Concurring. — I concur in the foregoing opinion of Mr. Justice Morgan. The act known as the “Black Law” was held constitutional by the majority of this court in Kessler v. Fritchman, 21 Ida. 30, 119 Pac. 692. That decision was rendered by a divided court, but the majority held that said act was a valid law, and a proper construction of some of its provisions is involved in this case.
No question is raised in regard to the passage of the ordinance referred to in Justice Morgan’s opinion, and the main question presented is whether the city council is authorized, under the facts of this case, to submit said ordinance to a referendum vote of the electors of Boise at a special election called for that purpose. Counsel for respondent cite many cases which hold that an injunction will not issue to interfere with an election. Nearly all, if not every one, of the cases cited involve the issuance of a writ of injunction. My attention has not been called to a single case cited by counsel for respondents which involves the authority of a court to issue a writ of prohibition to prohibit an election that is not authorized by law. While the writ of injunction restraining a certain act is in the nature of a prohibition, it differs so essentially from the writ of prohibition that there seems considerable impropriety in the comparison of the two writs. Mr. Spelling, in his work on Injunctions and Other Extraordinary Remedies, vol. 1, sec. 40, states: “A prohibition is a remedy against an encroachment of jurisdiction, issued only from a superior court, is granted on the suggestion that the court to which it is directed has not the legal cognizance of the cause, and it is directed to the judge of the inferior court, as well as to the parties in the cause. An injunction, on the other hand, where its object is to restrain proceedings in another court, is directed only to the parties. ’ ’
The same rule or law does not apply to the issuance of injunctions that applies to the issuance of the writ of prohibition. Under our statutes an injunction may issue on either of the six grounds mentioned in sec. 4288, neither of which grounds involves the jurisdiction of the court, and the writ will not be granted unless it is made to appear to the satis*278faction of the court that some substantial and positive injury will occur. Sec. 4994, Rev. Codes, declares that the writ of prohibition is the counterpart of the writ of mandate, and that 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. The city council is a board that has certain jurisdiction, but it has no power or authority to call an election to pass upon the ordinance involved in this case. In the case at bar it is exceeding that jurisdiction by attempting to hold an election that is not authorized by law.
It appears that it will cost the city about $1,000 to hold said election, and it would be a misappropriation of the funds of the city to pay the expense of holding such an election out of the city funds.
Counsel for respondents cite in support of their contention Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465. That case is not in point, for the reason that it involved illegality in the preliminary proceedings of an election. The election was authorized by law. In the case at bar there is no authority whatever for calling the election.
Counsel also cite Thompson v. Mahoney, 136 Ill. App. 403; Fletcher v. Tuttle, 151 Ill. 41, 42 Am. St. 220, 37 N. E. 683, 25 L. R. A. 143; Shoemaker v. Des Moines, 129 Iowa, 244, 105 N. W. 520, 3 L. R. A., N. S., 382; City Council of McAlester v. Milwee, 31 Okl. 620, 122 Pac. 173, 40 L. R. A., N. S., 576. There are exhaustive notes to both of the two last cited cases. The author to the note in the last case, on page 576, says that the Kansas supreme court points- out that many decisions holding that courts of equity will not enjoin an election are from courts where the distinction between courts of law and equity is still preserved, and that they proceed upon the theory that equity has no jurisdiction of matters which do not affect rights of property, and therefore will take no cognizance of injuries affecting mere political rights, and cites Duggan v. City of Emporia, 84 Kan. 429, Ann. Cas. 1912A, 719, 114 Pac. 235, and says: “The court, however, says arguendo that since the distinctions between courts of law *279and equity no longer exist in Kansas, and since the courts would not hesitate to compel by mandamus a county clerk to place the name of a candidate upon a ballot, no good reason appears why the same court should not, at the suit of proper parties and upon sufficient grounds, enjoin the clerk from placing the name of the candidate thereon.” That case also involved an injunction. In the same note the author cites Conner v. Gray, 88 Miss. 489, 9 Ann. Cas. 120, 41 So. 186, and states that that case holds that the judiciary will interfere only where the legislature has not the power to authorize the holding of an election under the constitution, or where, having the power, it has exercised it in a way which is in plain violation of the state constitution, but that in both cases it must appear from the act itself that it is unconstitutional.
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.
The holding of many of the courts that a court has no authority to prohibit the holding of an election since the right involved is a political one is based upon the theory, as I understand it, as stated in Lamb v. Burlington etc. R. Co., 39 Iowa, 333, that the court should hesitate long before adjudging that any court has the power or jurisdiction to enjoin an election to be held by the people pursuant to a public law, and the court in that ease states: “The jurisdiction of any court, or of the whole judicial department of the government, to enjoin the expression of the popular will at a time and in the manner provided by statute, may well be doubted.”
I concur absolutely with that statement so far as it applies to an election provided for by law; but, when the proposed election is not pursuant to a public law and is by implica*280tion prohibited by statute, a court will prohibit upon proper application the holding of such an election and the expenditure of the people’s money in paying the expenses thereof.
The city council of Boise has no authority to call and hold an election at the expense of the people that is not authorized by statute, and, as I view it, the “Black Law” does not contemplate that the action of the city council in granting a license shall be submitted to a vote of the people. If under the “Black Law” the city council is authorized to call an election to determine whether every application for a license may be granted, it certainly would become very burdensome to the taxpayers to pay for such elections, and I do not think it was ever intended by the legislature that authority was granted to the city council to call elections in such matters. I am aware that this is contrary to the views expressed in my dissenting opinion in the case of Kessler v. Fritchman, supra, but since that law has been held valid, it certainly should be given a reasonable construction. It certainly was not intended that in every instance where the city council was afraid to take the responsibility of granting or refusing a license that it should be permitted to evade the responsibility and make the people pay for an election to determine the question, when such election is not authorized by law.
Should the city council conclude that moving picture shows should not be permitted on Sunday, they can repeal or set aside said ordinance.