Kessler v. Fritchman

• Citation: 21 Idaho 30,119 P. 692
• Parties: HARRY S. KESSLER, Plaintiff, v. HARRY K. FRITCHMAN, Mayor of Boise City, Idaho, Defendant
• Decision Date: 23 December 1911
• Court: Idaho Supreme Court

119 P. 692

21 Idaho 30

HARRY S. KESSLER, Plaintiff, v. HARRY K. FRITCHMAN, Mayor of Boise City, Idaho, Defendant

Supreme Court of Idaho

December 23, 1911

CITIES-CHANGING FORM OF GOVERNMENT-GENERAL ELECTIONS-CONSTITUTION-CONSTRUCTION-SPECIAL ELECTIONS-TITLE OF ACT-CLASSIFICATION OF CITIES.

(Syllabus by the court.)

1 Secs. 1 and 2 of the act of March 13, 1911 (Sess. Laws 1911 p. 280), are not in conflict with sec. 1, art. 12, of the constitution of this state.

2. The words "general election" as generally used in constitutions and statutes have reference to general elections held for the purpose of electing state and county officers.

3. The words "general election" as used in sec. 1 of art 12 of the constitution mean that the general election should be a general election for the purpose of changing the form of government, at which the people having the general qualifications of electors to vote should have a free and open opportunity of expressing themselves upon the questions submitted, and that such qualification should not be limited to any special qualification, and does not mean that such election shall be at the time of a general election under either the general election laws of the state or the municipality holding such election.

4. Special charters issued to cities by the territorial legislature prior to the adoption of the constitution of this state can only be amended by special acts of the legislature and the general laws relating to purely municipal affairs of local concern to the government of cities do not apply to those cities operating under special charters without the consent of the electors of such municipality.

5. Sec 1, art. 12 of the constitution reserves the right to the people of a city organized under special charter issued prior to the adoption of the constitution to change the form of government by vote of a majority of the electors at an election held for such purpose.

6. The act of March 13, 1911, is a general law of the state, but it in no way changes or alters or amends the powers of cities previously organized either under a special charter or the general laws, unless such law is adopted by the electors of such cities and approved as the form of government for such cities.

7. Under the provisions of sec. 3 of the act of March 13, 1911, whenever a change of form of government is made from that under a special charter or from an organization under the general laws to the new form of government provided by said act, the provisions of the act are made to apply alike to all such cities making such change, under the classification made by the act.

8. The title of the act of March 13, 1911, "Providing a form of government for cities of the state of Idaho now or hereafter having a population of two thousand five hundred or over; providing that any such city may become organized under the provisions of this act through the adoption thereof by special election, and providing the procedure therefor; providing for the holding of general and special municipal elections; prescribing the powers and duties of officials under this act; providing for the recall of elective officials; providing for the initiation of legislation by the people and for the submission of measures and ordinances to a vote of the electors of cities adopting the provisions of this act, and prescribing the procedure therefor; providing for granting of franchises and making of contracts and providing other powers, functions, rights and privileges usually exercised by cities of like character and degree; providing a method whereby any city adopting the provisions of this act may discontinue the same after a certain time; providing that nothing in this act shall be construed as repealing or modifying any existing general laws governing such cities unless such general laws are inconsistent with the provisions of this act,.... " is sufficient, and states the general subject to be treated by the act, to wit, a form of government for cities, and thereafter specifies the particular measures and methods embraced within the same, carrying out the general purpose and objects of the act. There is nothing in the statute which could in any way mislead the legislature in passing the same or which could mislead the people as to the intent and purpose of the legislature in enacting such law, and it does not violate sec. 3, art. 16 of the constitution.

9. The act of March 13, 1911, is not special or class legislation and is not in violation of sec. 19, art. 3 of the constitution, but by its provisions classifies the cities of the state as clearly authorized under the provisions of sec. 1, art. 12 of the constitution, and this section in no way limits the power of the legislature in enacting a general law providing for the organization of cities under a commission form of government, and that such form of government may be adopted by the cities of the state having a population of two thousand five hundred or more by a majority vote at an election held for that purpose.

10. Held, by Stewart, C. J., under the classification of cities made by the act of March 13, 1911, the legislature intended to make a classification according to population, and that all cities, towns or villages having a population of two thousand five hundred or more might be organized under the new form of government, while cities, towns or villages having less than two thousand five hundred population should remain as cities, towns or villages under the general laws under which they were organized, or special charters, as the case might be, until such time as they became organized under said act.

(AILSHIE, J., reserves his opinion on this paragraph.)

(SULLIVAN, J., dissents.)

An original application for writ of mandate. Writ ordered to issue.

Writ of mandate allowed. Costs awarded to plaintiff.

Charles F. Reddoch, John F. Nugent, and Gustave Kroeger, for Plaintiff, and Harry S. Kessler, pro se.

The word "election" has two distinct meanings. The Standard Dictionary states them as follows:

"Election--1. The act or proceeding of selecting a person or persons for office or employment, especially by voting by ballot or otherwise.

"2. A popular vote on a question of public policy or interest, as a local option election."

See, also, Webster's Dictionary; Black's Law Dictionary; 10 Am. & Eng. Ency. of Law, 562; 15 Cyc. 258.

It is self-evident that the word as used in sec. 1, art. 12, of the constitution, refers to voting on the public question involved, as distinguished from the election of officers. It means a popular vote to determine the form of city government, and has nothing whatever to do with the election of any officers either for the city, precinct, county, state or nation. The word "general" must be construed in connection with the particular meaning given the word "election." (See Standard Dictionary; Black's Law Dictionary; Webster's Dictionary; 14 Am. & Eng. Ency. of Law, 948.)

The framers of our constitution meant the question should be open or available to all of the electors, as distinguished from any special class, such as taxpayers, or from any other arbitrary division of the voters, rather than that the time of the election should be fixed at the biennial November election. (State v. Tausick (Wash.), 116 P. 651; State v. Steunenberg, 5 Idaho 1, 45 P. 462; Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234; Boise City Nat. Bank v. Boise City, 15 Idaho 792, 100 P. 93.)

Sec. 1, art. 12, of our constitution was probably copied from the constitution of California as it then existed, and it is almost identical with a section of the Washington constitution. (Ruggles v. Board of Trustees, 88 Cal. 430, 26 P. 520; People v. Town of Berkeley, 102 Cal. 298, 36 P. 591, 23 L. R. A. 838.)

The courts will not declare an act of the legislature void and inoperative unless it appears unconstitutional beyond all reasonable doubt, and where two meanings can be given to a word or phrase, that meaning will be given which will give effect to the legislative intent. (Wooley v. Watkins, 2 Idaho 590 (555), 22 P. 102; Ogden v. Saunders, 12 Wheat. (U.S.) 213, 6 L.Ed. 606; Doan v. Board of Commrs., 2 Idaho 781, 3 Idaho 38, 26 P. 167; Sabin v. Curtis, 3 Idaho 662, 32 P. 1130; Gillesby v. Board of Commrs., 17 Idaho 586, 107 P. 71.)

Special charters are not specifically mentioned in the title, but the language there used must necessarily and does include special charter cities. (State v. Doherty, 3 Idaho 384, 29 P. 855; Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234; State v. Dolan, 13 Idaho 693, 92 P. 995, 14 L. R. A., N. S., 1259.)

P. E. Cavaney, City Attorney, and Alfred A. Fraser, for Defendant.

At the time of the adoption of the constitution the election known as the "general election" was defined in secs. 465, 466, Rev. Stats., said sections being set forth in the opinion of this court in the case of Doan v. Board of Commissioners, 2 Idaho 781, 3 Idaho 38, 26 P. 167, in which the court has defined the term "general election" as the same is used in the constitution. (Westinghausen v. People, 44 Mich. 265, 6 N.W. 641; State v. Tausick (Wash.), 116 P. 651.)

The term "general election," when used in statutes, refers to the election required to be held on the Tuesday succeeding the first Monday of November in each year. (State v. Cobb, 2 Kan. 32; Bond v. White, 8 Kan. 333; McIntyre v. Iliff, 64 Kan. 747, 68 P. 633.)

When a constitution commands how a right may be exercised it prohibits the exercise of that right in some other way. (Cooley Const. Lim. 64; Town of Williamsport v. Kent, 14 Ind. 306; Evansville v. State, 118 Ind. 426, 21 N.E. 267, 4 L. R. A. 93; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 272.)

The special charter of Boise City cannot be...