211 P. 1082 | Idaho | 1922
This is an action brought to obtain a judgment annulling and enjoining the enforcement of a certain ordinance of the respondent village adopted by the votes of the individual respondents as its trustees. The complaint alleges that there was in effect in said village an ordinance known as ordinance No. 36 which imposed a license or occupation tax upon practically all lines of business, made it a misdemeanor for any person to carry on any business enumerated without paying a license tax, and provided for a fine as penalty, with imprisonment upon failure to pay the fine. It further alleges that on November 13, 1919, the individual respondents, H. J. Hollingsworth, H. G. Fuller and W. L. Robinson, were charged, by complaint filed in the justice’s court, with a violation of said ordinance, as were also the First National Bank of Ask ..on, of which respondent E. Cunningham was a director, and the Consolidated Wagon and Machine Company, of whi.,n respondent William Smuin was general manager. It further alleges that on November 18, 1919/ while all of said cases were pending, the individual respondents, acting as trustees of said village, passed and approved an ordinance known as No. 89 repealing the said license tax ordinance No. 36 without a saving clause, for the avowed purpose of preventing the further prosecution of the said actions then pending. As a foundation of his right to bring this action appellant alleges that he is a resident taxpayer and elector of said village, and that there is a large amount
A general demurrer interposed by the respondents to this complaint was sustained by the court, and a judgment of dismissal entered upon appellant’s failure to amend. From this judgment the appeal is taken.
At common law the repeal of a penal statute was a bar to a pending prosecution of an offense committed before the repeal. (Endlieh on Interpretation of Statutes, secs. 478, 479.) By the unanimous weight of authority in this country this rule still obtains unless otherwise provided by statute. The same rule also obtains as to municipal ordinances unless otherwise provided by a statute or by the repealing ordinance. (28 Cyc. 384, note 63; Spears v. Modoc County, 101 Cal. 303, 35 Pac. 869; City of Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674; Barton v. Gadsden, 79 Ala. 495.) Our code does not contain ;a contrary provision as to municipal ordinances, although it does as to statutes. (C. S., sec. 116.) Ordinance No. 36 does not contain a saving clause as to pending prosecutions. Therefore, if ordinance No. 89 is valid, it raises an effective bar to the continued prosecution of the actions against respondents, and the corporations in which some of them are interested. Appellant contends that the alleged motive of respondents makes ordinance No. 89 null and void.
In 2 Dillon on Municipal Corporations, 5th ed., see. 580, p. 914, the author says:
“See. 580. It is well settled that the judicial branch of the government cannot institute an inquiry into the motives of the legislative department in the enactment of laws. Such an inquiry would not only be impracticable in most cases, but the assumption and exercise of such a power would result in subordinating the legislature to the courts. In analogy to this rule it is doubtless true that the courts will not, in general, inquire into the motives of the council in passing ordinances. But it would be disastrous, as we think, to apply the analogy to its full extent. Municipal bodies, like the directories of private corpora*489 tions, have too often shown themselves capable of using their powers fraudulently, for their own advantage or to the injury of others. We suppose it to be a sound proposition that their acts, whether in the form of resolutions or ordinances, may be impeached for fraud actually consummated at the instance of the municipality defrauded and perhaps at the instance of persons injured thereby.”
If the learned author meant by this that, in passing upon the validity of municipal legislation, courts may inquire into the motives of the legislative body, he is not borne out by the great weight of authority. The prevailing rule is that, in passing upon municipal ordinances which are legislative in character, as distinguished from administrative or ministerial, the courts cannot inquire into the motives of the legislative body, any more than in the case of legislation by the state. This is well stated in an opinion of the supreme court of the United States by Mr. Justice Field in a case involving the validity of an ordinance of the city of San Francisco.
“And the rule is general with reference to the enactments of all legislative bodies that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or infer-able from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile.” (Soon Hing v. Crowley, 113 U. S. 703, at 710, 5 Sup. Ct. 730, 28 L. ed. 1145.)
To the same effect see: Douglass v. Greenville, 92 S. C. 374, 75 S. E. 687, 49 L. R. A., N. S., 958; In re Smith,
The rule as above stated is limited to purely legislative acts of a municipality, and does not apply to acts in the exercise of its ministerial or administrative powers. (2 McQuillin on Municipal Corp., sec. 704.) This distinction must be borne in mind in considering the cases cited by appellant’s counsel. In Davis v. New York, 8 N. Y. Super. Ct. (1 Duer) 451, the ordinance in question was one granting an easement to a railroad company to lay its tracks in certain city streets. The court held that a court of equity could consider the motives of the common council. The ordinance, however, was of an administrative or contractual character rather than legislative. In Burke v. Coatesville Borough, 18 Pa. Dist. Ct. 491, it was held that an ordinance annexing certain property to the borough was invalid because four of the seven eouneilmen who adopted it were stockholders in. a company that owned a portion of the territory sought to be annexed. The court held that their personal interest made it a legal fraud for them to vote upon the issue and invalidated the ordinance. This ordinance also was of an administrative rather than a legislative character. In Jolly et ux. v. Pittslurg etc. Ry. Co., 16 Pa. Co. Ct. Rep. 1, it was held that an ordinance giving the consent of a borough to the use of its streets by a street railway is invalid if the members of the council who voted for the ordinance were stockholders or otherwise interested in the railway company. Here again the ordinance was administrative rather than legislative. In Re L’Abbé, 7 Ont. Law Rep. 230, the Canadian court held that a member of a municipal corporation is disqualified from voting
“A person injuriously affected by an ordinance may show that its passage was obtained by fraud or other unlawful means or for an unlawful purpose and the fraud which will invalidate an ordinance is shown by proof of fraud, defined to be the wilful doing of an unlawful act.” The ordinance in question was clearly an administrative one, being an ordinance to condemn land for the extension of a street. Moreover, the language above quoted is clearly dictum, for a consideration of the entire opinion shows the ground of the decision to have been, not fraud perpetrated in the passage of the ordinance, but the fact that the land was sought to be condemned for private and not for public purposes.
In certain other decisions it is intimated that a court may set aside an ordinance as invalid for fraud and in so doing may consider the motives of the members of the municipal council. Such a statement is found in Glasgow v. City of St. Louis, 107 Mo. 198, 17 S. W. 743. It is, however, dictum and the only authority cited is the above quotation from Dillon. The ordinance in that ease was plainly administrative, being one to vacate a portion of a street. Again, in Knapp etc. Co. v. St. Louis, 156 Mo. 343, 56 S. W. 1102, the court uses similar language, citing
The very great weight of authority supports the rule that the motives of the members of a municipal legislative body cannot be considered by the courts in passing upon the validity of a legislative ordinance. The only judicial expressions we have found to the contrary are those in Re L’Abbé and Shinkle v. Covington, supra. On the other hand, a different rule applies to ordinances of purely administrative character such as those involving contracts and dealing with property of the city. These are subject to scrutiny by the courts in the same way and to much the
“The ordinance is clearly general and legislative in its character and scope. It does not purport to enter into a special contract with, or confer any franchise upon, any individual or body, or combination of individuals. Hence, in this connection, the members of the city council are entitled to the same privileges and prerogatives which belong to members of a state legislature.” (Villavaso v. Barthet, 39 La. Ann. 247, 1 So. 599, at 607.)
“The power to legislate conferred to the city by its charter has reference to its authority to legislate for governmental functions, such as passing and enforcing ordinances to govern itself and others, under what is known as its police power; and it is distinct from the power to contract, which is similar in its effects to the right of contracting as exercised by natural persons.” (New Orleans etc. Co. v. City of New Orleans, 42 La. Ann. 188, at 192, 7 So. 559.)
Without attempting to lay down a hard-and-fast rule for distinguishing between legislative and ministerial or administrative ordinances, suffice it to say that ordinance No. 36 was clearly legislative, being one to raise revenue for the municipality by levying an occupation tax or license. It follows that the repealing ordinance No. 89 was also legislative. Being purely legislative in its character, we conclude that the court has no power to set it aside on account of the motives of those who passed it.
There is no statute of this state and there was no ordinance of -the village of Ashton disqualifying respondents from acting as trustees in passing upon this ordinance. We conclude that the courts have no power to lay down a rule which would disqualify them and are unwilling to follow the Canadian court in that respect. It may very well be that courts can and should hold, irrespective of statute, that
The judgment is affirmed, with costs to respondents.
