Swain v. Fritchman

• Citation: 21 Idaho 783,125 P. 319
• Parties: A. J. SWAIN, Appellant, v. HARRY K. FRITCHMAN, Mayor, et al., Respondents
• Decision Date: 04 May 1912
• Court: Idaho Supreme Court

125 P. 319

21 Idaho 783

A. J. SWAIN, Appellant, v. HARRY K. FRITCHMAN, Mayor, et al., Respondents

Supreme Court of Idaho

May 4, 1912

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action by plaintiff to enjoin and restrain the defendants from holding a city election. Judgment for the defendants and plaintiff appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

E. G Davis, and Richards & Haga, for Appellant.

Sec 13, art. 3 of the constitution means that each house must keep a full and complete, not a partial, journal of its proceedings. (Cohn v. Kingsley, 5 Idaho 416, 49 P 985, 38 L. R. A. 74.)

There cannot be a classification of cities under the provisions of art. 12 of the constitution, unless there shall be made applicable to cities under this classification some uniform and definite set of laws. (Ayar's Appeal, 122 Pa. 226, 16 A. 356, 2 L. R. A. 577.)

Municipalities within the new classification which the said act creates will not be governed by uniform laws, which is clearly required by the provisions of sec. 1, art. 12 of the constitution. (Ex parte Jackson, 143 Cal. 564, 77 P. 459.)

"To whatever class a law may apply, it must apply equally to each member thereof." (Johnson v. City of Milwaukee, 88 Wis. 383, 60 N.W. 270.)

"A system of municipal government in which cities of the same class may have dissimilarity in character of organization as well as different powers is not a uniform system within the meaning of the constitution." (McConihe v. State, 17 Fla. 238; People v. Cooper, 83 Ill. 585.)

Equality of privilege can constitutionally be made to depend only upon equality of population. (State v. Tausick, 64 Wash. 69, 116 P. 655.)

P. E. Cavaney, and Charles F. Reddoch, for Respondents.

This act has been before this court in the case of Kessler v. Fritchman, ante, p. 30, 119 P. 692, and all of the alleged grounds of unconstitutionality set forth by appellant in paragraphs 16 to 30, inclusive, of his complaint have been settled in that case. (See, also, State v. Tausick, 64 Wash. 69, 116 P. 651, and cases there cited.)

The unsoundness of the dicta laid down in the case of Cohn v. Kingsley has been subsequently overruled and modified in the case of Tarr v. Western Loan & Savings Co., 15 Idaho 751 (rehearing) , 99 P. 1049, 21 L. R. A., N. S., 707.

The great weight of authority as announced by the United States supreme court in Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294, and sustained by the unbroken line of English authority and the common-law rule is the law that should govern the action of a court in attempting to impeach the record of the legislative journals.

In the case of State v. Chester, 39 S.C. 307, 17 S.C. 752, the court reversed the rule, notwithstanding it had been twice declared and followed in that judiciary.

The following cases of the U.S. supreme court sustain the doctrine announced in Field v. Clark, supra: United States v. Ballin, 144 U.S. 3, 12 S.Ct. 507, 13 L.Ed. 321; Lyons v. Woods, 153 U.S. 662, 14 S.Ct. 959, 38 L.Ed. 854; Harwood v. Wentworth, 162 U.S. 558, 16 S.Ct. 890, 40 L.Ed. 1069. See, also, State ex rel. Reed v. Jones, 6 Wash. 452, 34 P. 201, 23 L. R. A. 340; De Loach v. Newton, 134 Ga. 739, 20 Ann. Cas. 342, 68 S.E. 708; Lafferty v. Huffman, 99 Ky. 80, 35 S.W. 123, 32 L. R. A. 203; Richardson v. Young, 121 Tenn. 471, 125 S.W. 664.

McCready Sykes, Amicus Curiae.

Statutory powers and duties of taxation existing at the time money is borrowed and bonds are issued by a municipal corporation cannot be substantially impaired or abrogated by the legislature. (Von Hoffman v. City of Quincy, 4 Wall. (U.S.) 535, 18 L.Ed. 403.)

Chapter 82 of the Laws of 1911 impairs the obligations of existing contracts between the city of Boise and its bondholders, for it abolishes the offices of mayor and common council without providing for new officers lawfully obligated to levy taxes to meet contract requirements; all the powers of the council under the Black Law being subject at all times to the paramount and arbitrary power of a popular "referendum." (Louisiana v. Pilsbury, 105 U.S. 278, 26 L.Ed. 1090; Mobile v. Watson, 116 U.S. 289, 305, 6 S.Ct. 398, 29 L.Ed. 620; Planters' Bank v. Sharp, 6 How. (U. S.) 327, 12 L.Ed. 458.)

"A creditor has a right to the substance of the contract as he made it. It is his privilege to judge for himself whether it is for his interest for the agreement to be discharged in the particular way stipulated or in a different mode; and neither the courts nor the legislature can change it in any substantial particular." (People v. Bond, 10 Cal. 563.)

Gustave Kroeger, H. S. Kessler, and Frank Martin, Amici Curiae, cite no authorities on points decided.

AILSHIE, J. Stewart, C. J., concurs. SULLIVAN, J., Dissenting.

OPINION

AILSHIE, J.

This action was instituted in the district court by the plaintiff as a taxpayer against the mayor and members of the common council of Boise City, to enjoin and restrain them from holding a city election under and in pursuance of a proclamation issued by the mayor on March 4, 1912, which proclamation was made in pursuance of the provisions of the act of the legislature, approved March 13, 1911 (1911 Sess. Laws, p. 280), known as the Black Law or the commission government act. The trial court denied the application, and the plaintiff has appealed.

In addition to counsel who represent the respective parties to this action, Gustave Kroeger, H. S. Kessler and Frank Martin, as amici curiae, appeared and were allowed to make oral argument and submit a brief in support of the judgment of the lower court; and McCready Sykes appeared and made argument and filed a brief as amicus curiae in behalf of the appellant.

Amici curiae have raised the point that the appellant does not show such interest as to enable him to maintain an action to enjoin the holding of an election,--that the question involved is a purely political question, and a taxpayer as such has no individual or personal right to maintain an action to restrain or enjoin the exercise of the political power of the municipality. In support of this position, counsel has cited the court to the case of City Council of McAlester v. Milwee (Okl.), 31 Okla. 620, 122 P. 173; 2 Joyce on Injunctions, pp. 2033-2037; 22 Cyc. 885. In view of the public importance of having the questions raised in this case decided, and for the further reason that this question was not raised in the trial court, we have concluded to reserve our judgment on the point raised and pass directly to a consideration of the merits of the case.

1. It is contended that the act of March 13, 1911, known as the Black Law or commission government act, is void, for the reason that it was not passed by the legislature in accordance with the requirements of sec. 13, art. 3 of the constitution. The particular defects and failure to comply with the provisions of the constitution urged by appellant are as follows: After the bill (H. B. No. 233) had been introduced and given the first and second readings and referred to the appropriate committee, we find from the house journal that on February 25th the "committee of the whole" made the following report to the house "The committee of the whole has had under consideration the general calendar and recommend that the amendments to the following house and senate bills be adopted: Nos. 129, 314, 268, 83, 378, 191, 379, 233, 171, 149, 372, 287, 162, 251, 327, 430, 354, 297, 86, 296, and 342 and senate bill No. 150 . . . ." Upon the filing of this report, the journal shows that "Black moved the adoption of the report. Seconded by Davis. Motion carried." It is contended that the house by this action attempted to adopt amendments in omnibus form by viva voce vote to twenty-two house bills and one senate bill, and that no single amendment is given, and that no separate action was taken on each bill, and that such a procedure is fatal to each and every bill thus attempted to be amended. The foregoing action, as we view it, was merely the acceptance of the report of the committee. It was evidently not considered as the final action on each separate bill in reference to the particular amendment proposed to such bill. We find further along in the journal entries of the proceedings of the same day, February 25th (House Journal, p. 437), where Black moved a "suspension of the rules and that that portion of sec. 15, art. 3 of the constitution requiring a reading of bills on three several days be dispensed with on the ground that an urgency existed and that amendments to House Bill No. 233 having been printed be read the first and second times and referred to the engrossing committee with the original bill." This motion was adopted by an aye and nay vote. The journal further recites that "amendments to H. B. No. 233 were then read first and second times and with original bill referred to the engrossing committee and ordered engrossed." This entry shows that the amendments had been printed before being read the first or second time. It was unnecessary to suspend the rules or the provisions of the constitution for the first reading. The motion to suspend the rules and the provisions of the constitution with reference to reading on three several days was properly made and carried, and afforded the constitutional authority for giving the amendments a second reading on the same day as the first reading. It is contended that these amendments must not have been printed until after the passage of the bill, for the reason that the journal entry of February 28th (House Journal, p. 482) contains a report of the committee on printing wherein they say, "Your committee on printing herewith report that...