Respondents filed a Petition for Rehearing on various grounds. The first one we will consider is the complaint that the opinion erroneously stated the date when Eleventh Avenue South was designated as a State Highway, but they do not show how the difference in the date is of any importance since it had been designated as a State Highway prior to the time the contract was made giving rise to the controversy herein, and was merely inserted in the original opinion by way of recital of the surrounding circumstances leading up to the making of the contract and the commencement of the action herein.
Respondents next contend that the opinion erroneously stated that respondents were not taxpayers. The opinion does *Page 320 not so state. It does state that "This action is not brought by respondents as taxpayers but is based upon their claim of right as adjacent and abutting property owners." (Italics herein.) Unquestionably they were taxpayers or alleged themselves to be, but no mention is made in their original brief of any claim by them because of any interest or right of theirs because of being taxpayers, their entire theory of the case as disclosed by their original briefs being based on their rights asabutting and adjacent property owners. (Italics herein.)
Respondents contend that the Acts of the 1935 Second Extraordinary Session of the Legislature are in direct violation of Article 11, Section 12 of the Idaho Constitution, and that this point has not been sufficiently answered. The opinion discussed this phase of the controversy indicating that these Acts were not passed for the benefit of any corporation, and we content ourselves with adding in support of this proposition, that these Acts are not in violation of Article 11, Section 12, Oregon Short Line R. Co. v. Clark CountyHighway Dist., 22 Fed. (2d) 681, where curative Acts as to Highway Districts were upheld against a similar contention and in an analogous situation, where they were enacted as herein for furtherance of a general policy and for the benefit of the public.
Complaint is made that the court failed to pass on respondents' contention that the validating or curative Acts were special laws in violation of Article 3, Section 19, prohibiting the passage of laws legalizing unauthorized or invalid Acts of any officer against the State. Neither the respondents in the original brief nor in their brief of authorities on Petition for Rehearing have pointed out wherein the 1935 Acts are in violation of Article 3, Section 19, except on the theory that they are local and special statutes. No Act illegal or otherwise of any officer was by these statutes legalized against the State, and being entirely general in their character applicable to all similar situations wherever located they are not in violation of this Section of the Constitution as *Page 321 local or special under the holdings of this Court. Jones v.Power County et al., 27 Idaho 656, at 665, 150 P. 35:
"A statute is general if its terms apply to, and its provisions operate upon, all persons and subject matters in like situation. (See Dillon on Municipal Corporations, 5th ed., sec. 142.) The true test seems to be: Is the classification capricious, unreasonable or arbitrary?
"The case of Owen v. Sioux City, 91 Iowa, 190, 59 N.W. 3, in which was under consideration an act of the legislature, by its terms made applicable only to cities of a certain class organized since January 1, 1881, seems to us to be in point and decisive of this contention. It is said therein:
" 'Will the act be declared unconstitutional, when facts are judicially known to exist that would be a legal basis, for classification, because a date is used as a basis, and not such facts? That the legislature relied upon the date as a reason for its act, in any other sense than as it served as a means by which the law was made to meet the conditions and circumstances leading to its enactment, no one can believe. Of course the law was not made because of the date. It was made to meet conditions and wants, existing or anticipated, of a class of cities, and the date was but the separating point whereby other cities were excluded from the operation of the law. That it makes another classification of cities than those based on population is not fatal to the act, because, as we have said the classification on the basis of population is by legislative action, and there is nothing prohibiting such further classification as the legislature may think proper; and the only proper inquiry as to classification in the case at bar is, is the act, because of the classification adopted, without that uniformity of operation contemplated by the constitution? We think not. . . . . We are not aware of any rule whereby an act of the legislature must specify the conditions on which its validity must depend, but, on the contrary, the court will assume the existence of such conditions until it is apparent that they do not exist. In Munn v. Illinois, 94 U.S. 113,24 L.ed. 77, wherein the supreme court of the United States had under consideration the constitutionality *Page 322 of a state law, this language is used: "For our purposes we must assume that, if a state of facts could exist which would justify such legislation, it actually did exist when the statute under consideration was passed. For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void; but if it could, we must presume it did." ' "
The same principle being reaffirmed in In re Bottjer, 45 Idaho 168,260 P. 1095.
Other portions of the Petition for Rehearing while under various headings and phases raise again the question of whether or not the respondents are entitled to compensation or an injunction in lieu of compensation because of the alleged taking of their property without compensation. We exhaustively determined that point and reaffirm our position in that matter.
The remaining contention is that the court did not sufficiently consider the claimed unconstitutional retroactive effect of the statutes as violating the sanctity of the judgment as a contract in the previous suit and cite cases which considered Acts held to violate the Federal and State Constitutions. The Supreme Court of the United States inHodges v. Snyder, 261 U.S. 600, 43 Sup. Ct. 435, 67 L. ed. 819, on this precise point said:
"The plaintiffs in error concede that the legislature, in the general exercise of its inherent power to create and alter the boundaries of school districts, may create new districts by the consolidation of others. Stephens v. Jones, 24 S.D. 97, 100,123 N.W. 705. And they likewise recognize that, since the legislature had the power to ratify that which it might have originally authorized, there would have been no violation of due process if the curative act had been enacted and become effective before any adjudication had been made in the pending litigation as to the invalidity of the consolidated district.United States v. Heinszen, 206 U.S. 370, 386, 51 L. ed. 1098,1103, 27 Sup. Ct. 742, 11 Ann. Cas. 688; Rafferty v. Smith B. Co., 257 U.S. 226, 232, 66 L. ed. 208, 210, 42 Sup. Ct. 71;Charlotte Harbor N. R. Co. v. Wells, decided *Page 323 by this court October 16, 1922 (260 U.S. 8, 9, ante, 100,43 Sup. Ct. 3, 67 L. ed. 100). And see generally, as to giving effect to acts passed pendente lite, but before the hearing,Stockdale v. Atlantic Ins. Co., 20 Wall. 323, 331,22 L. ed. 348, 351; Mills v. Green, 159 U.S. 651, 656, 40 L. ed. 293,294, 16 Sup. Ct. 132; and Duplex Printing Press Co. v. Deering,254 U.S. 443, 464, 65 L. ed. 349, 355, 16 A.L.R. 196,41 Sup. Ct. 172.
"Their sole contention is that, as the curative act was not enacted until after the supreme court had decided, on the first appeal, that the consolidated district was invalid, and did not go into effect until after the circuit court had entered judgment adjudging its invalidity, and enjoining the defendants from further conducting its affairs, it deprived them, as applied by the supreme court, without due process, of the private property rights which had been vested in them under these adjudications.
"It is true that, as they contend, the private rights of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation, but must be thereafter enforced by the court regardless of such legislation. (Citing cases.)
"This rule, however, as held in the Wheeling B. Bridge Case, does not apply to a suit brought for the enforcement of a public right, which, even after it has been established by the judgment of the court, may be annulled by subsequent legislation, and should not be thereafter enforced; although, in so far as a private right has been incidentally established by such judgment, as for special damages to the plaintiff, or for his costs, it may not be thus taken away. (Citing cases.)"
Counsel criticize our reliance on Charlotte Harbor NorthernRy. Co. v. Wells, 260 U.S. 8, 43 Sup. Ct. 3, 67 L. ed. 100, in support of our holding that this retrospective legislation did not impair any rights they had in the judgment as a contract because in that case there was no final judgment. Hodges v.Snyder, supra, on the point involved herein, cited as a sustaining authority Charlotte Harbor Northern Ry. *Page 324 Co. v. Wells, supra, and we have held that the respondents herein are not entitled to compensation or injunctive relief on the theory that their property has not been taken and that therefore as indicated in the original opinion they had no individual property right in the judgment. The application of the cases cited by respondents are distinguishable because not stating the majority rule or on two grounds: first, that the acts herein considered were curative in nature, and second, had to do as pointed out in Hodges v. Snyder, supra, with private rights and not public rights. The opinion of the State court inHodges v. Snyder, 45 S.D. 149, 186 N.W. 867, 25 A.L.R. 1128, goes exhaustively into the question herein involved, reasoning in harmony with the opinion herein and as appears from the annotation following that opinion in 25 A.L.R. 1136, the majority of the courts have held in uniformity with our position. See also In re Chester School District's Audit,301 Pa. 203, 151 A. 801, and Worley v. Idleman, 285 Ill. 214,120 N.E. 472:
"The objection most frequently urged in cases similar to the one at bar, and one which appellants in effect here make, is that by the curative act the Legislature has invaded the constitutional province of the judiciary, and has attempted to set aside the force and effect of the judgments and decrees of the courts. Where the judgment or decree is based on the ground of want of authority from the Legislature to issue the bonds in the manner in which they have been issued, it has been uniformly held, so far as our investigation discloses, that the Legislature is not, by reason of such judgment or decree, deprived of the right to pass a curative act validating such bonds, and that the Legislature does not, by passing the curative act, invade the province of the judiciary or set aside any judgment or decree of court. Uyter v. Franklin,172 U.S. 416, 19 Sup. Ct. 183, 43 L. ed. 498; Givens v. HillsboroughCounty, 46 Fla. 502, 35 So. 88, 110 Am. St. 104; Schneck v.City of Jeffersonville, 152 Ind. 204, 52 N.E. 212; Wrought IronBridge Co. v. Town of Attica, 119 N.Y. 204, 23 N.E. 542. The former judgment and decrees in which the validity of the bonds of July 1, 1912, *Page 325 was involved, were based solely on the ground that the highway commissioners were without legal authority to issue the bonds. This lack of authority has been supplied by the curative act and by the action of the voters of the town at a town meeting, and the objection to the bonds which existed at the time of the former judgment and decrees no longer exists. Moreover, appellants, by virtue of the judgment and decrees rendered in their favor, became vested with no property rights which are divested by the curative act. The judgment of this court and the decrees of the circuit court upon which appellants rely were not final adjudications that the bonds of July 1, 1912, did not constitute a legal indebtedness against the town of Bowdre, for the reason that the bondholders were not parties to any of the suits in which the question of the validity of those bonds arose. Until an adjudication had been made in a suit between the town and the bondholders declaring that the bonds were not valid, the Legislature had the right and power, as between the town and the bondholders, to validate those bonds, provided the people of the town gave their assent thereto. The judgment of this court and the decrees of the circuit court were based upon the findings that the bonds did not then constitute an indebtedness against the town, and no tax could therefore be legally levied or assessed to pay the same. While appellants' property thereby became freed from liability for taxes to pay the principal and interest of those bonds so long as the bonds did not constitute an indebtedness against the town, their property did not thereby become freed from liability for taxes to pay the principal and interest of the bonds, if the bonds should thereafter become a valid indebtedness against the town."
Respondents refer to the case of Langever v. Miller, 124 Tex. 80,76 S.W.2d 1025, 96 A.L.R. 836, which case, however, did not have to do with a curative statute or with public rights but had to do with the changed retrospective enforcement of private rights. It is to be borne in mind that the basic premise in this phase of the case is that the *Page 326 Legislature could have in the first instance authorized the action ratified in the 1935 Statutes.
With this amplification in answer to the points raised by respondents on their Petition for Rehearing, the original opinion is adhered to and the Petition for Rehearing is denied.
Morgan and Ailshie, JJ., concur.
Holden, J., dissents.
Budge, J., did not sit or participate.