provision of the constitution, any state law or the city charter, and as an indication of the intention of the legislature, they, by a law four days the junior of the gambling law, again recognized the right of the city council to license gambling. (I refer to the amendment of the charter of Boise City.) As to what effect the amendment of the charter of Boise City had no ordinances passed under the old charter I refer the court to Chamberlain v. City of Evansville, 77 Ind. 543; In re Hall, 10 Neb. 537, 7 N.W. 287, a case in point. Therefore the only question in this case is, Did the gambling law, being a general law, repeal the provision of the city charter in conflict with it? We believe that under the authorities this question must be answered in the negative. (See Wood v. Board of Commrs., 58 Cal. 561; State v. Clark, 54 Mo. 17, 14 Am. Rep. 471; Davis v. State, 2 Tex. App. 425; Cunningham v. People, 1 Colo. App. 155, 27 P. 949; Territory v. McPherson, 6 Dak. 27, 50 N.W. 351; State v. Morristown, 33 N. J. L. 57; Mullin v. Noe, 3 Ired. 493; People ex rel Dean v. Commrs. Grand Co. 6 Colo. 202.)

Attorney General McFarland, for the State.

No brief filed.

SULLIVAN, C. J. Huston and Quarles, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an application for a writ of habeas corpus. The petitioner was convicted of the crime of conducting the gambling game of "faro," in Boise City, Idaho under the provisions of an act entitled "An act to prohibit gambling, and to provide for the punishment thereof, and for other purposes," approved March 8, 1897. (Sess. Laws 1897, p. 53.) On the trial the petitioner relied on a license procured from the corporate authorities of Boise City. After the state had proved that the defendant had been conducting said gambling game, the defendant offered to introduce in evidence license numbered 225 of said city, which is as follows:

"BOISE CITY LICENSE.

"No. 225.

"Granted May 8, 1897, State of Idaho.

"Expires Aug. 7, 1897.

"This license is granted to Thomas Constance for faro, in Boise City, Ada county, state of Idaho having paid the city clerk the sum of fifty dollars for one-quarter thereof, conformably with the laws of said state ordinance No. 155 of Boise City, passed and approved January 7, 1895.

(Signed) "H. E. NEAL,

"City Treasurer.

(Countersigned) "ARCH CUNNINGHAM,

"City Clerk."

--as his justification for concluding said gambling game. The court rejected said offered evidence as immaterial and no justification, to which ruling the defendant then and there duly excepted. The defendant then offered in evidence ordinance No. 155 of said city, which is entitled "An ordinance licensing banking games at cards and the game known as 'American Tan," which proffered evidence was rejected by the court, for the reason that it was immaterial and no justification. Said ordinance is as follows: "Section 1. There shall be levied and collected by the city auditor, as tax collector, licenses as follows: Sec. 2. From each and every person who keeps or runs, or in whose saloon, house or place of business is kept or run, in Boise City, Idaho any faro, monte, American tan or twenty-one game, or any other banking game or games at cards, dice or other device, must pay a license of fifty dollars per quarter, or any less time, for each and every game," approved January 7, 1895. Said ordinance contains two other sections, not necessary to be set forth here. The defendant then offered in evidence an act of the state legislature entitled "An act to amend sections 3, 5 and 11 of an act incorporating the city of Boise," approved January 11, 1866, being sections 130, 132 and 138 of the Special and Local Laws of Idaho. Said first-mentioned act was approved March 12, 1897. The particular part of said act offered in evidence is as follows: "The mayor and common council shall have full power and authority within Boise City . . . . to regulate and restrain, in their discretion, upon special application, to license and tax: . . . . Gaming and gambling houses." The court rejected said offered act as immaterial, to which the defendant excepted. The defendant then rested. Thereupon the cause was adjourned to the following day, and the court on that day found the defendant guilty as charged in the information, and sentenced him to pay a fine of $ 200, and, in default of payment thereof, to be confined in the county jail one day for each two dollars of said fine. The fine not being paid, the defendant was thereupon confined in the county jail. He thereafter made application to be released on habeas corpus.

It is conceded by counsel that the decision of this case depends upon the provisions of the constitution and laws of this commonwealth. The city of Boise was incorporated by a special act of the legislature, approved January 11, 1866. (See Idaho Special and Local Laws, 1863-87, p. 22.) By the fourth subdivision of section 5 of said act, the mayor and common council are empowered to license gambling-houses. By the thirtieth subdivision of said section 5, the city council is empowered to make all needful by-laws, ordinances and regulations not repugnant to the constitution and the laws of the United States, or of this state. The...