*1
U.S.
92 S.Ct.
from an order a motion to dismiss Buersmeyer, E. Jensen, Joy and Glen information, non-appealable order un individually their offi Selander, and in Furthermore, der I.A.R. 11. the defendant duly elected officials capacities as cial has now been mental acquitted by reason of County Boise; The of the disease or charges defect of the contained in the State Ada, political subdivision information, this matter rendering thus Emery, Gary Idaho; Bermeoso Vern moot. appeal is dismissed. Accordingly, individually Gratton, and lo, William and 394, 100 Cf. Kifer v. No. School Dist. capacities as Ada Coun in their official (1979) (Supreme Commissioners; City Eagle, mu ty jurisdiction appeal without to hear Wayne Kid corporation; and nicipal summary judgment properly not certified well, Attorney of the State General Stiner, appeal); White v. Defendants-Respondents, Idaho, (1922) (where juris 209 P. has no non-appealable pri- diction over order under rule, dismissed). appeal should be and
Appeal dismissed. WILLIAMS, Plaintiff Dave DONALDSON, C.J., and SHEPARD Intervention, HUNTLEY, JJ., concur. BISTLINE, Justice, specially concurring: concurred, I have counsel believe that BOISE, municipal corporation; CITY OF I, disappointed, will be as am that footnote Eardley, McAdams, Ralph Richard R. J. 1 of the its central opinion Court’s not Kopke, Marge Ewing, Fred L. Berne K. appellant per-
theme. Counsel for has Jensen, Joy Buersmeyer, E. and Glen obtaining formed the dis- commendably Selander, individually trict court order in the footnote. in their offi- detailed order; I approves The Court implicitly capacities duly cial elected officials Either I would expressly approve way, it. Boise; County of under- hope that the trial bench and bar Ada, political subdivision of the State on I.C. saving gloss placed stand that a Idaho; Emery, Gary Vern Bermeoso- opinion and that this Court’s lo, Gratton, individually and William value gives precedential decision capacities as Ada Coun- their official throughout Idaho. Commissioners, Eagle, ty City of a mu- Kidwell, Wayne nicipal corporation; At- HUNTLEY, J., concurs. Idaho, torney of the State of General Intervention, Defendants in
NORTHWEST BOISE NEIGHBORHOOD INC.,
ASSOCIATION, corpora an Idaho tion, Respon Plaintiff in Intervention-
dent, CITY, municipal CITY OF GARDEN corporation, Defendant Appellant,
Intervention - Williams, individual, Dave Defendant in Intervention.
No. 13648. Supreme Court of Idaho.
March 1983. Mauk, Boise, William L. for appellant Upon concluding negotiation phase, City Garden City. objected adjustments County, recommended Ada and thereaft- Moore, Lewiston, Michael respon- C. er instituted this requesting action dent of Boise. adjust district court Boise’s area of Harris, James Boise, C. for respondent lying to eliminate those areas within the County. Ada City’s proposed boundaries of Garden im- *3 pact area. Stanley W. Welsh and Fredric V. Shoe- maker, Boise, respondent for City Eagle. of pending, In while this action was the amended I.C. 67-6526 § Gen., Leroy, David H. Atty. respon- for eliminating district as a recourse to dent of State Idaho. settling of area overlapping impact means Hoidal, Boise, Ernest A. for respondent disputes. act if provides any The now that Northwest Neighborhood Ass’n. objects adjustment to the recommenda- city special tions of county the commissioners a HUNTLEY, Justice. sixty election be shall conducted within for to the days purpose submitting the of This action involves County Ada qualified residing overlap- electors the three of municipalities, Boise, its Garden ping impact area the determination City Eagle. The un- controversy arose which of to be city’s impact they area wish der Idaho’s Planning Local Act of provides included. The amendment further Chapter Title Idaho Code. Pursuant the of conclu- that results the election are 67-6526(c) act, to I.C. govern- the binding any sive and appeal. without ing city required board each on or 1, 1978, before January adopt by ordi- 25, 1979, On June Boise filed a motion map nance a identifying city the area of compel pursuant election to the statute as impact within the unincorporated areas submis- Following hearing amended. Ada County. object require- by parties, sion of briefs the the trial court ment was to delineate con- areas future and'order, issued memorandum decision tiguous growth in order to assure their or- dismissing entirety the case in its for want derly development and thereby po- reconcile jurisdiction. tentially competing for designs boundary are: presented appeal The issues on this expansion accepted with use planning land principals. (1) the amendment to the Whether city impact provision area of of the Local city The areas of impact adopted the Planning substituting special Act election conflict; cities three the ordinances (were in lieu of action as declaratory judgment city of each impact resulted in overlapping impact adjusting overlapping a means of area boundaries. The planning local act applied retroactively. areas be made provision for settlement in such even- tuality. step, provided As a first it for (2) the 1979 amendments Whether negotiation between the cities. In the provisions area of of the Local Plan- negotiations failed, event step the second ning Act are in violation Constitution provided for reference to Board of the State of Idaho. which, County Commissioners after consult- (3) Whether substitution of the electoral cities, ing the recommend affected was to plan- process resolving as a means of local adjustment. any objected If dele- ning disputes constitutes unlawful county recommendations, commissioner’s gation police powers. provided then the act the city object- (4) court erred in ing Whether district declaratory could “seek judgment failing constitutional adjusting the district court to address other areas impact.” of city City. Garden issues raised amending
I In I.C. § municipali- power modify its exercised Generally ap statute will not substituting the electoral ty’s powers plied retroactively in of clear the absence ac- judgment the declaratory process legislative intent to 73- that effect. I.C. § tion. Stoddard, 101. Johnson v. 96 Idaho (1974). However, P.2d 835 is the rule it also only
in Idaho that
legislation
retroactive
II
that which affects
exist
already
vested or
Next,
City urges
Garden
Ranch,
ing rights. Hidden Springs Trout
67-6526(c) unconsti
I.C.
amendment to
Inc., Allred,
636 P.2d
deprives
in that
both Garden
tutional
(1981);
City
Buckalew v.
in the over
property
and the
owners
Grangeville,
process
lapping impact
of due
stand
lacks
equal protection.
property
owners
ing to assert
*4
Remedial or procedural
statutes
impact
overlapping
area and
create,
which do not
or
enlarge, diminish
rights
the reasons
has no vested
itself
destroy contractual or
are
vested
I
part
set forth in
above.
generally
operate
held to
retrospectively.
U.S.,
Ohlinger
(D.C.Idaho
v.
1955). III merely “A statute affecting remedy City argues that the substitution Garden to, on,
may apply and causes of operate dele- process the electoral is an unlawful of action which had accrued and were exist- improp- it is police power, alleging of gation ing at the time of of the the enactment these mat- er have the election determine statute, well as action there- causes of City relied ters. The cases on Garden accrue, actions, after to and to all wheth- alleged uncon- proposition for this concern er commenced before after its enact- or delegation zoning power stitutional of C.J.S., 421; Statutes, ment. 82 11 Am. owners, adjoining land which circumstance Jur., Law, Constitutional 373 and §§ here. dealt with is not involved Those cases 382.” Id. land, i.e., uses consent zoning regarding of City right Garden has no inherent of a con- adjoining of landowners to obtain its own to annex property. In v. Caesar license, liquor construct permit, struction State, 517, 101 Idaho 519 building, dwelling, an multiple apartment (1980), this court stated: park. home and mobile of analysis necessarily “Our in- issue case, all In this electors within
volves a review of the basic tenets of pow impact permitted area are to vote—no municipal corporation law. Idaho has to one unconstitutionally delegated er is recognized long proposition that an limitation on neighbor to determine the corporation, municipal as a creature state, his land. possesses only other’s use of and exercises powers impliedly those either expressly or to it. ...
granted
[Citations omitted.]
IV
Thus,
rule,
corpo-
under
municipal
[the]
Finally,
City argues
Garden
may
only
powers
ration
exercise
those
failing
erred in
to address
the district court
granted
to it
either the state constitu-
in its
raised
the other constitutional
issues
tion or
and the
City
judgment action. Garden
declaratory
power
change, modify
absolute
has
Planning Act
to have the Local
sought
powers
destroy those
at
its discretion.
its entire
4,
unconstitutional in
1,
45 P.
1975 declared
v.
5 Idaho
Steunenberg,
State
462,
(1896).”
firmly
principle
ty.
It is a
established
law,
application,
action,
uniform
consti-
pending
that the
declaratory judgment
tutionality of
ques-
possibly
prohibition
a statute
as such
within the
not
1,
tioned by one who has
article
section 2 of the Idaho
voluntarily claimed
Constitu-
tion,
prohibition
within
accepted
possibly
its
arti-
benefits.
v.
City
State
19,
section
limitation of
Gooding,
governing
cle.
P.2d 655
(once commenced),
civil actions
but for cer-
Garden City
availing
itself of the benefits
provisions
tain within the
article
sec-
Planning
Local
by establishing
Act
tion 12 of the
and I.C.
Idaho Constitution1
act,
pursuant
73-101.2
cannot simultaneously contend that the act
is unconstitutional.
Massey,
relies on Cook (1923).3
Idaho
P. 1088
That case
The order of dismissal is
No
affirmed.
was the backbone of the Court’s unanimous
attorney
costs or
fees allowed.
opinion
Unity
in the rather
case
recent
Light
& Power
of Burley,
Co. DONALDSON,
BAKES,
C.J.,
J.,
con-
(1968),
wherein the
cur.
said:
“This action was instituted on August
J.,
SHEPARD,
concurs in the result.
28, 1961, when
filed
Unity
complaint;
its
BISTLINE, Justice,
Burley
dissenting.
filed its answer and counterclaim
February
on
and therein it
question
There is no
the trial
sought by its third cause of action to
initially
jurisdiction.
cloaked with
right
eminent
exercise
domain
As Judge McClintick worded it: “The broad
*5
Unity’s property.
condemnation of
Even
question presented ...
is whether
the
though
on
this case came
for trial
in
amendment
back
governs
relates
to and
this
1963, subsequent
December
to the de-
did,
case.” He ruled that
it
as a
“and
S.L.1963,
clared effective date
ch. 269
consequence
Court
jurisdiction,
the
has lost
1,
(June
1963),
right to exercise
Burley’s
this
dismissed,
case
be
the
must
issue
power
properly
domain
the
of eminent
must
be
the
procedure.”
settled
election
have been
in accord-
adjudicated
should
It is
Judge
clear from
McClintick’s memo-
with
the time of
ance
the law in effect at
randum decision that the 1979 amendment
filing of
and cross-claim.
the
its answer
special
was
legislation
the then
aimed at
reason for
conclusion is that
this
legislature
1. Article
section 12 of the
Constitu-
or
Idaho
realistic to believe that the
knew
properly
pass
tion reads as follows:
it could not
was
advised that
legislation nullifying
pending
legislature
lawsuit which
pass
a
“The
shall
no
for the
law
railroad,
predicated
existing statutory law.
corporation,
benefít of a
or
was
on
other
or
any individual, or association of individuals
context,
Augustine,
the
State v.
3.In
criminal
operation,
imposes
retroactive in its
or which
1966),
(Kan.
appears
197 Kan.
people
any county
municipal
on the
City. Therein the Kansas
state,
to sustain Garden
liability
subdivision
the
a new
in
unanimously
Supreme
in
respect
held
the con-
to transactions or considerations al-
ready past.” (Emphasis added.)
situation:
verse
corporation”
certainly
“Other
the
includes
legislative
enlarg-
which
“2. A
enactment
Boise, municipal corporation.
a
juvenile
jurisdictional age
limits of the
es
seventeen-year-
to
include sixteen-
provides:
2.
I.C. § 73-101
change
persons
a
in
male
constitutes
old
part
compiled
“No
of these
is retroac-
laws
law,
not be construed
substantive
and will
as
tive,
expressly
unless
so declared.”
having
pend-
application to cases
retroactive
Sess.Laws,
Nothing
chapter
in
ing
on the effective date
the act in the
declared the enactment
Where the
retroactive.
contrary
language disclosing
a
absence
remedy
enacting
a new
because
legislative intent.”
City-Boise litigation
of the Garden
in district
Court).
(Syllabus by
517 county-conducted4 popular a contrary clearly ap- unless a rather than intention difference, as important therein, is an pears given a statute vote. There will not the adverse by matching readily observed retrospective Massey, is effect. Cook v. 38 legislature, A.L.R. 200 intent. of the new Idaho tent remedial or 494. I.C. § it not be (1923). statute, 61-333B more than mere Am.Jur. procedural setting given demonstrated I.C. is Statutes § [220] the effective date statute; § 73-101. The retrospective P. pur- in- p. contentions is court and a good example now City of Coeur Cudahy, 104 Idaho against pending vast difference resolution jury in in d’Alene, the case of this resolution of Court. in the 656 P.2d area, Sup.Ct. arbitration. Similarly, there entitlement see Loomis Gumprecht controversy, No. For portedly change involves of substantive exercise right
eminent domain.” at at 724-25. added.)
(Emphasis Unity Neither nor were men- Light Cook tioned in trial court’s decision. It distinguish Unity
difficult to case from Light. Clearly, City, prior amendment, right had a substantive court, have the settled dispute by a district However, nearly 67-6526(c) provides adjacent per- 4. I.C. as amended not all cities in Idaho county. part: 67-6526(a)(3) tinent are in same I.C. § city impact, provides to- even “[a]reas any city objects “If to the recommendation of gether requirements, plan and ordinance with commissioners, county the board of the coun- county by agreement of cross boundaries ty sixty (60) days shall within date county city if the concerned special of the recommendation conduct a (3) adjoining county.” within miles of the three polling places election and establish for the But, provision no 67-6526 makes I.C. purpose qualified submitting *6 disputes regarding overlapping resolution of area, residing overlying impact electors county. lying in than one more question city impact of which area of presents yet problem. This another electors wish to reside.”