Dissenting. — I am unable to agree with the conclusions reached in the majority opinion, and for that reason find it necessary to express my views upon the first question raised by respondent which, to my mind, is the prime and determining question in a decision of this case, namely: Does the writ of prohibition lie to enjoin the council of Boise City from calling a referendum election! The determination of this question, as I view the law applicable to this case, is conclusive against the contentions of the appellant.
My opinion is based upon the conviction which I hold that the law, firmly established by the great weight of authority, *281is that the calling of an election is a political act and beyond the jurisdiction of a court of equity to enjoin. This is true irrespective of the fact that the calling and holding of an election would be a nullity and would place an additional burden of expense upon the taxpayers within the municipality.
The general rule is stated in 1 Spelling on Injunctions and Other Extraordinary Remedies, 2d ed., see. 688, where the author says: “It is well settled that equity will not interfere to prevent the passage of ordinances in excess of the authority to legislate conferred by the state constitution and statutes; but will wait until some act detrimental to the individual or to the public is attempted under color of authority of ordinances, when, if it is found to be unauthorized and void altogether, or in so far as it assumes to authorize the act in question, the court will then and not before enjoin the unauthorized and illegal act.” (See, also, Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465; Guebelle v. Epley, 1 Colo. App. 199, 28 Pac. 89.)
In the case of Copeland v. Olsmith, 33 Okl. 106, 124 Pac. 33, where an action was instituted in the superior court against the mayor, city clerk and members of the city council for the purpose of procuring the issuance of a writ of injunction to prevent the holding of a municipal election, the supreme court lays down the rule which is supported by practically unanimous authority. It said: “A court of equity has no jurisdiction to restrain the holding of an election, since the right involved is a political one.” This rule is reinforced by the statement of Chief Justice Puller, sitting as a member of the United States court of appeals in the case of Green v. Mills, 69 Fed. 852, 16 C. C. A. 516, 30 L. R. A. 90, 25 U. S. App. 383, where that well-known jurist, among other things, said: ‘ ‘ The court has no jurisdiction in matters of a political nature, nor to interfere with the duties of any department of government, unless under special circumstances, and when necessary to the protection of rights of property. ’ ’
In the case of City of Dallas v. Dallas Consolidated St. R. Co., 105 Tex. 337, 148 S. W. 292, where an ordinance was passed by the city council prescribing the rates of railway *282companies, an injunction was sought to prevent the canvassing of returns of a referendum election on such ordinance. The plaintiff in the case contended, as in the case at bar, that the ordinance was not subject to a referendum vote. The trial court held in that case that the ordinance was not referable to the people because there was no opportunity for a hearing as provided by statute. For this reason it was contended that the city council was without authority to canvass the returns. In holding that the writ would not lie to enjoin this political act the court said, among other things: “As elections are essentially the exercise of political power, it cannot be doubted that all action properly related thereto and necessary to their completion is from the same source, and is but the expression of the same power. The canvassing of the returns of an election is necessary to the determination of the result. It is an integral part of -the election itself, without which the election is a vain proceeding; and as such inheres as a right sanctioned by the political power, as absolute as the right of the electorate to vote or for the election' to be held. When it is declared that because of their relation to the political power of the government, elections are beyond the control of the judicial power, it is meant that the whole election, including every step and proceeding necessary to its completion, is exempt from judicial interference, and the canvassing of the returns of an election must therefore be held as within the rule and justly entitled to its protection. ’ ’
The case of City Council of McAlester v. Milwee, 31 Okl. 620, 122 Pac. 173, 40 L. R. A., N. S., 576, I think, sustains my position. In that case some taxpayers filed suit against the city council to enjoin it from calling an election for the purpose of submitting to the electors of said city the question whether the mayor should be recalled. Plaintiffs contended that the council was without authority to call such election and that, if such election were called, it would be illegal and void. This, it will readily be seen, is a contention similar to the one in the ease at bar. In disposing of the case the court said: “Many applications have been made *283to this court to interfere with the holding of elections of one kind or another by the exercise of some of the high prerogative writs; .... so far as we are aware, relief of such kind has been consistently refused. .... Courts of equity are only conversant with matters of property and the maintenance of civil rights, and will not interfere to enforce or protect purely political rights. This doctrine has been universally applied in other jurisdictions where equity has been invoked to interfere in matters preceding an election. In Fletcher v. Tuttle, 151 Ill. 41, 42 Am. St. 220, 37 N. E. 683, 25 L. R. A. 143, the supreme court of that state, after a review of the authorities, reaffirmed the doctrine previously adopted that chancery has no jurisdiction to protect purely political rights such as those in respect to public elections, and held specifically that an injunction could not be granted to prevent the giving of election notices or the certifying of nominees for districts created by an apportionment act claimed to be unconstitutional, because such rights were purely political and enforceable only at law.
“It had been previously held in that state that a court of equity has no jurisdiction to restrain the holding of an election, since the right involved is a political one. (People ex rel. Fitnam v. Galesburg, 48 Ill. 485; Walton v. Develing, 61 Ill. 201; Darst v. People, 62 Ill. 306; Harris v. Schryock, 82 Ill. 119.) ”
In Duggan v. City of Emporia, 84 Kan. 429, Ann. Cas. 1912A, 719, 114 Pac. 235, numerous cases are cited from various jurisdictions supporting the doctrine as heretofore announced. The court said, among other things: “There are, however, other reasons why the appellant’s contentions cannot be sustained: First, it is a principle of very general application that courts will not enjoin the calling and holding of an election; second, injunction, being an extraordinary remedy, will not be granted unless it be made to appear to the satisfaction of a court of equity that some substantial and positive injury will occur. Acts which, though irregular and unauthorized, can have no injurious result constitute no ground for the relief.” In this opinion is cited the case *284of Walton v. Develing, 61 Ill. 201, in which it was held that the court had no power to enjoin the holding of a township election to determine whether a majority of the voters were in favor of subscribing to the stock of a railroad company, and that the defendants, who had violated the order, were not liable for contempt of court for disobedience to the writ. In the opinion of the court in which latter case, it was said: “But the attempt to check the free expression of opinion— to forbid the peaceable assemblage of the people — to obstruct the freedom of elections — if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizens. If the courts can dictate to the officers of the people that they shall not hold an election from fear of some imaginary wrong, then people and officers are entirely subservient to the courts, and the consequences are too fearful to contemplate. The principle which would authorize the mighty mandate of a court of chancery, in this case, would justify it in every election to be held by the people, and thus the whole administration of the government might be obstructed and all power and authority placed at the footstool of the judge.”
In the case of Lamb v. Burlington etc. R. Co., 39 Iowa, 333, it was said: “Without undertaking to decide the question, we simply state that we 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. . . . . 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. If the election when held was not according to statute, or if the statute was enacted without any constitutional authority, the courts might very well hold the election invalid. But that is quite another thing from enjoining the people from peaceably assembling and easting their votes for or against any proposition submitted to them under the' color of law.”
*285From an examination of all of the authorities cited, and many others too numerous to here mention, we find the doctrine universally recognized that courts ought not to interfere with the freedom of elections, from motives of public policy and because it would be an unwarranted interference with a co-ordinate and independent department of government. If the city council in this case, under the allegations of the petition, may be prohibited from calling an election to obtain an expression of the popular will on this question, there is no reason on principle why any election for any purpose might not be enjoined at the instance of any party feeling himself aggrieved or in fear that such election may be detrimental to his interests.
It is given in the majority opinion as one of the reasons, and I think the main one, in justification for reversing the trial court in its holding that the court is without jurisdiction to enjoin the calling and holding of an election, that the ordinance passed by the city council of Boise authorizing and permitting moving picture shows to be open and operated on Sunday is not such an ordinance as is subject to be submitted to the electors of the city of Boise by a referendum vote, and to permit the city council to submit such ordinance to a referendum vote would incur an unnecessary expense against the municipality. This position is clearly made untenable by almost universal authority.
In the case of State ex rel. Cranmer v. Thorson, 9 S. D. 149, 68 N. W. 202, 33 L. R. A. 582, wherein an injunction was sought to restrain the Secretary of State from certifying to the state auditor a question as a proposed constitutional amendment contained in a joint resolution passed by the legislature, the supreme court said, among other things: “It is a familiar principle that substantial and positive injury must always be made to appear to the satisfaction of a court before it will grant añ injunction, and acts which, however irregular and unauthorized, can have no injurious results, constitute no ground for relief. (1 High, Inj., sec. 9.) The party seeking an injunction must show, not only a clear legal right, but a well-grounded apprehension of immediate in*286jury. An injunction will not be granted where the injury is doubtful, or the violation of complainant’s rights is merely speculative. Injury material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable result of the action to be restrained. It is not sufficient to allege simply that the party will suffer irreparable injury, but he must set out the facts so that the court may determine the necessity for its intervention. (1 Beach, Mod. Eq. Jur., secs. 641, 642.) The complainant who seeks an injunction must be able to specify some particular act, the performance of which will damnify him, and it is such act alone that he can restrain. This court has no power to examine an act of the legislature generally and declare it unconstitutional. The limit of our authority in this respect is to disregard, as in violation of the constitution, any act or part of an act which stands in the way of the legal rights of the suitor before us; but a suitor who calls upon a court of chancery to arrest the performance of a duty imposed by the legislature upon a public officer must show conclusively not only that the act about to be performed is unconstitutional, but also that it will inflict a direct injury upon him.”
Touching the question of unnecessary expense incident to the holding of an election that court further said: “Any additional burden which might result to relator, as a taxpayer, by reason of submitting this question at a general election, is too trifling, fanciful and speculative for serious consideration; and if, as claimed by him, the legislature has done nothing but submit a question to the people, it has done what it had a right to do, and any additional expense resulting from such action will be a legitimate expenditure of public money.....Having failed to show that he will be injured by the intended action of defendant, the relator is not entitled to have it enjoined, or its regularity investigated in this action.”
The appellant in the case at bar fails to allege that he will suffer irreparable injury by reason of the holding of the election. The only allegation in his complaint with refer*287enee to this matter is contained in paragraph 7, wherein he alleges that he is a resident and taxpayer of Boise City, Ada county, and that the approximate cost of the election would be $1,000, “which would be and is an illegal and improper charge and expenditure against this petitioner and all other taxpayers of said city.” The only injury that appellant, as appears from his petition, could possibly suffer would be his proportionate share as a taxpayer of the expenses necessarily incurred in the holding of the election which would be infinitesimal and contingent upon his being a taxpayer when this claim is levied. It is apparent that the petitioner’s interest is not different from that common to all the resident taxpayers within the municipality. And under no circumstances should a writ of prohibition issue unless the act complained of would produce some peculiar damage to the individual interests of petitioner different from that sustained by other members of the municipality. (Amusement Syndicate Co. v. Topeka, 68 Kan. 801, 74 Pac. 606; Craft v. Jackson County Commrs., 5 Kan. 518.)
If for no other reason, in my opinion, the foregoing allegation in appellant’s complaint is wholly insufficient to warrant this court’s reversing the action of the trial court in refusing to enjoin the election and in directing the trial court to issue the writ of prohibition prayed for in appellant’s complaint. (See 1 High, Inj., 4th ed., sec. 9, and cases cited; City of Hutchinson v. Delano, 46 Kan. 345, 26 Pac. 740; Coffeyville Mining etc. Co. v. Citizens’ Natural Gas etc. Co., 55 Kan. 173, 40 Pac. 326; Hurd v. Atchison etc. R. Co., 73 Kan. 83, 84 Pac. 553.)
If the city council has authority under the Session Laws of 1911, p. 280, to call a special election for the purpose of determining whether or not an ordinance passed by the council and approved by the mayor shall be operative, upon a proper petition as required under the provisions of the Session Law, supra, and the ordinance shall be adopted by the votes of the electorate of the city, the petitioner would have no just cause of complaint. And even if the voters reject the ordinance permitting moving picture shows to be opened *288and operated on Sunday, and the court ultimately holds that a special election for this purpose cannot be called, the petitioner, according to his own showing, will not be injured.
In the case of Duggan v. Emporia, supra, the court said: “The futility of the proceedings to enjoin the submission of the proposed ordinances is likewise obvious when we reflect that the people may not adopt them, and the court ought not to be called upon to anticipate conditions which may never arise. The court will not decide, at the mere suggestion of a taxpayer, whether the city has the right to sell or lease its electric-light plant, because there is no certainty that any attempt to lease or sell it will be made.” Nor should the court in the case at bar issue the extraordinary writ of prohibition in anticipation of what the electors of the city of Boise may do touching the matter of permitting moving pictures to be operated on Sunday. For aught this court knows, the citizens of Boise may, at the election, express a willingness to permit moving picture shows to be operated on Sunday.
The learned Chief Justice in his concurring opinion makes the observation that his attention has not been called to a single case which involves the authority of the court to issue a writ of prohibition to prohibit an election that is not authorized by law. In the ease of People v. Board of Election Commrs., 54 Cal. 404, an application for a writ of prohibition was sought for the purpose of enjoining the board of election commissioners of San Francisco in ordering an election for fifteen freeholders to prepare and propose a charter to be submitted to the voters of the city and county as provided in sec. 18, art. 11, of the constitution of California. Notice was duly given for the holding of that election. It was charged in the petition for the writ of prohibition that the action of the board of election commissioners in making the order for the election was in excess of the powers and jurisdiction of said board and in violation of the constitution and laws of the state, and that if said election were allowed to proceed, the expense thereof would exceed the sum of $30,000, all of which would be drawn out of the treasury of the city. The petitioner for the writ alleged that he was a *289taxpayer of said city, and as such applied for the writ. On the return day defendant appeared and filed a demurrer to the petition upon the ground that the action complained of by the board of election commissioners in calling the election was not, nor was any part thereof, in any sense a judicial proceeding or the subject of examination by the court through a writ of prohibition. The court held that the demurrer was well taken, and it was sustained. In the course of its opinion the court said that the action of the board of election commissioners complained of and sought to be reached by prohibition was not judicial in its nature.
Sec. 4994, Rev. Codes, contains the same provisions as sec. 1102 of the Code of Civil Procedure of California. From a reading of sec. 4994 and from a careful consideration of the majority opinion, it might appear that a wider scope could be accorded to the writ of prohibition as provided by statute than that comprehended in the common-law writ, as the statute provides that the writ is the counterpart of the writ of mandate, and arrests the proceedings of any board acting without or in excess of its jurisdiction. This statutory provision, however, has not broadened the scope of this writ, if we are to accord any weight to the interpretation placed upon-it by the supreme court of California. In the case of Maurer v. Mitchell, 53 Cal. 289, the court said: “The word ‘counterpart’ as employed in the statute is designed to illustrate the operation of the writ of prohibition when issued in a proper case, but it is not intended to enlarge or add to the class of cases in which it may be resorted to.” Under sec. 4994, the action which it is sought to prohibit must still, as at common law, be judicial in its nature.
In the case of Stein v. Morrison, 9 Ida. 426, 75 Pac. 246, this court said that “the writ of prohibition as authorized by the constitution is the common-law writ.” And the office of the common-law writ of prohibition is to prevent courts or inferior tribunals from exercising unauthorized judicial powers. (Spelling on Injunctions and Other Extraordinary Remedies, see. 1722; State v. Clark County Court Justices, 41 Mo. 44.)
*290A city council is not a judicial body, and does not exercise judicial or quasi-judicial powers under the laws of this state in calling an election, and therefore cannot be legally enjoined by writ of prohibition. (People ex rel. Dougan v. District Court, 6 Colo. 534; People v. Board of Election Commissioners, supra.)
The legitimate scope and purpose of the writ of prohibition is to restrict inferior courts within the limits of their own jurisdiction, and it cannot be extended to officers, boards or tribunals whose functions are not judicial. The proceedings to be prohibited must be of a judicial character, and prohibition should not be granted in respect to any proceedings belonging to the legislative or executive department of government. (Shortt on Extraordinary Remedies, 440; Spring Valley Waterworks v. San Francisco, 52 Cal. 111.)
Whether the restraining order in this case be a writ of prohibition or of injunction the effect will be identical, and under the great weight of authority neither writ may be properly issued, for the reason that it is an unwarranted and unlawful interference by one branch of the government with the prerogatives of another affecting a purely political act.
It is true that the Governor of this state could call an election on the first day of July, or any other date not authorized by law, and it is equally true that he could issue a proclamation disbanding the state militia in time of war. Yet, if neither of these acts was judicial or gwosi-judicial, it could hardly be contended that the writ of prohibition would be the proper remedy.
I heartily concur in the statement of the Chief Justice that it was never the intention of the legislature to authorize a municipality to call an election to grant a license. Nor do I think licenses are granted in this manner, But in pursuance of ordinances legally passed By municipalities. The authority of the city council to call an election is one thing, and the validity of the election so called and held is quite another.
In the case at Bar the petitioner alleges ‘ ‘ That the council of said city or a majority thereof, as plaintiff and petitioner is informed and believes and upon such information and be*291lief alleges, have announced their intention to submit at their next regular meeting, to be held on March 21, 1916, . . . . Ordinance No. 1192, .... to a referendum vote for approval or rejection by the people, at a special election to be called and held within forty days from the ordering thereof, and threaten to and will do so unless restrained and prohibited by the order of this honorable court.” It will be observed that the council has taken no steps looking to the holding of an election. Thus it has not nor is it acting in excess of its jurisdiction. And even though it be conceded that the calling and holding of an election is a quasi-judicial act— which it is not — the remedy by writ of prohibition could not be resorted to.
Courts have the power and it is their duty to determine, whenever the question is properly raised and wherein the substantial rights of any citizen are involved, whether an ordinance has been legally enacted. But, with all deference to the majority opinion, I am unable to reach the conclusion that this court or the district court has jurisdiction to enjoin by the extraordinary writ of prohibition the action of the city council in submitting to the electors of a municipality for their approval or rejection any ordinance. Such prohibition would, as heretofore stated, be an unwarranted interference with a co-ordinate branch of the government in the performance of a purely political act within its rightful limits.
Having reached the conclusion that the trial court as well as this court is without jurisdiction to issue the writ of prohibition, it therefore becomes unnecessary for me to express my views on the other question submitted upon the hearing of this cause. In my opinion the action of the trial court in refusing to issue the writ of prohibition should be affirmed.