State v. Clark

Citation88 Idaho 365,399 P.2d 955
Decision Date12 March 1965
Docket NumberNo. 9468,9468
PartiesSTATE of idaho, Plaintiff-Respondent, v. Floyd L. CLARK, Defendant-Appellant.
CourtUnited States State Supreme Court of Idaho

Roberts & Poole, Boise, for appellant.

Allan G. Shepard, Atty. Gen., Thomas G. Nelson, Asst. Atty. Gen., Robert M. Turnbow, Sp. Asst. Atty. Gen., and Martin V. Huff, Pros. Atty., Ada County, Boise, for respondent.

KNUDSON, Justice.

This is a criminal action prosecuted by respondent, State of Idaho, under an amended complaint charging appellant, Floyd L. Clark, with violation of the Ada County Subdivision Ordinance hereinafter referred to as the 'Ordinance'.

The complaint in substance charges that from and after September 22, 1961, until the dates hereinafter mentioned, appellant and his wife were the owners of a tract of land 160' X 126.62' in Lot 6 of Ramkin Tract, situate within the unincorporated territory of Ada County, Idaho; that on or about April 3, 1962, appellant sold and transferred a portion of said tract, being 50' X 126.62' to Glenna R. Shannahan; that thereafter and on April 27, 1962, appellant unlawfully subdivided another portion of the first above described tract by selling and transferring therefrom a tract 50' X 126.62' to one Robert E. Phillips and wife; that appellant's said action in subdividing his said land into two or more lots or parcels within an interval of six months for the purpose of transfer of ownership or building development, without submitting plans of such subdivision to the Ada County Zoning Commission for approval constituted a violation of said Ordinance and that appellant is punishable as provided therein.

The facts are not in dispute. Appellant filed demurrer to the complaint and pursuant to stipulation of the parties the case was submitted to the trial court on questions of law. The court found appellant guilty of a violation of said Ordinance and entered judgment assessing a fine in the amount of $75 and costs. This appeal is taken from said judgment on questions of law.

Appellant specifies two assignments of error: (1) that the district court erred in overruling appellant's demurrer to the amended complaint which challenges the sufficiency of the complaint on the ground that the facts stated therein did not constitute a public offense; (2) that the district court erred in entering the judgment of conviction.

The Ordinance involved was adopted by the Chairman and Board of County Commissioners of Ada County, Idaho and declared to be in effect on September 28, 1958. It generally contains regulations relating to the subdivision of lands within the unincorporated area of Ada County. The Ordinance specifically provides definitions, rules and regulations for the approval of plats, subdivisions, or dedications; prescribes standards for the design, layout and development thereof; requires certain improvements; provides procedure for the approval or disapproval thereof; provides for the granting of variations and exceptions thereto; provides for a penalty for the violation thereof and for appeal.

Appellant contends that the amended complaint is defective in that it fails to allege facts constituting a subdivision of appellant's land in accordance with the definition of a subdivision as contained in the Ordinance involved. He argues that 'the only acts of appellant complained of are that he sold two separate parcels of the same piece of property.' This contention is without merit. Section 3.21 of the Ordinance defines 'subdivision' as 'the division of a parcel of land into three (3) or more lots or parcels for the purpose of transfer of ownership or building development, or * * *.' The amended complaint, after describing the two parcels involved, alleges the sale thereof by appellant 'within an interval of six months, for the purpose of transfer of ownership or building development' without any attempt being made by appellant to comply with said Ordinance.

One of appellant's principal contentions is that the Ordinance is unconstitutional for the reason that the County Commissioners have made an improper delegation of legislative authority to an administrative board and commission. Appellant specifically refers to sections 4.12 and 4.341 of the Ordinance as instances of the improper delegation by the Board of County Commissioners of its legislative functions. Section 4.12 provides:

'4.12 Within ten (10) days, the Administrator shall inform the subdivider that the proposed plan and data as submitted or as modified do or do not meet the objectives of these regulations. When the Administrator finds the plans and data do not meet the objectives of these regulations, he shall submit in writing his reasons therefor.'

Appellant argues that under this provision discretionary power is delegated to an administrator to determine the objective of the Ordinance and what shall and shall not constitute a compliance with the law, and does not set forth sufficient standards to guide the administrator in making his determination. Such contention is not well founded for the reason that the general objectives sought by the Ordinance are stated with clarity in its preliminary recitals and that design standards for plans and plats, subdivision, street and utility improvements, etc., are specified in substantial detail.

Appellant contends that section 4.341 of the Ordinance leaves approval of the property owner's plans to the whimsical power of unidentified officials or at the mercy of 'administrative officials'. Said section provides:

'4.341 Within the said Forty-five (45) days prior the Commission shall also secure the approval and signatures of such other officials as prescribed by law prior to filing the final plat for recording; or in the event such official deems fit to disapprove said plat, the Commission shall secure or attempt to secure a written statement from the official as to the reasons for disapproval and shall pass copies of such statement to the Subdivider.'

Concerning this contention the trial court correctly observed that appellant overlooks the modifying phrase 'as prescribed by law'. From the language used it is clear that the approval of only those officials whose duty it is to examine a plan or plat before it is recorded, is required. In this connection attention is called to I.C. § 50-2503A, which requires that all plats, or deeds dedicating land to a public use, affecting land situate within one mile outside of the limits of any incorporated city or village, shall be approved by the council or trustees of such city or village before the same may be recorded.

Cases involving challenges of unlawful delegation of legislative authority have been considered by this court a number of times. In State v. Heitz, 72 Idaho 107, 238 P.2d 439, this court stated:

'A legislature, or other law-making body, in enacting a law complete in itself, designed to accomplish the regulation of particular matters falling within its jurisdiction may expressly authorize an administrative commission (in this case the Commissioner of Public Works) within definite limits, to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose, * * *.'

See also State v. Taylor, 58 Idaho 656, 78 P.2d 125; Howard v. Missman, 81 Idaho 82, 337 P.2d 592. We are satisfied that the Ordinance does not improperly delegate legislative power to any person or body. Nor do we agree with appellant's contention that said section is ambiguous or uncertain.

Another of appellant's principal contentions is that by adopting the subject Ordinance, the Ada County Board of Commissioners acted in excess of the authority granted them by the 1957 Idaho Legislature and said Ordinance is ultra vires and void. Appellant predicates his argument upon the assumption that no authority existed prior to the enactment of I. C. Title 31 Chap. 38 (being Chap. 225 of the Idaho Session Laws 1957) enabling a county of this state to enact regulations covering either the zoning or subdivision of lands within the unincorporated area of such county.

Appellant presented a similar contention to the trial court in support of his demurrer. However, the court did not discuss the authority conferred by such legislation and concurred in the view expressed by respondent that counties in this state need not and do not rely solely upon the legislature for authority to enact such regulations under the police power; that this authority is found in the constitution of this state and in the absence of a definite conflict with the general laws such regulations are fully authorized. The provision referred to is Idaho Constitution, Art. 12, Sec. 2, which provides:

'Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.'

This constitutional provision was considered by this court in State v. Musser, 67 Idaho 214, 176 P.2d 199, wherein it is stated:

'Under the above constitutional provision counties, cities and towns have full power in affairs of local government notwithstanding general laws of the state defining and punishing the same offense. Session Laws, 1939, chap. 215, sec. 6, p. 441; McQuillan Mun. Corp., 2d Ed., sec. 795, p. 962; City of Delta v. Charlesworth, 64 Colo. 216, 170 P. 965; State v. Quong [8 Idaho 191, 67 P. 491], supra; Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353; State v. Robbins, 59 Idaho 279, 81 P.2d 1078; State v. Hart 157 P.2d 72; Clark v. Alloway 170 P.2d 425; People v. Velarde, 45 Cal.App. 520, 188 P. 59.

'In 14 Cal.Jur. sec. 8, p. 726, referring to a constitutional provision practically identical with Article 12, section 2, supra, it is stated: 'This power, vested by direct grant, is as broad as that vested in the legislature itself, subject to two exceptions: it must be local to the county or municipality and must not conflict...

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