Kerley v. Wetherell, 6679

• Decision Date: 20 November 1939
• Docket Number: 6679
• Citation: 61 Idaho 31,96 P.2d 503
• Parties: S. O. KERLEY, Respondent, v. R. M. WETHERELL, City Clerk of Boise City, Idaho, a Municipal Corporation, Appellant, and BOISE WATER CORPORATION, a Corporation, Intervenor and Appellant
• Court: Idaho Supreme Court

96 P.2d 503

61 Idaho 31

S. O. KERLEY, Respondent, v. R. M. WETHERELL, City Clerk of Boise City, Idaho, a Municipal Corporation, Appellant, and BOISE WATER CORPORATION, a Corporation, Intervenor and Appellant

No. 6679

Supreme Court of Idaho

November 20, 1939

MUNICIPAL CORPORATIONS-ORDINANCES-REFERENDUM PETITION-STATUTES-BOISE CITY CHARTER-SIGNERS OF PETITION-QUALIFICATION-WITHDRAWAL OF NAMES-CERTIFICATION OF PETITION-MANDAMUS-PARTIES IN INTERVENTION.

1. The statute providing for intervention should be liberally construed. (I. C. A., sec. 5-322.)

2. In proceeding for writ of mandate to compel city clerk of Boise to certify to council number of names on petition for referendum on ordinance granting franchise to private company to operate water system and number of votes cast for mayor at last preceding general municipal election, private company has such an interest in the matter in litigation as entitled it to intervene. (I. C. A., sec. 5-322; Loc. and Spec. Laws 1927, chap. 1, sec. 16a, subd. (7).)

3. The statute relating to initiative and referendum for municipalities organized under the commission form of government plan have no application to a specially chartered city, such as Boise City. (I. C. A., secs. 49-3301 to 49-3317; Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subd (7).)

4. Under charter provisions of the city of Boise providing that petition for referendum must be signed by "qualified electors" and directing city clerk to examine and from the voters registered ascertain whether petition is signed by the requisite number of "qualified electors," a "qualified elector" is an elector of Boise City and one that is registered as such. (Loc. and Spec. Laws 1927, chap. 1, sec. 16a, subd. (7).)

5. Words and phrases in a statute are construed according to context.

6. Other portions of same act may be resorted to as an aid to determine the sense in which a word, phrase, or clause is used, and such phrase, word or clause repeatedly used in a statute will be presumed to bear the same meaning throughout the statute unless there is something to show that there is a different meaning intended.

7. Under the constitutional provision empowering legislature to prescribe qualifications for the right of suffrage legislature has the power to make registration an essential element. (Const., art. 6, sec. 4.)

8. Under charter of city of Boise providing that referendum petition must be verified by at least one qualified elector only "qualified elector" who is one registered as required by law can verify such a petition and the names of signers on referendum petition not so verified cannot be counted. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subds. (3, 7).)

9. Under Boise City charter, providing that petition for referendum may be filed any time after passage of ordinance and prior to the date when the ordinance shall take effect and that upon filing of petition ordinance shall be suspended from taking effect, no referendum petition can be filed nor can any additional names be added after the date specified as the date ordinance was to go into effect. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subd. (7).)

10. Under charter provisions of city of Boise requiring petition for referendum to be filed at any time after passage of ordinance and before date when ordinance shall take effect, any signer of petition may have his name removed from the petition at any time up to the time of actual filing of the petition with the clerk, but in no event can withdrawal of name be allowed after the petition has been filed with the clerk. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subd. (7).)

11. Provision of charter of city of Boise requiring each signer of referendum petition to declare that he has read, or heard read at length, section by section, the proposed ordinance or measure thereto attached and fully understood its contents, meaning, and purpose, and requiring that petition be verified by at least one qualified elector, is designed for the purpose of requiring elector to know the substantial contents and purpose of the petition he signs and reasonable compliance with such provision is all that the law requires, but the signature of a person who falsely states that he has complied with statute cannot be counted. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subds. (2, 3).)

12. Under charter of city of Boise requiring city clerk immediately upon the filing of a petition for referendum to certify number of votes cast for mayor at last preceding general municipal election and the numbers of signers of referendum petition and present such certificate, petition, and proposed ordinance to council at its next meeting, clerk is not authorized or required to ascertain whether petition is signed by the requisite number of qualified electors. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subds. (4, 7).)

13. Under charter of city of Boise providing that upon filing of referendum petition city clerk shall certify number of votes cast for mayor at last preceding general municipal election and number of signers of such petition to council, clerk is not required or permitted to inquire regarding qualifications of signers of petition, truth or falsity of their verifications, genuineness of statement of electors that they had read and understood the ordinance, or the affidavit of the circulator to the effect that he knew that all persons whose names were signed to the petitions are qualified electors and that each signer read the proposed ordinance section by section. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subds. (4, 7).)

14. Clerk of city of Boise could not justify refusal to make required certification of the number of votes cast for mayor at last preceding election on the filing of referendum petition on ground that petition was not signed by the requisite number of qualified electors. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subds. (4, 7).)

15. In mandamus proceeding to compel city clerk to certify to council of city of Boise number of names on referendum petition and entire vote cast for mayor at last preceding general municipal election where it appeared from intervenor's amended complaint that it would be entitled in a proper proceeding to an order restraining clerk from making the certificate if the clerk had threatened to do so, trial court in sustaining demurrer to answer of clerk should not have entered peremptory writ of mandate but should have waited determination of issues raised by the amended complaint in intervention. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subd. (7).)

16. Mandamus is not a writ of right, and its issuance lies in the sound judicial discretion of the court which may refuse the writ where mandate to compel an act would be useless.

17. In mandamus proceeding to compel city clerk to certify to council of city of Boise number of names on referendum petition and entire vote cast for mayor at last preceding general municipal election where Boise City appeared to have an interest in the controversy and complete determination required its presence, trial court should order it brought into the proceedings. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subd. (7); I. C. A., sec. 5-324.)

18. In mandamus proceeding to compel clerk, pursuant to charter, to certify to council of city of Boise number of names on referendum petition and entire vote cast for mayor at last preceding general election, after certification of petition to council by clerk and after making city party to proceeding, trial court should enjoin city council from calling election until issues raised by intervenors with respect to qualifications of signers and their compliance with charter requirements are adjudicated. (Loc. and Spec. Laws, 1927, chap. 1, sec. 16a, subd. (7).)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Thomas E. Buckner, Presiding Judge.

Special proceeding for writ of mandate to compel City Clerk of Boise, Idaho, to certify to the Boise Council a referendum petition. Writ ordered issued as prayed by respondent. Judgment affirmed in part and reversed in part.

Judgment affirmed as to the City Clerk and reversed as to the intervenor, and cause remanded. No costs awarded.

C. Stanley Skiles, for Appellant R. M. Wetherell, City Clerk.

Carey Nixon and Dean Driscoll, for Appellant Boise Water Corporation.

An elector who is not registered is not qualified to sign a referendum petition because not a qualified elector under section 16a (7) Charter, Local and Special Laws 1927, page 57.

The constitutional definition of a qualified elector includes registration as an essential element thereof. (Art. 6, sec. 2. Idaho Const.; Wilson v. Bartlett, 7 Idaho 271, 62 P. 416; sec. 6-A (25) Charter, Local and Special Laws 1927, p. 55.)

Section 17 of the Charter itself (p. 64 of the 1907 Laws) makes registration part of the qualification of an elector of Boise City. (Art. 6, sec. 4, Idaho Const. ; Fisher v. Masters, 59 Idaho 366, 83 P.2d 212; sec. 17, Charter, 1907 Laws, p. 64; sec. 6-A (25), (27) Charter, Local and Special Laws 1927, p. 55; secs. 49-124, 49-1504, 49-1511, 33-910 and 33-913, I. C. A.)

The requirement of subdivision (4) of section 16a of the Charter that the signers of initiative petitions be registered is by reference made applicable to referendum petitions. Sec. 16a. (1) to (7), inclusive, Charter, Local and Special Laws 1927, pp. 56-58; secs. 4234 to 4241, inclusive, Compiled Statutes 1919, 4242; Gillesby v. Board of County Commrs., 17 Idaho 586, 107 P. 71.)

The signers of a referendum petition may withdraw therefrom at any time before it is finally acted upon. (Lippincott v Carpenter, 22 Idaho 675, 127 P. 557; McQueen v. Moscow, 28 Idaho 146, ...