Perrault v. Robinson

• Court: Idaho Supreme Court
• Writing for the Court: MORGAN, J.
• Citation: Perrault v. Robinson, 29 Idaho 267, 158 P. 1074 (Idaho 1916)
• Decision Date: 29 June 1916
• Parties: JOSEPH PERRAULT, Appellant, v. JEREMIAH W. ROBINSON, Mayor, JOHN A. DAVIS, EDWIN HERRINGTON, A. V. EICHELBERGER and THOMAS FINEGAN, Members of Council of Boise City, Idaho, Respondents

158 P. 1074

29 Idaho 267

JOSEPH PERRAULT, Appellant, v. JEREMIAH W. ROBINSON, Mayor, JOHN A. DAVIS, EDWIN HERRINGTON, A. V. EICHELBERGER and THOMAS FINEGAN, Members of Council of Boise City, Idaho, Respondents

Supreme Court of Idaho

June 29, 1916

COMMISSION FORM OF GOVERNMENT-DIRECT LEGISLATION-ELECTIONS-WRIT OF PROHIBITION-STATUTORY CONSTRUCTION.

1. The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal corporation, board or person when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. As mandamus will compel the holding of a legal, authorized, valid election when wrongfully refused, prohibition, its counterpart, will prevent the holding of an illegal, unauthorized, invalid one at the suit of a taxpayer who would be injured by the useless expense incident to holding it.

2. Statutes enacted at the same session of the legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. They are to be construed together and should be so construed, if possible, as to harmonize and give force and effect to each. If, however, they are necessarily inconsistent, the statute which deals with the common subject matter in a more minute and particular way will prevail over that of a more general nature.

3. When a proper petition, bearing the requisite number of signatures of qualified electors, is presented to the council or board of trustees of any city or village in Idaho, regardless of its form of government, requesting that theaters or moving picture shows may be opened and operated on Sunday, such council or board of trustees has power to grant the relief prayed for, and, having granted it by the passage of an appropriate ordinance, the referendum provision of the commission form of government law does not apply thereto.

[As to writ of prohibition and when it lies, see notes in 12 Am.Dec 604; 18 Am.Dec. 238; 111 Am.St. 929]

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.

Appeal from judgment sustaining demurrer to and dismissing application for writ of prohibition. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellant.

Charles F. Reddoch, for Appellant.

Under the provisions of sec. 6825, Rev. Codes, as amended, the city council could not of its own volition, in the absence of the proper petition, enact an ordinance allowing the opening of picture shows. Therefore, Ordinance No. 1192 is one which could not under the provisions of the Black Law be initiated by the people, as the legislature has not given the city or the people any right so to do, but has vested this matter solely and exclusively with the council, and it is the only power which can or has the right to determine the matter.

The courts uniformly hold that where a power is expressly conferred upon the council or board of trustees, as distinguished from the city, the referendum has no application. (Hartig v. City of Seattle, 53 Wash 432, 102 P. 408; Long v. City of Portland, 53 Ore. 92, 98 P. 149, 1111; State ex rel. Walker v. Superior Court, 87 Wash. 582, 152 P. 11.)

The Black Law and amended sec. 6825, Rev. Codes, were passed at the same session of the legislature, the former being approved March 13th and the latter Feb. 15, 1911, and the rule of construction that acts passed at the same session shall be given force and effect if possible applies. (1 Lewis' Sutherland on Stat. Const., sec. 268, p. 513; Peavy v. McCombs, 26 Idaho 143, 140 P. 965.)

"Where there is a special statute relating to a particular subject, the special statute will control even as against a general statute of a later date." (Lawyer v. Carpenter, 80 Ark. 411, 97 S.W. 662; Boise City Nat. Bank v. Boise City, 15 Idaho 792, 100 P. 93.)

If it can be contended that the referendum applies in this instance, then it has the force and effect of suspending the operation of a state statute of state-wide application. ( In re Ridenbaugh, 5 Idaho 371, 49 P. 12.) The writ of prohibition will lie against the respondents in this action. (Bellevue Water Co. v. Stockslager, 4 Idaho 636, 43 P. 568; Baker v. Gooding County, 25 Idaho 506, 138 P. 342.)

"A public board acting in a quasi-judicial character becomes an inferior tribunal amenable to the writ whenever it exceeds its authority or exercises an authority which it does not possess." (32 Cyc. 601; Prairie Oil etc. Co. v. Cruce, 45 Okla. 774, 147 P. 152; St. Louis & S. F. R. Co. v. Love, 29 Okla. 523, 118 P. 259; State ex rel. Cain v. Toomey, 27 S.D. 37, Ann. Cas. 1913D, 324, 129 N.W. 563; Speed v. Common Council of Detroit, 98 Mich. 360, 39 Am. St. 555, 57 N.W. 406, 22 L. R. A. 842.)

J. P. Pope, City Atty., H. E. McElroy, T. J. Jones, Frank Martin, Ross W. Bates and Harry S. Kessler, for Respondents.

The court, at the suit of a taxpayer, has no power by a writ of prohibition to restrain a city council from calling a referendum election. The law firmly establishes the rule that the act of calling an election is a political act, and is beyond the jurisdiction of the courts to restrain. ( Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465; Thompson v. Mahoney, 136 Ill.App. 403; Guebelle v. Epley, 1 Colo. App. 199, 28 P. 89; Meacham v. Young, 115 Ky. 246, 72 S.W. 1092, 1094; City of Dallas v. Dallas Consolidated St. R. Co., 105 Tex. 337, 148 S.W. 292; State ex rel. Topping v. Houston, 94 Neb. 445, 143 N.W. 796, 50 L. R. A., N. S., 227; State v. Osborn, 16 Ariz. 247, 143 P. 117; City Council of McAlester v. Milwee, 31 Okla. 620, 122 P. 173, 40 L. R. A., N. S., 576; People ex rel. Fitnam v. Galesburg, 48 Ill. 485; Walton v. Develing, 61 Ill. 201; Darst v. People, 62 Ill. 306; Harris v. Schryock, 82 Ill. 119; Shoemaker v. Des Moines, 129 Iowa 244, 105 N.W. 520, 3 L. R. A., N. S., 382.)

The writ of prohibition lies to restrain only judicial acts of a court or inferior tribunals; legislative, executive or administrative acts of such bodies cannot be enjoined by such a writ.

"The writ of prohibition authorized by the constitution of Idaho is the common-law writ." (Stein v. Morrison, 9 Idaho 426, 75 P. 246.)

The office of the common-law writ of prohibition is to prevent courts or inferior tribunals from exercising unauthorized judicial powers. (Spelling on Injunctions and Other Extraordinary Remedies, sec. 1722; State v. Clark County Court Justices, 41 Mo. 44; High on Extraordinary Legal Remedies, sec. 1769.)

The proceedings to be prohibited must be of a judicial character. (Shortt on Extraordinary Remedies (Heard), p. 491.)

"Prohibition will not issue to a tribunal strictly legislative in its functions." (Spring Valley Water Works v. Bartlett, 63 Cal. 245.)

The writ of prohibition lies only in case there has been abuse or usurpation of judicial functions. (Mann v. Mercer County Court, 58 W.Va. 651, 52 S.E. 776.)

The scope of the referendum provision of the Black Law is clearly indicated in the case of Swain v. Fritchman, 21 Idaho 783, 125 P. 319.

MORGAN, J. Sullivan, C. J., concurs. BUDGE, J., Dissenting.

OPINION

MORGAN, J.

This action was commenced by appellant, who is a resident and taxpayer of the city of Boise, for the purpose of procuring a writ of prohibition to be issued to prevent respondents, who are the mayor and members of the city council of that city, from submitting to a referendum vote a certain ordinance numbered 1192.

It appears from the application for the writ that on February 15, 1916, a petition was presented to the city council containing 3,814 names, among which were the signatures of a number of the qualified electors of the city equal to more than a majority of all the votes cast at the last preceding general election held therein, requesting that moving picture shows be permitted to be kept open and operated on Sunday; that thereafter and on March 14, 1916, the council granted the request and passed Ordinance No. 1192, providing therein that it was to take effect ten days after its approval by the mayor; that it was thereupon approved by the mayor and was duly published in the official newspaper in its issue of March 15, 1916; that after the passage of the ordinance a petition was filed with the city clerk, protesting against its enactment, containing 1,786 names, among which were the signatures of qualified electors sufficient in number to meet the requirements of sec. 25, chap. 82, Sess. Laws 1911 (p. 280), which authorizes a referendum vote to be had and a special election to be called and held for the purpose of determining whether or not an ordinance passed by the council and approved by the mayor shall become operative, and that the council, or a majority of its members, have announced their intention to call a special election and to submit said ordinance to such a vote, and that they threaten to and will do so unless restrained and prohibited from so doing; also that the cost of such an election will be approximately $ 1,000, which will be an illegal and improper charge against appellant and all other taxpayers of the city, and that appellant has no plain, speedy or adequate remedy at law.

Respondents filed a demurrer to the application, which was sustained and, appellant declining to amend, judgment of dismissal of the action was entered. This appeal is from the judgment.

At the outset of the consideration of this case we are confronted with the objection that courts are without jurisdiction to prevent an election; that an election is the exercise of political power by the sovereign people which must not be interfered with, and that the remedy against one improperly or illegally...