concurring in part and specially concurring.
PART I.
There is much in Justice McDevitt’s opinion with which I can readily agree. Moreover the thrust and tenor of his analysis of the heart of the controversy is commendable in that he immediately recognizes that the district court’s decision, the entry of a summary judgment based upon a contractual theory, was incorrect.5 At 309, 834 P.2d at 311 (1992). Likewise, I readily agree with his conclusion that the Blacks’ complaint initiating the action was brought upon a meritorious, reasonable, and well-founded legal theory.
PART II.
A. A Brief Resume of the History of This Litigation.
Glen and Peggy Black,6 had a plan for a development in downtown Ketchum, a plan which in the past forty years had not occurred to anyone else. It was a good plan, and it was their plan. The first phase of that plan was to acquire real property sufficient in area to accommodate a motel. They did so without any problem. The real estate which they acquired included ancient buildings and other improvements. Their acquired real property abutted on both sides of an alley. The Blacks had retained the services of a local architect who pre*311pared the plans and specifications for the motel, which would be erected on the Blacks’ property, and which would put the alley to a beneficial use, as contrasted to many previous years of no use, and apparently an eyesore. The Blacks were aware of statutory Idaho law which provides that alleys are subject to being vacated by a city council, or discontinued when deemed “expedient” which word, according to the dictionary has various definitions, one being “suitable for achieving a particular end.” The particular end which the Blacks had in mind was to obtain the benefit of the statute, I.C. § 50-311, which provides that on the city’s vacating an alley, “the same shall revert to the owner of the adjacent real estate, one-half (V2) on each side thereof____” As noted above, the Blacks were legally entrenched in that respect by reason of being the sole owners of the real estate on both sides of the alley.
Accordingly, the Blacks requested of the council that the alley be vacated. No reason appears why that request would not be granted by means of an appropriate ordinance. However, the Blacks were forthright with the city council, and openly discussed the plans for the motel as being their reason for wanting the ordinance enacted. The Blacks attended council meetings where they were allowed to exchange points of view with attending council members. The Blacks soon learned, as the city clerk’s minutes reflect, that the enacting of the ordinance vacating the alley was destined for problems, as attested to by statements made by city council members, clearly evidencing an attitude that some council members were open to negotiations to determine what consideration the city would receive from the Blacks in return for a city ordinance vacating the alley. Clearly, the Blacks were given to understand that they should not expect the city to gratuitously enact an ordinance vacating the unused alley. Pertinent portions of the minutes of the council meeting of December 21, 1987, adequately support the foregoing:
This being the date and hour advertised for a Public Hearing upon the application of Glen Black to vacate a portion of the 20 foot wide alley between Lots 1, 2, 3, and 5, 6 and 7, Block 1, Ketchum Town-site, May Seiffert opened the Public Hearing and asked for comments from the public.
Jim McLaughlin represented the applicant.
The P & Z Administrator said that the P & Z had considered the vacation at their last meeting and had recommended vacation subject to the Council determining if and what consideration would be reasonable for public benefit and also, subject to their enacting an Ordinance only if a valid permit is obtained for the motel. The portion of the alley proposed for vacation is behind Dick York on Main Street. The alley between the two remaining lots is taken up by the Sun Valley Motors building. Three letters were received. Letters from Barbara Oring and the merchants of Trail Creek Village supported the vacation. The third letter from Nicholas and Jan Cox expressed concern about the zoning and the impact on adjacent residential properties.
Mr. McLaughlin said that the alley has not been used for a number of years because Sun Valley Motors built a roof over it and used it as part of their facility. In order to build the motel complex that Mr. Black would like to put on the property and accomplish the underground parking required for that facility, it is necessary to build over what is currently dedicated as the alley. They are presently planning 61 units. They propose to preserve much of the frontal area for landscaping of Leadville. The building will be three stories with an entrance to the underground parking off River Street. The project will have its own laundry.
The City Administrator pointed out that one benefit to this type of development will be the City Sales Tax revenue that will be generated.
Council woman Orb raised the question of compensation for the alley.
The City Administrator said that there is an existing homestead cabin on the property which Mr. Black would like to give to the City if they want it. Alternatively *312Mr. Black owns the service station and there are some gas pumps and hoists and the City can have first choice on them. The gas pumps themselves are not the type that the City uses but there may be some things that can be used.
Mr. Black said that he would like to see the cabin stay with the City. He said that he would do some research and if he can find anything out he will have a brass plaque made to place on the cabin wherever the City would like to place it. Councilman Young felt that the Council should try to formulate more of a policy than they have had in the past.
The City Administrator said that the only criteria is whether or not it is used for public transportation or is it likely to ever be used for public transportation. Alleys are normally used for access in the B-l parking plan. They are used for access for garbage and service trucks when the development proposes to use both sides of the alley. The question is if there is no alley where do you provide an area for service deliveries.
Mr. McLaughlin said that in this case it will be off Leadville.
Councilman Held said that in this particular instance he has no problem with the client [sic, applicant] using the alley as long as he is doing underground parking and using the alley for access and if in Design Review he provides sufficient ingress and egress for service vehicles. There is no problem as long as the City is compensated. He would like the structure to stand on its own at Design Review. There is no problem as long as the City can set up a formula for compensation. He would not like to see the project held up for too long while this is done.
The City Administrator said that a water line and a sewer line will have to be abandoned. He has talked to the developer about this. An appraisal can be done to establish the fair market value of the alley.
Mr. Black did not feel that the value would be the same as buying a regular lot because of the irregular shape of the property. The alley is a long narrow piece of property which is landlocked. There is almost nothing else it can be used for.
Councilman Held indicated that he had no problem with bartering, however, he would like to do it at a public session. He felt that there should be a work session with staff input on what the land is worth. If the two pieces of property were separately owned, the alley would be valuable to the City for parking.
Edward Lawson suggested vacating the lot lines and creating one parcel.
Councilman Young asked the City Attorney if the City basically concludes that they no longer have use for an alley, they can require compensation for it.
The City Attorney felt that there was a problem with selling an alley for compensation which had heretofore been dedicated to public transportation. In the past the City has tried to gain the consent of those people that are on the remaining portion of the alley or street. In his mind the Statute is very vague with regard to the consent of adjoining property owners. If, however, anybody does sustain special damages they have to be compensated for them. In the past the City has tried to gain the consent of adjoining property (a) with regard to the vacation and (b) a statement saying that they will not be damaged by the vacation in order to avoid conflict. An Ordinance will have to be passed before the vacation becomes effective and if the Council wants to discuss an approach to compensation more discussion will be needed.
Councilman Held said that if there was going to be two separate buildings it would not be in the public interest to get rid of the alley. If there is only going to be one building the alley is not needed for transportation. He was concerned about the Council vacating the alley and then the developer building two separate buildings.
Mr. McLaughlin said that Mr. Black was willing to accept the construction of the motel as a condition of the vacation.
*313Mr. Black suggested that he sign an agreement to deed back or sign a quitclaim deed back to the City if construction is not started within a certain period of time.
The City Attorney pointed out that the adjoining property owners never held the alley. It was platted by the Federal Township.
Dick Fosbury suggested that in order to expedite things the City take a donation of the cabin and two hoists and then relocate the alley through the driveway. The City Attorney was concerned about doing a review and seeing what courses of action have been thought appropriate in these instances and which ones have not been. A true compensation package cannot be worked out by next week. There being no further comments, Mayor Seiffert closed the Public Hearing.
Councilman Young moved to table the application of Glen Black to vacate a portion of the 20 foot wide alley between Lots 1, 2, 3 and 5, 6, and 7, Block 1, Ketchum Townsite until a special meeting scheduled for Tuesday, December 29, 1987 at noon and have staff contact Mr. Neyman to see if he gives his consent to the vacation. Councilman Held seconded the motion and the vote carried unanimously.
(Emphasis added.)
Astutely, the city attorney attempted to disabuse the council members of the notion that they were at liberty to exact money or other consideration from the Blacks as a requirement of giving their votes to vacate the alley, but to no avail. The minutes of the December 29, 1987, reveal the following:
The City Attorney discussed the public alley needed for the hotel project. Glen Black made an offer to pay the City of Ketchum $5,000, donate to the City of Ketchum any salvageable material from the Amoco station, and move the old cabin to a location of the City’s choice. The City Attorney stated that Idaho law has no provision empowering cities to sell public rights of way. The City Attorney stated, however, that the City may accept donations from private individuals who receive land because of vacations of public transportation corridors.
Councilman Held expressed concern that if the hotel was not built, that Black could sell the land in parcels and the City could lose the use of the alley. Councilpersons Held and Orb suggested writing a draft ordinance between the' City of Ketchum and Glen Black____
Councilwoman Orb made a motion to vacate a portion of the 20 ft. wide alley between lots 1, 2, 3, and 5, 6, and 7, Block 1, Ketchum Townsite and direct staff to use language as approved if the alley reopens for public use____
(Emphasis added.) The February 1, 1988, council meeting continued discussion on the Blacks’ plan:
The next item of business was consideration of the Replat of lots 1, 2, 3, 5, 6 and 7, Block 1, Ketchum Townsite — Glen Black lot line removal.
The City Administrator said that Mr. Black had had a problem with Ordinance No. 471 as drafted as it tied the vacation to Design Review approval 87-C28 and Mr. Black may be considering some revisions to that approval.
Mr. Black said that he has made some revisions and he will have to go back to Design Review. He feels that there is not much point going back through Design Review if he cannot get the Council’s approval to vacate the alley first. He has connected the swimming pool to the building so that people will not have to go outside to get to it. The lobby has been moved from River Street to Main Street. The building has been stepped more to get a better profile. The end stairwell has been wrapped also to provide a better profile. The parking on River Street has been brought inside the property and a stone wall erected in front of it.
Jim McLaughlin, Mr. Black’s architect, indicated the changes on the drawings. Mr. Black indicated that the underground or covered parking will not be changed.
*314The Council was concerned about curb cuts on Main Street.
The City Administrator indicated that Mr. Black had no problems with the stipulation that the alley not be vacated until the Certificate of Occupancy is issued. Mr. Black said that he had talked to his potential lender. They had said that this is definitely a problem. If Mr. Black does not have clear title to the property before the start of construction they will not be able to consider a loan. As long as somebody else owns the land they will not be able to lend money on it. This could put the City in a bad position as Mr. Black’s partner. He felt that the City was concerned about giving up the alley and then the project not being done. He felt that the sewer bound situation he had proposed mitigated this concern. The City Administrator suggested not making the vacation effective until a Building Permit is issued.
Mr. Black felt that this might satisfy his lender. He pointed out that the City has the protection of P & Z to make sure that the alley is used as proposed.
The City Attorney said that he was concerned that the City would be doing indirectly what they could not do directly. He said that they could impose a condition that the alley be vacated only in the event that a certain structure is built which is why it should be tied to the Certificate of Occupancy. It is clear that the City cannot simply sell an alley. Mr. Black’s statements that he would post some sort of financial assurances tied to the vacation of the alley and the Building Permit rather than the Certificate of Occupancy and that he would forfeit the monies posted could be argued indirectly that he sold the alley for $100,000. Then the alley would be gone. Mr. Black suggested having his attorney work directly with the City Attorney. The Council left it that Mr. Black would go back to Design Review and the Attorneys would work something out and come back to the Council.
Councilwoman Wolford moved to table the Glen Black lot line removal until the project has been seen by Design Review and until Mr. Black’s Attorney has talked with the City Attorney. Councilwoman Orb seconded the motion and the vote carried unanimously.
(Emphasis added.) Minutes from a meeting held on February 16, 1988, are as follows:
Consideration of the Replat of Lots 1, 2, 3, 5, 6, and 7, Block 1 Ketchum Town-site — Glen Black lot line removal and consideration of Ordinance No. 471 vacating that portion of the alley running through Block 1, Ketchum Townsite, adjacent to Lots 1, 2, 3, 5, 6, and 7.
The Planning and Zoning Administrator related the Planning and Zoning Commission’s requirements regarding this issue. A rather lengthy discussion ensued between the Council, Mr. Black and citizens regarding the parking plans (diagonal vs. perpendicular), the drive through (one way vs. two way), the addition of 5 additional feet of landscaped area adjacent to the sidewalk to create a barrier between the parking area and the road and the issue of vacating the portion of the alley running adjacent to these lots.
The City Attorney related the results of his research into this issue and made some recommendations.
After this lengthy discussion, Mr. Black stated that the Council’s requirements are not acceptable and that he will postpone his plans for the time being.
(Emphasis added.)
Nothing in I.C. § 50-311 states, suggests, or even intimates that a city is entitled to any quid pro quo for performing its statutory duty on being requested by a property owner to vacate an alley, or a street for that matter. The law is the same throughout the state of Idaho. A city is not allowed to profit from performing any of its statutory legislative functions. Nor should any city official do so. Nevertheless, it is abundantly evident here that some of the council members were openly negative towards granting the Blacks a vacation of the alley unless the city obtained something in return. The Blacks full-well seeing how the wind blew, *315made the “contributions.” Thereafter the city council took appropriate actions of publishing notice and conducting a public hearing. By ordinance duly enacted by the council, the alley was vacated by Ordinance No. 471, approved on April 4, 1988.
In his presentation of the background which led up to legal action in district court, Justice McDevitt has stated as to the meeting on December 29,1987, “the Blacks offered the City of Ketchum $5,000.00, an old log cabin on the property, and any salvageable material from the service station.” At 303, 834 P.2d at 305. He also illustrates that on April 4, 1988, the “City Council unanimously adopted Ordinance 471, and that, on the same day, the Blacks signed the Estoppel Affidavit which provided that the conditions of the ordinance were acceptable to them and would not be challenged by them.” At 304, 834 P.2d at 306. To the average person the foregoing recapitulation of those events may not raise an eyebrow. Be that as it may, experienced lawyers will readily see that exchange for what it was: in return for the beneficence of the city officials in providing an ordinance vacating an alley, which is part and parcel of their official duty, the Blacks were required to “donate” the aforementioned items, including an estoppel affidavit. It was clearly a situation of no donations and no estoppel affidavit, no ordinance. True, that extortion did not put so much as an ounce of silver in any officials’ pocket, but, putting that aside, it was, nevertheless, on the part of Ketchum’s governing officialdom, not a legitimate function. Moreover, it was unconscionable conduct. The Blacks had no alternative but to accede to the official voices who wanted to know: “What is in it for the City?”
Similar unconscionable conduct was condemned by Justice Shepard in Lake v. Equitable Sav. & Loan Ass’n., 105 Idaho 923, 674 P.2d 419 (1983), where Equitable was loaning money to borrowers buying homes with mortgage money, conditioned on the borrowers “agreeing” to the inclusion of a due-on-sale clause which rendered due the entire balance of the note if the borrower was so brazen as to sell his home, no matter for what reason. To better understand “unconscionable conduct,” one should obtain the benefit derived from Justice Shepard’s views of such tactics in Lake:
I deem it important to review what is actually at issue. The lender here purports to be able to control entirely the property which stands as security for the loan. The lender, in its prepared document, forbids not only the transfer of title to the property, but also any possession thereof, by anyone other than the borrower. Insofar as the document is concerned, it governs all situations, is sweeping and all-inclusive. Taken literally, it prohibits the property owner from renting his property, from entering into a contract of sale, from making a gift, and perhaps even from a transfer upon his death. In short, the terms of the document cannot reasonably be viewed as anything but a complete and absolute prohibition upon the alienation of the property.
At bottom, the instant case reduces to a question of whether Idaho courts, exercising their equitable jurisdiction in foreclosure actions, are to be bound by the provisions of a due-on-sale clause or whether they are, depending upon the circumstances, free and able to rule that such clauses are void or voidable as a matter of public policy as being unreasonable restraints on alienation or an unconscionable advantage to a lender resulting from a contract of adhesion. Put another way, the question becomes whether that contract clause, regardless of the benefit to the lender, results in widespread and adverse consequences to the general public.
Lake, 105 Idaho at 928, 674 P.2d at 424 (emphasis in original and supplied).
Another member of the Court who was not aware of Justice Shepard’s views was meanwhile writing in a similar vein:
Almost thirty years ago two young attorneys, each with but five years of experience, confidently argued to this *316Court, then comprised of Justices Taylor, Porter, Givens, Thomas and Keeton, that penalties under the guise of liquidated damages in executing real estate purchase contracts were in fact penalty and hence against public policy and should be so declared. The confidence so placed was not in the ability of counsel, but rather confidence in that Court. That confidence was not misplaced. Graves v. Cupic, 75 Idaho 451, 272 P.2d 1020 (1954). Presented with the opportunity to rule on the practice of enforcing forfeitures or penalties against defaulting contract debtors, under whatever guise, this Court, as then constituted, was unanimous in declaring that ‘provision is for a penalty and is unenforceable,’ and ‘arbitrary and bears no reasonable relation to the damages which the parties could have anticipated____’ 75 Idaho at 459, 272 P.2d at 1025.
Today the same Supreme Court, differently constituted one may be certain, disdains the opportunity to continue with the holding and philosophy of the Graves-Cupic Court and its Graves-Cu-pic doctrine which has not been followed for thirty years.
The contractual provision which is here at issue is readily comprehended. It allows the lender at its whim and fancy, to exact the penalty of increasing the interest rate by two percent in any event where the borrower does anything with his property other than remain in it. Ostensibly it is aimed primarily at sales subject to existing encumbrances, but its sweep is unlimited. Such provisions were unknown in the day of Graves v. Cupic, but there should be little doubt in the minds of anyone but that the five justices above named would have made short shrift thereof. Not only do times change, but courts change. Nonetheless, courts leave behind them the case law which they have made. I had always thought, until recent years at least, it was as incumbent upon supreme courts, as it is on district courts and magistrate courts, to adhere to case law, or overrule it.
It takes little reflection to see that the provision allowing the lender to unilaterally raise the interest charge two percent upon a transfer of the security real estate is nothing but a penalty. On the face of the instrument is nothing whatever attempting to justify the provision. It is facially an arbitrary provision, an unconscionable penalty. Applied it is an unconscionable penalty, capriciously inserted in the instrument, not bargained for, and arbitrarily imposable. The California Supreme Court in a case which is somewhat a hybrid of Graves v. Cupic and this case held unanimously:
‘We believe, however, that whatever dangers of this nature might be deemed to exist in the abstract, they do not justify the blanket restraint on alienation which the automatic enforcement of “due-on” clauses with respect to installment land contracts would involve. It is to be emphasized in this respect that in the case of the installment land contract the vendor retains legal title until the purchase price has been fully paid. Thus in the normal case the vendor, having received a small down payment and retaining legal title, has a considerable interest in maintaining the property until the total proceeds under contract are received; in this he differs markedly from the vendor of property where there has been an outright sale.
‘It is true, of course, that from the point of view of the holder of the first lien, this interest of the trustor-vendor in the maintenance of the subject property cannot be fully equated within the interest of the trustor-vendor who himself remains in possession. It is also true that the former type of interest tends to decrease as the vendee’s equity in the property increases through continued payments. But these factors do not in themselves justify the oppressive restraint on alienation which would result from automatic enforcement of the "due-on” clause whenever an installment land contract affecting the security is entered into.
*317‘For the foregoing reasons we hold that a “due-on” clause contained in a promissory note or deed of trust is not to be enforced simply because the trustor-obligor enters into an installment land contract for the sale of the security. Rather, in such a case the clause can be validly enforced only when the beneficiary-obligee can demonstrate a threat to one of his legitimate interest sufficient to justify the restraint on alienation inherent in its enforcement.
Lake, 105 Idaho at 931-32, 674 P.2d at 427-28 (emphasis in original).
In retrospect, one would like to think that when Shepard, J. and Bistline, J. were both of the same mind, that the other members of the Court might pause to consider carefully before joining or remaining with a contrary opinion.
B. A Short Course on Idaho Code § 50-902, and Constitutional Law.
It is well established that the title of an ordinance has been deemed of utmost importance, and that the text of the ordinance must not go beyond the encompassment of the title. Idaho Code § 50-902 in clear language provides, “In preparation, passage and publication, ordinances shall contain no subject which shall not be clearly expressed in the title.’’ (Emphasis added.)7 Over and above the legislative provisions of I.C. § 50-902, there are, of course, even stronger admonitions, i.e., the mandatory provisions of art. 3, § 16 of the Idaho Constitution:
§ 16. Unity of Subject and Title. — Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.
As is readily observed, there is considerable language in Ordinance No. 471, which does not appear in the title. The title contains only this, and nothing more:
ORDINANCE NUMBER 471
AN ORDINANCE OF THE CITY OF KETCHUM, BLAINE COUNTY, IDAHO, VACATING THAT PORTION OF THE ALLEY RUNNING THROUGH BLOCK 1 ADJACENT TO LOTS 1, 2, 3, 5, 6, AND 7, THEREOF, AS SHOWN ON THE PLAT OF THE ORIGINAL TOWNSITE OF KETCHUM; AND, ORDERING CONVEYANCE TO ADJACENT PROPERTY OWNER; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVINGS AND SEVERABILITY CLAUSE; AND, PROVIDING AN EFFECTIVE DATE.
BE IT ORDERED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF KETCHUM, BLAINE COUNTY, IDAHO ...
Turning to Section 1 of the ordinance, and removing therefrom the extraneous language which is foreign to the title and purports to attach a condition to the ordinance, it is clearly apparent that certain of the language therein contained is void per art. 3, § 16 of the Idaho Constitution and per Idaho Code § 50-902. With the void language removed, Section 1 reads:
SECTION 1. That upon the Ketchum City Council having obtained the written consent to said vacation from the property owners adjoining said portion of the alley running through Block 1 of Ketchum Townsite adjacent to Lots 1, 2, 3, 5, 6, and 7, thereof, and having held a public hearing before the Ketchum City Council upon notice as required by law, it is found by the Ketchum City Council to be in the best interest of the City of Ketchum and for the public good and *318convenience; ... that said portion of said alley hereinafter described be vacated; that no damage results to any adjoining property owners or anyone else; that ... there is no need for said portion of said alley as a public thoroughfare as properties on all sides of said alley have access from a public street or streets; that said alley has never been opened, improved or maintained within the platted right-of-way by the City of Ketchum and to do so would be unnecessary; and, that vehicular circulation in the vicinity is in no way affected by said vacation.
Section 2 of Ordinance No. 471, with the void language removed therefrom by application of the same constitutional and statutory provisions, is narrowed to the following:
[T]he portion of the alley running through Block 1, as shown on the Official Plan of the Original Townsite of Ketchum, Idaho, being more particularly described as the one hundred sixty-five feet (165' in length and twenty feet (20') in width of said alley adjacent to Lots 1, 2, 3, 5, 6, and 7, Block 1, Official Plat of the Original Townsite of Ketchum IS HEREBY VACATED.
Section 3 in its entirety is void because it is not in the slightest encompassed in the title of Ordinance No. 471. Moreover, it appears that, as to any supposed reversion of the alley coterminous with the specified seven lots in Block 1, Ketchum Townsite, such would enure to the benefit of the Blacks. Their ownership of the lots is unquestioned.
“SECTION 4. REPEALER CLAUSE. All ordinances of parts thereof in conflict herewith are hereby repealed.” Section 4, may not be constitutionally void, or statutorily infirm, because it does appear in the title of the ordinance. However, it is not seen that the city places any reliance upon Section 4’s declaration that “all ordinances or parts thereof in conflict herewith are hereby repealed,” such ordinances or parts thereof being wholly unspecified, undesignated, and unknown. Section 4 is a nullity and of no consequence in this litigation. The defendants did not place any reliance on Section 4 in the skirmishes which took place in the trial court.
SECTION 5. SAVINGS AND SEVER-ABILITY CLAUSE. If any section, paragraph, sentence or provision hereof or the application thereof to any particular circumstances shall ever be held invalid or unenforceable by a Court of competent jurisdiction, such decision shall not affect the remainder hereof, which shall continue in full force and effect and applicable to all circumstances to which it may validly apply.
(Emphasis added.) Section 5 is a literary gem, the likes of which are seldom seen. Section 5 recognizes the probability that there are contained in Ordinance No. 471, sections, paragraphs, or provisions which may be held invalid or unenforceable by a Court of competent jurisdiction. Apparently no such circumstances materialized in the controversy as decided by the trial court in ruling on cross-motions for summary judgment.
Section 6 states with specificity: “EFFECTIVE DATE. This ordinance shall become effective upon its passage, approval and publication according to law. Passed by the Ketchum City Council and approved by the Mayor this 4th day of April, 1988.” The ordinance was approved under the signature of mayor Lawrence J. Young, and attested to by city clerk Betty A. Coles. That ordinance was effective on passage. Therefore, by operation of law, I.C. § 50-311, the ownership of the alley devolved unto Glen and Peggy Black.8 All of the ultra vires terms and conditions inserted into the ordinance are, by virtue of the Idaho Constitution, rendered void. That which is void is of no legal effect, or, more simply, it isn’t there.
Administration of justice is the goal of this Court. It has taken the appropriate action today in reversing and remanding this cause to the district court.
. The judgment was invalid because it was not just incorrect, it was wholly unsubstantiated by any ratio decidendi, and hence erroneous in its succinct entirety. Moreover, there was not a trial as such, the parties apparently being agreeable to submitting the cause for a final decision on cross-motions for summary judgment. Thus the trial judge was deprived of any opportunity to consider the credibility of witnesses by observations of demeanor and candor. Neither party demanded a jury trial.
The amended complaint of the plaintiffs was filed on December 3, 1990; the answer was filed on January 29, 1991, together with the defendants’ motion for summary judgment and the supporting affidavit of the city planner for the city of Ketchum with attached exhibits “A” through "F.” Exhibit “C” is a copy of the Blacks’ signed estoppel affidavit and “D” is a compilation of the minutes of council meetings on December 21, 1987, December 29, 1987, January 18, 1988, and February 16, 1988.
. Nowhere in what has heretofore been written by the trial court or by this Supreme Court has there been any mention that Mr. & Mrs. Black were not merely fortune hunters bent on striking a bonanza. One gets the impression from reading the city council meeting minutes that such is a concern of some members, or perhaps, a mixed feeling of regret on the part of persons who, in retrospect have come to regret not having beaten the Blacks to the punch, or that the Blacks cannot accomplish their goal. The clerk’s record clearly displays that the Blacks were issued a $2.5 million letter of credit by a reputable bank for financing this project.
. That mandatory direction of the legislature to city governments is not new at all, but has been in the books since statehood. Idaho Revised Code of 1908, § 2276, at page 954, provides in its final sentence, "Ordinances shall contain no subject which shall not be clearly expressed in their title, and no ordinance or section thereof shall be revised or amended unless the new ordinance contain the entire ordinance or section as revised or amended, and the ordinance or section so amended shall be repealed.” It was first enacted by the laws of 1893, § 79, at page 97.
. Contained in I.C. § 50-311, is this language: “Provided further than whenever any street, avenue, alley or lane shall be vacated, the same shall revert to the owner of the adjacent real estate, one-half (V2) on each side thereof____”