Swain v. Fritchman

AILSHIE, J.

This action was instituted in the district court by the plaintiff as a taxpayer against the mayor and members of the common council of Boise City, to enjoin and restrain them from holding a city election under and in pursuance of a proclamation issued by the mayor on March 4, 1912, which proclamation was made in pursuance of the provisions of the act of the legislature, approved March 13, 1911 (1911 Sess. Laws, p. 280), known as the Black Law or the commission government act. The trial court denied the application, and the plaintiff has appealed.

In addition to counsel who represent the respective parties to this action, Gustave Kroeger, H. S. Kessler and Frank Martin, as amici curiae, appeared and were allowed to make oral argument and submit a brief in support of the judgment of the lower court; and McCready Sykes appeared and made argument and filed a brief as amicus curiae in behalf of the appellant.

Amici curiae have raised the point that the appellant does not show such interest as to enable him to maintain an action to enjoin the holding of an election, — that the question involved is a purely political question, and a taxpayer as such has no individual or personal right to maintain an action to restrain or enjoin the exercise of the political power of the municipality. In support of this position, counsel has cited the court to the case of City Council of McAlester v. Milwee (Okl.), 122 Pac. 173; 2 Joyce on Injunctions, pp. 2033-2037; 22 Cyc. 885. In view of the public importance of having the questions raised in this case decided, and for the further reason that this question was not raised in the trial court, we have concluded to reserve, our judgment on the point raised and pass directly to a consideration of the merits of the ease.

1. It is contended that the act of March 13, 1911, known as the Black Law or commission government act, is void, for the reason that it was not passed by the legislature in accordance with the requirements of sec. 13, art. 3 of the constitution. The particular defects and failure to comply with the provisions of the constitution urged by appellant are as follows: After the bill (H. B. No. 233) had been introduced and. given the first and second readings and referred to the appropriate committee, we find from the house journal that on February 25th the “committee of the whole” made the following report to the house: “The committee of the whole has had under consideration the general calendar and recommend that the amendments to the following house and senate bills be adopted: Nos. 129, 314, 268, 83, 378, 191, 379, 233, 171, 149, 372, 287, 162, 251, 327, 430, 354, 297, 86, 296, and 342 and senate bill No. 150 .... ” Upon the filing of this report, the journal shows that “Black moved the adoption of the report. Seconded by Davis. Motion carried.” It is contended that the house by this action attempted to adopt amendments in omnibus form by viva voce vote to twenty-two house bills and one senate bill, and that no single amendment is given, and that no separate action was taken on each bill, and that such a'procedure is fatal to each and every bill thus attempted to be amended. The foregoing action, as we view it, was merely the acceptance of the. report of the committee. It was evidently not considered as the final action on each separate bill in reference to the particular amendment proposed to such bill. We find further along in the journal entries of the proceedings of the same day, February 25th (House Journal, p. 437), where Black moved a “suspension of the rules and that that portion of sec. .15, art. 3 of the constitution requiring a reading of bills on three several days be dispensed with on the ground that an urgency existed and that amendments to House Bill No. 233 having been printed be read the first and second times and referred to the engrossing committee with the original bill.” This motion was adopted by an aye and nay vote. The journal further recites that “amendments to H. B. No. 233 were then read first and second times and with original bill referred to the engrossing committee and ordered engrossed.” This entry shows that the amendments had been printed before being read the first or second time. It was unnecessary to suspend the rules or the provisions of the constitution for the first reading. The motion to suspend the rules and the provisions of the constitution with reference to reading on three several days was properly made and carried, and afforded the constitutional authority for giving the amendments a second reading on the same day as the first reading. It is contended that these amendments must not have been printed until after the passage of the bill, for the reason that the journal entry of February 28th (House Journal, p. 482) contains a report of the committee on printing wherein they say, “Your committee on printing herewith report that we have had correctly printed and distributed the following: Amendments to House Bills Nos. . . . . 233 .... ” This entry, however, is not contradictory to or in conflict with the entry of February 25th, which recites that the amendments had been printed at the time they were given the first and second readings. The committee report does not show when the committee had the amendments printed and distributed, nor does it show when the report of the printing committee was made. It is not dated, but it was presumably filed with the clerk of the house on February 28th, and for that reason was entered in the proceedings of that day. Taking the two entries together, the one of February 25th and the one of February 28th, it is reasonably certain that the amendments had been printed and distribnted among the members on or prior to the 25th, and that the printing committee’s report thereon did not find its way into the journal until the 28th. Appellant contends, further, that the journal affirmatively shows that the bill was never given a third reading as required by the constitution. This contention is based upon the fact that the journal shows, under date of March 1st (House Journal, p. 522), that “House Bill No. 233 by Black read a third time at length section by section, for final action. The question being, ‘Shall the bill pass,’ the roll was called with the following result: .... and so the bill passed, title was approved, and House Bill No. 233 was ordered transmitted to the senate.” A subsequent entry in the journal under the same date reads as follows: “We, your committee on engrossed and enrolled bills, report House Bill No. 233 .correctly engrossed. Glennon, Chairman: Report received and H. B. No. 233 filed for third reading.” Now, the fact that this entry appears in the journal after the entry showing the passage of the bill affords no evidence that the bill had not Been previously given a third reading and passed by an aye and nay vote as recited by the previous entry of the same day. It is probable, however, that the report was in fact made and the engrossed bill was filed prior to the third reading and passage of the bill and that the journal clerk got the order reversed in making his entries. This bill as shown by the foregoing entry was transmitted to the senate on March 1st. The senate journal of March 2d, among the first entries of the day, contains a message from the chief clerk of the house transmitting House Bill No. 233. It is clear, therefore, that this bill was engrossed on March 1st as shown by the house journal, and that it was transmitted to the senate on that day and noted among the senate proceedings of the following day. It is immaterial for the purposes of our consideration whether the bill was engrossed prior or subsequent to the third reading. We would ordinarily suppose that the bill was engrossed after its final passage preparatory for the signatures of the presiding officers of the house and senate and the approval of the governor, but an examination of the journal with reference to this and other bills passed at the same session indicates to us that it was the practice of the house of representatives to refer a bill immediately after its second reading to the engrossing committee and order that it be engrossed. (House Journal, p. 438.) This bill had been transmitted to the senate, as shown by the above quotation from the journal, and we find that under date of March 3d (House Journal, p. 554), the journal shows a message from the assistant secretary of the senate in which he says he transmits “therewith .... House Bills Nos. 94, 233 and 376 which have passed the senate.” According to the wording of this message with reference to other bills, it would appear that House Bill No. 233 had passed the senate without amendment. The senate journal, pp. 320 and 325, shows that the bill was in fact passed in the senate on March 3d and transmitted to the house.

Now, we have the following things appearing clearly from the house journal entries: First, that amendments to the bill were recommended by committee of the whole; second, that these amendments were printed before they were given a first reading; third, that the rules and the provisions of the constitution were suspended with reference to the second reading; fourth, that the bill was read at length and passed by an aye and nay vote and thereupon transmitted to the senate; fifth, that the senate passed the bill as it came from the house and returned the saíne to the house. The house journal again, under date of March 4th (House Journal, p. 619), contains a report from the committee on engrossed and enrolled bills, réporting House Bill No. 233 as having been correctly “enrolled,” and immediately following this entry the journal shows that “the speaker in the presence of the house signed the following bills .... 233.”

We fail to find wherein the legislature in the passage o£ this act has departed in any substantial manner from the method prescribed by the constitution for the passage and enactment of bills. It seems to us that the journal entries show a substantial compliance with the provisions of see. 13, art. 3 of the constitution. It also complies with the holdings of this court in Cohn v. Kingsley, 5 Ida. 430, 49 Pac. 985, 38 L. R. A. 74, and Tarr v. Western Savings & Loan Assn., 15 Ida. 751, 99 Pac. 1049, 21 L. R. A., N. S., 707. It is true ihat the court indulged in considerable dicta in the Cohn-Kingsley case which was in no way essential to the decision of that case and to which we would not feel disposed to give our approval, but we would not be inclined at this time to depart from the general rule there enunciated that the court may look to the journal. It would certainly be a remarkable and appalling situation if in the rush, hurry and turmoil of the closing hours of a legislative session a purported bill could be engrossed, certified and filed with the secretary of state and become a law which in fact had never passed the legislature nor been considered by it, and the journals clearly established that fact, and yet there should be no remedy whereby the fraud or mistake could be reached and the purported act could be prevented from going into force and operation as a law. If courts cannot go behind the enrolled bill, this would be the exact situation, and yet the case supposed has actually occurred in this state. A bill was enrolled, certified and filed with the secretary of state as a valid act of the legislature where the legislative journals showed affirmatively that the bill had been defeated instead of passed.

2. It is next contended that the Black Law or commission government act is void and inoperative as to a special charter city, and cannot be applied to or be put in operation in such a city, for the reason that the general laws of the state applying to municipal corporations do not apply to such cities, and that the commission government act is not a complete city government act and does not purport to be such, and that therefore a special charter city adopting' such act will be left without any complete or adequate law or authority for administering city government and discharging municipal duties and obligations. This argument is based chiefly upon the provisions of sec. 1, art. 12 of the state constitution and sec. 3 of the act here in question. (1911 Sess. Laws, p. 284.) Sec. 1, art. 12, of the constitution provides as follows:

“The legislature shall provide by general laws for the incorporation, organization and classification of the cities and towns, in proportion to the population, which laws may be altered, amended, or repealed by the ■ general laws. Cities and towns, heretofore incorporated, may become organized under such general laws, whenever a majority of the electors at a general election, shall so determine, under such provisions therefor as may be made by the legislature. ’ ’

In Kessler v. Fritchman, ante, p. 30, 119 Pac. 699, this court, in discussing the same question here involved and considering the foregoing provisions of the constitution, said:

“Under the constitution the legislature is clearly authorized to classify towns, cities, and villages of the state according to the population, and while the legislature by general laws has made a classification of cities, tpwns, and villages, this would not preclude or prevent the legislature in enacting the law now under consideration, and the reclassification of cities, towns, and villages as cities, according to population, as a prerequisite to adopting the form of government provided in the act now under consideration.”

Without further comment on this constitutional provision, suffice it to say that we are still content with our holding to the effect that the act of March 13, 1911, known as the commission government act, is not in conflict with this section of the constitution, and 'it was within the power and authority of the legislature to enact the same.

See. 3 of the act in question provides as follows: “All general laws of the state of Idaho governing or pertaining to such cities and not inconsistent with the provisions of this act, shall apply to and govern cities organized under this act; Provided: That no provisions of any special charter or other special act or law which any such city may be operating under at the time of its becoming organized under this act, shall thereafter be applicable to such city while it is operating under the provisions of this act.”

Now, it is contended by counsel for appellant that the word “such” as used in the foregoing statute refers to the particular city adopting the new form of government, and that since a special charter city is not governed by any general laws or any laws other than the special charter, the act cannot therefore apply to such cities. It should be borne in mind that this act specifically provides “that no provisions of any special charter or other special act or law which any city may be operating under at the time of its becoming organized under this act, shall thereafter be applicable to such city while it is operating under the provisions of this act.” This shows clearly that it was intended that the act should apply to special charter cities, and renders it reasonably certain that the word “such” in the preceding portion of the section cannot mean what is contended for it by appellant, but, on the contrary, means a city of like size under the “general law” classification. It should also be remembered that sec. 1 of the act specifically provides that it shall apply ,to “any city within the state of Idaho organized under special charter or under a general incorporating act,” etc. It is reasonable and fair, therefore, to conclude that the words “such cities” as used in this act mean cities of the class to which the one adopting the new form of government would legally belong under the general laws of the state, because it is referring to the general city incorporation laws of the state. (Kessler v. Fritchman, ante, p. 30, 119 Pac. 699.) - It is not our business as a court to deal in any subtle refinements in construing legislative acts, but it is rather our duty to ascertain, if possible, from a reading of the whole act the purpose and intent of the legislature and give force and effect thereto.

The question next arises as to the class to which Boise City would properly belong under the general laws of the state. Sec. 2222 of the Rev. Codes provides as follows: “Any town or village containing not less than two hundred nor more than one thousand inhabitants, now incorporated as a city, town or village, under the laws of this state, or that shall hereafter become organized pursuant to the provisions of this title, and any city of the second class which shall have adopted village government as provided by law, shall be a village.....” This section then provides that at the time of its adoption all towns or villages then incorporated containing not less than 200 nor more than 1,000 population should thereafter be known as villages and be governed by the statutes prescribing the authority, powers and duties of village governments. It also provided that any town or village containing a population of not less than 200 nor more than 1,000 might at its pleasure become incorporated under the provisions of the village government act. The act, however, contains no provision prohibiting such a village from continuing to exercise the powers and authority of village government merely.by reason of its growth exceeding the maximum population of 1,000, nor did it provide any compulsory process or method whereby such a village should be compelled to take on any new or different form of government upon reaching the maximum population of 1,000. Sec. 2170 of the Rev. Codes provides as follows:

“All cities, towns and villages containing more than one thousand and less than fifteen thousand inhabitants shall be cities of the second class, and be governed by the provisions of this chapter, unless they shall adopt a village government as hereinafter provided.”

It will be noticed from this section that all cities, towns and villages containing more than one thousand and less than fifteen thousand inhabitants become cities of the second class. Now, the legislature at the time of the adoption of the foregoing statute failed to make any specific provision for the classification, organization or government of cities with a population in excess of 15,000. This was probably due to at least two reasons: First, that the state did not at that time have any city organized under the general laws with a population of 15,000; and, secondly, the lawmakers probably intended that in the event any city should grow to that size, it could and should continue to exercise the powers and functions of a city of the second class. It is certain, at any rate, that they did not provide any other form of government or any other class for a city of greater population, nor did they anticipate that a city should become disorganized or disincorporated by reason of a growth which might cause its population to exceed 15,000. The same laws that were made applicable to govern such a city when it reached a population of 15,000 would be equally applicable when it reached a population of 15,100. Now, then, we find that Boise City, at the time it voted to suspend its charter and adopt the commission form of government was a city with a population in excess of 15,000. The question, therefore, arises: To what class would Boise City have belonged if it had been organized and operating under the general laws as they then existed ? The answer is inevitable, that it would have been a city of the second class and would have belonged in that class. That was the highest class city known to the general laws of the state, and the laws applicable to cities of the second class would have been applicable to Boise City had it not been operating under a special charter. It will be no more difficult now for the officers of Boise City, acting under the commission government act, to ascertain what the general laws are governing'a city of the second class than it would have been for the officers of Boise City had it been operating under the general laws of the state as a second class city at the time it voted to adopt the commission form of .government. Under the provisions of sec. 1 of the act, there are only two kinds of cities that can become incorporated under the commission government act. The first is a city of the second class as the same had been previously known under the general laws of the state (sec. 2170), and the second was a city operating under a special charter, and each of these cities, the one recognized and protected by the constitution and the other organized and classified by the general laws of the state, was subject to the classification applicable to both under the Black Law that they should have a population of at least 2,500 before they could enter the new classification and adopt the provisions of the new government act. (See State v. Tausick, 61 Wash. 69, 116 Pac. 651.)

There might be some good reason for the argument of counsel for appellant that there is uncertainty or obscurity in the act as to what general or other laws aside from the commission act should govern such cities, if it were not for the fact that sec. 3 specifically provides that no provisions of a special charter shall apply after a special charter city has adopted the new organization. If such a city is not to apply any of the provisions of its special charter, then .it is clear that the 'legislature intended that it should apply the provisions of the general law applicable to a city of the class to which it did belong or would have belonged under the general laws. (Kessler v. Fritchman, ante, p. 30, 119 Pac. 699.)

3. It .has been further argued that the submission of the question to the electors of Boise City was not in conformity with the requirements of sec. 1, art. 12, of the constitution, wherein it provided that cities and towns organized prior to the adoption of the constitution might become organized under the general laws when a “majority of the electors at a general election shall so determine under such provisions therefor as may be made by the legislature.” Counsel argue that the question should be directly submitted to the electors as to. whether they will suspend or surrender the special charter of such city. The question submitted to the electors of Boise City under the commission government act was as follows: “Shall the proposition to organize the city of Boise under the laws of the eleventh session of the legislature of Idaho, approved March 13, 1911, and recorded at page 280, the Session Laws of said eleventh session, be adopted 1” It is not to be supposed that any elector, voting for the adoption of the new form of government, believed for a moment that the city was going to continue under the special charter if the new form of government should be adopted. The question would at once arise in the mind of the citizen when he came to voting on such a proposition as to whether he was getting something better or worse, and whether he should vote to retain the charter or would favor adoption of the new form of government. It should be observed that the constitution does not require the legislature to submit the question in any particular form, nor does it say that the vote shall be on the question of abandoning the charter, but it is rather on the question of becoming “organized under the general laws,” and the submission of the question is to be determined by the legislature “under such provisions therefor as may be made by the legislature.” The Black Law is a general and not a special law, and applies equally to all cities of the state having the required population that see fit to adopt its provisions by a popular vote.

4. It is lastly argued by counsel for appellant and also by one of the counsel who appears as amicus curiae, “that the so-called Black Law, chap. 82 of the Laws of 1911, is in flagrant violation of the provisions of the federal constitution^ prohibiting the passage by the legislature of any law impairing the obligation of contracts.” Counsel who appears as amicus curiae has filed a very able brief, setting forth in detail his objections to the Black Law and the particulars wherein he thinks it impairs the obligations' of the city in regard to its bonded indebtedness. It is stipulated that the city at the time it voted to adopt the commission form of government was indebted and that such indebtedness was evidenced by its coupon bonds. It is doubtful if this question can be properly raised by the appellant herein, but, notwithstanding any doubt there may be, we have concluded to waive any consideration of the manner and form in which this phase of the question has been presented and deal with it on its merits.

The vital question urged is that under the bonding acts special provision is made for the levying and collection of an annual tax for the payment of interest and raising a sinking fund for the final redemption of the bonds, and that these provisions became a part of the contract under which the city sold the bonds, and that they are impaired by the adoption of this new form of government, for the reason that the commission government act contains no provision for levying and collecting a tax to meet these obligations. It is further argued that the commission government act provides a method whereby all ordinances may be submitted to a popular vote, and that, although the city council might make a tax levy or be compelled by the courts to make such levy, still the people might refuse to cast a favorable vote, and there would be no method whereby a levy could be enforced and a tax could be raised to meet these obligations.

There are several reasons which to our minds satisfactorily answer these contentions. In the first place, it is a well-settled rule in this country that these municipal bond issues create contract obligations, and constitute a contract between the municipal corporation and the purchaser of the bonds. It is equally true that the remedies given by law for the enforcement of these contracts and the levying and collection of taxes to meet such obligations cannot be altered or diminished so as to impair the substantial rights or interests of the holder of such obligations. (Von Hoffman v. City of Quincy, 4 Wall. (U. S.) 535, 18 L. ed. 403; see notes and citations, 6 Notes to U. S. Rep. 632, and note, p. 706, 1 Supp. U. S. Notes.) If, therefore, the act here in question attempts to repeal the remedy given the bondholder by the ‘ ordinances which authorized the issuance of the bonds and provided for the levy and collection of a tax, and does not give to the bondholder instead thereof a substantial, equivalent remedy, the act would in so far be unconstitutional and void. When we turn to the act itself, however, we find that it was clearly not the intention of the legislature to in any way alter or impair the obligation of the city in this respect but rather to continue those obligations in full force and effect. We find in sec. 3 of the act the following provision: “All rights and property of every description which are vested in any such city under its former organization shall vest in the same under the organization herein contemplated, and no right or liability, either in favor of or against it, existing at the time, and no suit or prosecution of any kind shall be affected by such change, • and such city .... shall be subject to all the duties, obligations, liabilities and limitations now or hereafter imposed upon such municipal corporations by the constitution,” etc. It is also provided by sec. 3 that all existing ordinances shall remain in force under the new government until altered or repealed. It is therefore clear that so far no attempt has been made to impair or repudiate the obligations created by Boise City. Under the foregoing provision, we think the bondholders have the same rights and remedies that they have always had for the collection of their bonds, and that the commission government act was never intended to in any way alter, change or impair those obligations.

Now, let us answer the contention made with reference to the referendum submission of a tax levy ordinance. An examination of the different provisions of the statute as embodied in sees. 25, 26, and 74 convinces us that it was the intention of the legislature to exclude “ordinances making the annual tax levy and appropriations” from the operation of the referendum provision (sec. 74, p. 313, 1911 Sess. Laws). Sec. 25 provides for the submission of any ordinance to a vote of the people, provided a proper petition therefor is filed with the clerk “prior to the date when any ordinance shall take effect”; and sec. 26 provides that the council of its own motion may submit any proposed ordinance or measure to a vote of the people in the same manner and with the same force and effect as a question is submitted on petition. When we turn to sec. 74, prescribing when ordinances shall go into effect, we find the following: ‘ ‘ Ordinances making the annual tax levy and appropriations shall take effect immediately upon their passage. Ordinances granting franchises of any kind shall take effect not less than thirty days after their passage aud approval. All other ordinances enacted by the council shall take effect not less than ten days after the date of their passage, ’ ’ etc. As above noted, see. 25 requires a referendum petition to be filed with the clerk before the date when the ordinance shall take effect. It is therefore clear that it could not have been the intention of the legislature that ordinances making the annual tax levy and appropriations should be submitted to a referendum vote. No possible method is provided for securing a petition touching such an ordinance until after it would be in effect. It seems to us that it must have been the intention of the lawmakers that ordinances making the annual tax levies and appropriations should not be submitted to a referendum vote. On the other hand, the people are given a certain length of time in which to procure petitions with reference to all other ordinances, namely, at least thirty days for ordinances granting franchises, and at least ten days for all other ordinances.

No sufficient or valid objection has been called to our at- • tention to justify us in holding the act in question invalid or unconstitutional. It follows that the judgment should be affirmed, and it is so ordered. Costs awarded in favor of respondent.

Stewart, C. J., concurs.