*1
only for failure of evidence 23 Am. and verdict. finding rest Ed., Law, Eng. Ency. 2d
& consented,
true that she must not have
because, did, of she there would no if
fense; but, hand, should on the other men allowed, protection of
not be
law, every indiscreet act construe
word a woman into a carnal consent to
knowledge, they nor be allowed
indulge presumptions against the virtue chastity Rather let of women.
evil-minded man and hazard incur risk sex, misjudging oppоsite and en degrade destroy
deavoring to them peace happiness.
their A little of go way
this kind of law would long unfortunately
some brutes who
bear the names men. There would illicit if
far less intercourse the seducer in the first assaults
place, brought oftener
justice annoyance community the less graver suffer toward offenses Neil, State v.
which conduct leads.”
supra Idaho [13 862]. judgment should be affirmed.
BUDGE, J.,C. concurs. *2 plaintiffs. Beckwith, Boise, for
R. W. *3 Boise,
Ralph Breshears, R. of for defend- PORTER, Judge. District
ant. August, the month of During Valley, officers of the Bank of Teton at Driggs, Idaho, and the of The Yel- officers Ashton, Compаny, Banking lowstone at Idaho, application filed an with the Com- permit of for missioner a' author- izing: (a) merger The The of Yellow- Banking Company stone with the Bank of Valley; (b) Teton the amendment of the Incorporation Articles of the Bank of Valley changing its Teton name to The Bank, increasing capital Yellowstone .its place changing and its stock of business County, Lloyd District, entitled Idaho; (c) for Ada Idaho, Teton, Rexburg, Idaho, Bank of Security Adams and First branch banks and the establishment Association, corporation, Plain- National Ashton, Idaho, Their Idaho. and at Driggs, Williams, tiffs, Governor v. Arnold as Com- application the then denied was Idaho, Com- Doe as the State of and Finance, Jenkins, G. L. missioner John Idaho, ap- missioner Finance of the State September, January, again de- defendants. plication was renewed and was Newport nied B. as steps alleged complaint generally the The J. 22, 1946, appli- such Finance. November reference to such theretofore taken with again additional cation renewed and application permit alleged that the filed. December supporting instruments in connec- documents and instruments filed vacillation, the Commis- after defective, some tion with ap- denied the again sioner of Finance incomplete number and insufficient plication. requested He thеreafter particulars complaint. The out set to reconsider Governor Williams injunc- Arnold complaint prayed permanent for a his and tendered against permit; denial the granting of such cause;, rather resignation December an order to show pending hearing on the order to show than take the matter. further action cause a issued New- resignation of Commissioner ap- straining therein defendants 1946, by port accepted December proving granting 9:15 the hour of Governor Williams at permit. Upon plaintiffs, motion o’clock hour of 11:00 At the o’clock A.M. herein, Koelsch, Charles F. the defendant A.M., Governor was with the served Judge, 28,1946, December issued described. restraining order hereinafter order, order to cause and restraining Thereafter, day of December during the requiring the defendants in such action appointed the Governor William J. cause, 4, 1947, why January a tem- Commissioner of Finance of Sewell porary not issue in ac- period for the between the State of Idaho motion, plaintiffs’ cordance with January meantime until a hearing duly qualified Commis- William Sewell J. cause, on such order to show sioner of *4 granting ap- said from defendants day approved the same on the plication permit. This order to show requested permit. the question and issued in restraining duly cause and order was served upon 28, 1946, suit filed Gоvernor Williams December a was in December time when Com- the Third Court of District Judicial
Sá5 by made Idaho, order was an of Finance State of of missioner requiring de- Se- this court on such date upon William not served and was J. Koelsch, fendant, cause Charles F. to show well. had, 1947,why any January 10, if a writ supplemental com- prohibition of prohibiting should not issue of the officers plaint making was filed proceedings him taking any from further defend- parties question additional banks on the two cause certain orders show motion, 31, 1946, an upon ant. question; meantime of name substituting the made order was proceeding the defendant man- any Fi- Sewell as Commissioner William J. upon ner whatsoever until such orders name for the of Idaho nance of State further this court. The defendant defendant. On party Doe as John duly filed January return set- by day cause issued an order show same ting proceedings forth the had in his court. Koelsch, Judge, F. as District Charles Likewise, quash a motion to filed affi- plaintiffs based on the motion day. on the same theWith con- Breshears, attorney for Ralph R. davit of court, sent аdditional affidavits were Williams, plaintiffs, requiring Arnold and, parties filed both February Idaho, Sewell, Governor of and William J. plaintiffs filed a quash motion to of the Commissioner State return of the The case was defendant. cause, Idaho, 4, 1947, January presented duly thereafter to the court they court, before not be why oral argument. disobey- punished of court for very At the outset of our consideration ing the restraining order issued December case, hy of this we met are fact 28, 1946. restraining order of December herein, January plaintiffs Ar- pаrte. issued ex kind No notice of Williams, nold Governor of the State given prior its issuance. Section Idaho, Sewell, and William J. I.C.A., provides as follows: Idaho, an of the State of filed duty imposed by up- “Where a statute pro- for writ this court officers, state officer or herein, hibition, praying the defendant them, restrain him or or a em- Koelsch, per- Judge, F. Charles them, ployed by perform- him from the prohibited manently taking any fur- duty, prevent ther action either described ance of the execu- of the statute, granted, cause in mean- оf the shall orders time, except sitting the district order to show cause issue prohibited hearing county defendant be until which the officer or officers so located, required duty or the to be per- on such order. Pursuant to *5 346
formed; application upon and notiсe the approved by bank must be the Commis- officers, officer Likewise, the or or other sioner of Finance. section 25- therefor I.C.A., provides be restrained.” (Italics supplied.) any consolidation of one bank with another must be bank appears that, upon It appli- in acting the with the consent of the Commissioner of cation in question, the Governor and 25-1001, Finance. I.C.A., Section as amend- Commissioner performing Laws, ed by 1935 p. Session chap. imposed 65-2301, duty by statute. Section 258, provides may only that branch banks I.C.A., provides as follows: be approval established with the of the responsibility “Gubernatorial —Adminis- Commissioner of Finance. it Clearly was departments supreme trative created. —The statutory the duty of the Commissioner executive by of the state is vested pass Finance to upon application the constitution, the article section question upon request the for reconsid- governor, charged expressly is who eration. His action involved the exercise duty seeing the that the laws are faith- scope his discretion within and was fully exeсuted. order that exer- authority. statutory of his portion authority cise of the vested so powers apparently now The defendant addition to conferred contends law, by the Commissioner him civil administrative de- having denied created, partments hereby through matter was closed denial by be revoked a sub- governor instrumentality of which the sequent Commissioner of Finance. How- authorized to exercise the this functions ever, application denied, having been assigned respec- department, each act rights having obtаined tively.” action, Commissioner’s One of the administrative several de- subject request to reconsideration partments provided 65-2302, section out, therefor. As hereinbefore set I.C.A., Department is the of Finance. requests had been several for reconsiderа- Among the officers created section 65- upon by which been acted 2304, I.C.A., Fi- department. I.C.A., 65-2312, Section as amended nance. Laws, chap. p. 6-406,1.C.A., sec. provides Session Section as follows: appointment provides for of such “Order cause. —If the officers the Governor. judge proper defendant, deem that the 25-204, I.C.A., by any defendants, amended of several Section should be heard (Ex.Sess.), chap. Laws injunction, Session before granting order p. provides may be made requiring sec. cause to be shown incorporation specified place, articles of time to amend the why the in- provided section straining junction granted, should not answer seems meantime, re- [sec. I.C.A.] may, in defendant is author- for its issuance description strained.” ‘And the language: following ized in the provision statutеs It under this meantime, may, defendant that the to, is, tempo- strained.’ amounts position granted.- The takes *6 injunction.” rary in- not an is restraining order is in junction 443, term used said section Grice, Idaho Price v. 10 See also v. 6-408, to Rowland He cites us Adair, I.C.A. 387; Idaho Kimbley 32 P. v. 79 216, Co., 40 Idaho Power, & Water Kеllogg Power 790, 53; Kellogg Rowland v. be- 869, is made P. a distinction 233 where Co., etc., supra; Beach v. United States restraining order a tween etc., Co., 255, the functions Fidelity, 30 54 Idaho P.2d However, temporary this injunction. and a 1079, 264. 92 A.L.R. a order restraining that a is case holds 6-407, I.C.A., immediately pre- Section injunction.
statutory companion and is statute to section cedes a 6-401, I.C.A., injunc- an Section defines 6-408, I.C.A., here under consideration. follows: tion as an in- issuance of Such section forbids the re- injunction “An is writ order a or junction suspending and ordi- general particu- refrain from quiring a to corporation, without due nary of a business may granted lar court act. injunction. application for notice of the brought, by a which the action is or uniformly court held re- has This thereof, judge judge, when made injunctions temporary straining orders and mаy order be enforced as the this erroneous contravening section were court.” City, Boise 7 Idaho and void. Wilson v. 84; Adair, supra; Kimbley P. v. 60 in this well It has settled long City Power Mountain States Co. v. permanent injunction, tem state that a Idaho 400. Sandpoint, 49 P. injunction, porary and a an definition of statutory all fall within the defendant makes conten- Counsel for injunction. Stockslager, In MacWatters v. inherent P. the court Idaho restraining order with- grant to language: used this rule whenever notice out notice accelerate in- will giving injunction statutory definition оf “The granted jury, without Codes, in section Rev. to be found apply well where the rule This injunction notice. 6-401, ‘An and is: [Sec. I.C.A.] discretion, in exercising his deter- judge person to requiring a or order is a writ require notice whether mining particular act.’ The refrain from injunction. HOLDEN, concur- issuing tеmporary (specially before Justice empower a However, ring). rule cannot provisions positive
court
disregard the
con
I
foregoing
concur in the
Morrison, 9 Idaho
Stein
of a statute.
v.
I.C.A.,
struction of section
426, 75
P.
restraining
De
holding
dated
order
notice,
pro
give
The failure
temporary
cember
amounted to a
restraining
by statute,
vided
renders
injunction,
views
and I also
concur
inoperative.
order
void
AILSHIE,
expressed by
im
Mr. Justice
contempt
proceedings predicated
The
mediately following.
I further concur
order fall with
restraining
void
for
holding
prohibition prayed
the writ of
alleged
of such order
violation
order.
by plaintiffs
issue, prohibiting
de
contempt
did not constitute
fendant
taking
action
further
whatso
jurisdic
was without
defendant herein
ever
either the
cause
order
punish
рlaintiffs
tion to cite
dated
contempt
Stock
court. MacWatters v.
citing
the order
cause
slager,
Hay Hay,
supra;
40 Idaho
v.
plaintiffs
dated
holding
I do
effect of an executive chief
committed, may not control but discretion.
executive’s Morrison, 9 Idaho Stein v. 246,255, said: we keep that to within
“It seems to us 1) (article § Constitution
spirit of our recognizes government which
and form of independence specific character govern- departments’ of
the ‘three distinct
ment, judicial department that the the other attempt prohibit either of recog-
departments acting within respective scope branches
nized of their the other government, but
hand, legal after effect action of such inquired into taken
has been
court.” P.2d v. SMITH. SMITH
No. 7324.
Supreme Court Idaho.
May 15, 1947.