The opinions filed in this case present a rather novel situation. Mr. Justice Morgan concludes that a writ of prohibition will not issue to prohibit the performance of a ministerial act, whether the act be one commanded by law, or one without authority of law; in which conclusion Honorable William A. Babcock, District Judge, concurs. On the other hand, Mr. Chief Justice Budge holds to the view that the plaintiff waived his right to prosecute this case, and, therefore, to have it heard upon its merits, *Page 810 by waiting until after the primary election. Mr. Justice Givens merely concurs in the conclusion that the writ ought not to issue. In other words, Mr. Justice Givens does not agree with either Mr. Justice Morgan, or Mr. Chief Justice Budge, so that a majority of this court do not hold either that a writ of prohibition will not issue to prohibit the performance of a purely ministerial act, or that plaintiff waived his right to prosecute this case by waiting until after the primary election.
It is my view that a writ of prohibition will issue to prohibit the performance of a ministerial act, which is without authority of law, and that plaintiff, Taylor (an elector of this state), did not waive his right, by waiting until after the primary election, to prosecute his action for the issuance of a writ of prohibition, and that this case ought to be decided upon its merits, in order that this court might determine, one way or the other, either that chapter 16, 1933 Sess. Laws, is clear, definite and certain, and the election held under it valid, or that it is uncertain and indefinite, instead of disposing of the case upon collateral questions, as the majority opinion does, thus refusing to determine the case upon its merits.
On grounds of public policy, an elector cannot waive his right to question the validity of a statute, to wit, chapter 16, 1933 Session Laws. (State ex rel. Birchmore v. State Boardof Canvassers, 78 S.C. 461, 59 S.E. 145, 13 Ann. Cas. 1133, 14 L.R.A., N.S., 850, and cases cited in the note; 9 Rawle C. L. 1174; 10 Rawle C. L. 833; 27 Rawle C. L. 906.) And a party participating in an election does not deprive himself of his right to question its validity. It seems clear that voting at an election could not have the effect of making an invalid statute, valid, nor a valid statute, invalid. (City of Lebanonv. Humkey, 161 Ky. 454, 170 S.W. 1172; Elliott v. Burke,113 Ky. 479, 68 S.W. 445.)
The opinion of Mr. Justice Morgan, holding that a writ of prohibition will not lie to prohibit the performance of a ministerial act, is based on Stein v. Morrison, 9 Idaho 426,75 P. 246. In that case prohibition was sought to prohibit the issuance and sale of state bonds, authorized by *Page 811 certain acts of the legislature, on the ground that the legislature had made an appropriation in excess of the tax levy, in violation of section 11, article 7, of the state Constitution, prohibiting the legislature from making an appropriation whereby expenditures during any fiscal year would exceed the total tax provided by law, and upon the further ground that the appropriations and expenditures authorized by the legislature, added to prior and existing liabilities and debts, exceeded the debt limit of one and one-half per cent of the total assessed valuation of property in the state, contrary to the provisions of section 1, article 8, of the state Constitution.
This court held in that case that the appropriations made and authorized, did not exceed the debt limit prescribed by the Constitution, and that the petition did not, therefore, state facts sufficient to entitle Stein to the relief prayed for, to wit, a writ of prohibition, which most effectually disposed of the entire controversy. Consequently, that part of the opinion (upon which Mr. Justice Morgan relies), discussing the circumstances under which a writ of prohibition would, or would not, issue, and stating that the writ would not issue to restrain a purely ministerial act, is mere dictum, because that case had been fully disposed of by the holding of the court that the complaint was wholly insufficient; and, therefore, the rule announced by this court in Williams v. Lewis, 6 Idaho 184,54 P. 619 (decided in 1898), is still the law of this state. In the last-mentioned case this court held that "a writ of prohibition, under the statutes of Idaho, will lie to restrain the action of a ministerial officer, when it appears that such action is illegal and beyond his jurisdiction; as the Secretary of State, in certifying to the county auditors a ticket not entitled to be certified."
In Balderston v. Brady, 17 Idaho 567, 107 P. 493, Balderston sought a writ of prohibition against Governor Brady restraining threatened action of the State Land Board in releasing title to certain lands in Shoshone county. Balderston relied upon the authority of Stein v. Morrison, supra. This court held that it would not attempt to control or *Page 812 direct the action of the Land Board so long as its discretionwas exercised within the scope of its authority, but that "where, on the other hand, the proposed or contemplated action is without authority of law, or has no legal sanction, the courts may interfere and interrupt their action and declare thelaw on the subject, and point out to them the legal scope within which their judgment and discretion is to be exercised." (Italics mine.)
Judge Ailshie, the author of the opinion in Balderston v.Brady, supra, in the course of analyzing the holding of this court in Stein v. Morrison, supra, states that "It is doubtful if anyone would seriously contend that the process of the courts will not run against an individual, or individuals,holding an executive office or offices or comprising an executive board, simply because they occupied such officialposition and were assuming to act as officials, although their action was beyond the scope of their authority and whollyunauthorized by law. We do not hold such a position tenable,and have never so held." (Italics mine.)
It appears, therefore, that this court, in the case ofBalderston v. Brady, supra (relied upon by Mr. Justice Morgan), clearly held that, notwithstanding the case of Stein v.Morrison, supra, any act of an executive officer, beyond thescope of his authority, and unauthorized by law, would berestrained, and stating that this court had never held anythingto the contrary. And, it must be remembered, that Judge Ailshie wrote the opinion of this court in Stein v. Morrison, supra, as well as the opinion in Balderston v. Brady, supra, and, therefore, must have understood, better than anyone else could understand, just what this court intended to hold, and actually did hold, in Stein v. Morrison.
In Perrault v. Robinson, 29 Idaho 267, 158 P. 1074, Mr. Justice Morgan, the author of the majority opinion in that case, says: "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." In other words, the question *Page 813 in that case was: whether an election, unauthorized by law, would be restrained. The majority of the court, in the Perrault case, held that an election, unauthorized by law, could be restrained. Perrault sought a writ of prohibition to restrain the mayor and city council of Boise from submitting to a referendum vote a certain ordinance of that city. The gist of that action was to prohibit the mayor and city council from holding an election, which Perrault contended was not authorized by law. In principle, and as a matter of law, it could make no difference whether it was a city council, or a Governor or a Secretary of State, that was threatening action looking toward the holding of an election. The only question would be as to whether the law authorized the holding of the threatened election, because it at once becomes clear that this court would not prohibit a city council from calling and holding an election not authorized by law, and then, and in another case, refuse to prohibit a Governor, or a Secretary of State, for example, from taking action looking toward the calling of an election, if such threatened election was not authorized by law. And that Mr. Chief Justice Sullivan took the view that an executive officer, even a Governor, could be prohibited from calling an election, if the election was unauthorized by law, is made clear from the expression of his views, contained in his special concurrence, as follows:
"If it be held that the holding of an election that is not authorized by law cannot be enjoined or prohibited in any manner by any writ from any court, then the Governor of this state might call a general election for the first day of July, or for any other time than the date authorized by law, and there would be no power whatever to restrain him from so doing, and the people of the state would thus be put to an expense of at least $100,000, the amount estimated that the holding of a state election would cost the taxpayers of this state."
Of course, the amount of the expense involved in holding an election could not determine, or have the slightest effect upon, the matter of conferring jurisdiction upon this, or *Page 814 any, court. Jurisdiction, it is universally conceded, is conferred upon courts by law, and not, for example, by the amount of expense involved in holding any kind of an election.
Mr. Chief Justice Budge, in his opinion in this case, states that: "We are asked, notwithstanding the decision inKoelsch v. Girard, ante, p. 452, 35 P.2d 816, in which we hold the act now under consideration to be constitutional and valid, to now hold that act to be unconstitutional and void, and, to set aside a primary election for the reason that the various county auditors did not agree upon the instructions to the voter to be, and which were, placed upon the primary ballot." In that case, this court was not called upon to, nor did it decide, that chapter 16, 1933 Sess. Laws, was or was not so indefinite and uncertain as to render it invalid, so that case cannot be relied upon as an authority in this case.
Mr. Chief Justice Budge also discusses, at some length, the state-wide conflict among county auditors in the matter of giving instructions to voters, and in that connection states. "Would we be justified in setting aside the election and disqualifying the thousands of electors who did vote their full voting strength and the thousands who voted only a part of their voting strength, and should we visit upon the electors the penalty of disfranchisement, particularly in view of the fact that the names of all candidates appeared upon the judicial ballot and all candidates' names were before the electors from which to choose, it being necessary that there should be double the number of candidates nominated for the one position to be filled?"
I do not express an opinion as to whether this court would, or would not, be justified in holding chapter 16, 1933 Sess. Laws, invalid, and thereby set aside the election for the nomination of candidates for judicial offices, because a majority of this court, by their ruling and decision, have made it impossible to consider that question, or this case upon its merits, or to determine whether such primary election was valid or invalid.
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