Perrault v. Robinson

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 held is by a proper action after the result has been declared. This question was before this court in case of Swain v. Fritchman, 21 Ida. 783, 125 Pac. 319, but was not decided because of the grave public importance of the questions involved in that case, and for the further reason that the objection was not made in the trial court.

Counsel for respondents have cited for our consideration a long’ line of authorities to the effect that courts of equity will not interfere, and injunction will not lie to restrain the holding of an election, but they do not appear to us to have great persuasive force when an attempt is made to apply them to the facts of this case and to our statutes providing for and governing the writ of prohibition.

The question here is not, as in most of the cases cited, may an election which is provided for by law be restrained, but is, have the mayor and council of Boise jurisdiction to call an election which is unauthorized by law and thereby involve the taxpayers of that city in a useless expense of approximately $1,000?

See. 4994, Rev. Codes, provides: “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.”

It appears to us that the writ was intended for cases of this kind and that, as mandamus will compel the holding of a legal, authorized, valid election when wrongfully refused (Kessler v. Fritchman, 21 Ida. 30, 119 Pac. 692), 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. (See Layton v. City of Monroe, 50 La. Ann. 121, 23 So. 99; Cascaden v. City of Waterloo, 106 Iowa, 673, 77 N. W. 333; Solomon v. Fleming, 34 Neb. 40, 51 N. W. 304; Mayor etc. of City of Macon v. Hughes, 110 Ga. 795, 36 S. E. 247.)

The remaining question is, have the mayor and council jurisdiction to submit Ordinance No. 1192 to a referendum vote?

Chap. 82, supra, creates a commission form of government for such cities, having a population of 2,500 persons or more, as may see fit to avail themselves of it. The city- of Boise, in 1912, adopted that form of government, and since then has been and now is governed thereby.

It is provided in said chap. 82 that the people of a city which has adopted the commission form of government shall have, in addition to the usual and ordinary law-making powers, the power of direct legislation by the initiative and referendum; that the initiative shall be exercised by means of a verified petition to be filed with the city clerk, accompanied by the proposed legislation, or measure, in the form of an ordinance, requesting that such ordinance be submitted to a vote of the people if not passed by the council; that if such petition is signed by qualified electors equal to twenty-five per centum of the total number of votes cast for mayor at the last preceding general municipal election, the council shall either pass such ordinance without alteration or call a special election and submit it to popular vote, and that if any other municipal election is to be held within ninety days after the filing of the petition, the proposed ordinance shall be submitted without alteration to be voted upon thereat; if the petition is signed by qualified electors in number equal to ten per centum and less than twenty-five per centum of the total number of votes cast for mayor at the last preceding general election, and the proposed ordinance be not passed by the council without alteration before the commencing of publication of notice of the next municipal election, it shall be submitted to popular vote thereat, provided, however, that such petition must be filed at least thirty days before the date fixed for such election.

Sec. 25 of chap. 82 relates to the referendum, and provides that if, prior to the date when any ordinance shall take effect, a petition signed by qualified electors equal in number to twenty-five per centum of the entire vote cast for mayor at the last preceding general municipal election shall be filed with the clerk protesting against the enactment of such ordinance, it shall, by the filing of such petition, be suspended from taking effect and the council shall immediately reconsider such ordinance and, if it does not entirely repeal the same, shall submit it to popular vote at the next municipal election; that the council, in its discretion, may call a special election for that purpose, and such ordinance shall not take effect unless the majority of the qualified electors voting thereon at such election shall vote'in favor thereof.

The eleventh legislative session, at about the time it enacted the commission form of government law, passed chap. 99, Sess. Laws 1911 (p. 342), amending sec. 6825, Rev. Codes, making it unlawful to keep open any theater or moving picture show on Sunday, but providing: ‘ ‘ That if a number of the qualified electors residing within the limits of any incorporated city or village equal to a majority of the votes cast at the last general election therein shall petition the council or board of trustees of such city or village to permit theaters and moving picture shows to keep open on Sunday therein, such council or board of trustees may pass an ordinance permitting theaters and moving picture shows to keep open on Sunday in such city or village during such hours and subject to such regulations as may be prescribed in such ordinance. ’ ’

The question resolves itself into this: Was it the legislative intention that the opening and operation of theaters and moving picture shows on Sunday, in cities availing themselves of the commission form of government law, should be permitted, if at all, by direct legislation according to the provisions of chap. 82, or by the city council, upon petition, according to the provisions of sec. 6825, Rev. Codes, as amended by chap. 99 ?

Chap. 82 is a general law applying equally to all cities of the state, having the required population, that see fit to adopt its provisions and is intended to give to such cities a complete form of government including the power of direct legislation. Sec. 6825, Rev. Codes, as amended by chap. 99, while a general law in the sense that it applies to all cities and villages in the state, is special in this, that it attempts only to regulate certain specified places and means of amusement on Sunday. While chap. 82 relates to the commission form of government in general and, as an incident thereof, grants the power of direct legislation, chap. 99 specifically points out the course to be pursued by the inhabitants of cities and villages who desire theaters or moving picture shows to be opened and operated on Sunday and vests the power to grant this permission in the council or board of trustees upon receipt of a proper petition therefor.

It is said in sec. 268, Lewis’ Sutherland on Statutory Construction, vol. 1: “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.” This court said in Peavy v. McCombs, 26 Ida. 143, 140 Pac. 965: “The rule that statutes in pari materia should be construed together applies with peculiar force to statutes passed at the same session of the legislature; they are to be construed together, and should be so construed, if possible, as to harmonize and give force and effect to the provisions of 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 a statute of a more general nature.” In Hartig v. City of Seattle, 53 Wash. 432, 102 Pac. 408, the supreme court of Washington states the rule thus: “Where general and special concurrent laws are conflicting, the provisions of the special law must obtain.”

It seems to be entirely clear that chap. 99 was enacted for the government of all the people of the state of Idaho, including those who reside in cities which have heretofore adopted, or may hereafter adopt, the commission form of government. Had this not been the legislative intent, appropriate language undoubtedly would have been employed to exclude such cities from the operation of the law. It does not appear to be probable that it was the intention of the legislature that a petition signed by qualified electors equal in number to ten per centum of the votes cast for mayor at the last preceding general election may, under the provisions of chap. 82, initiate any kind of measure within the scope of direct legislation, except one to permit theaters and moving picture shows to be open and operated on Sunday, and that in case of a proposed ordinance on that subject, five times that number must petition under the provisions of chap. 99, and that, having so petitioned, and their petition having been granted and the ordinance enacted, it may be defeated or submitted to a referendum vote by request of one-half their number, pursuant to chap. 82.

It appears to us that it was the legislative intent that 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 of 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 that having granted it, by the passage of an appropriate ordinance, the referendum provision of the commission form of government law does not apply thereto.

The judgment of the trial court is reversed and the cause remanded, with instructions to the trial court to overrule the demurrer and permit the defendants to answer, if they desire to do so; otherwise, grant the peremptory writ of prohibition against the defendants as prayed for in the complaint. Costs awarded to appellant.

Sullivan, C. J., concurs.