Cross References.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49, of title 50.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Section 474 of S.L. 1967, ch. 429 read: “If any section, subsection, subdivision, paragraph, sentence, part or provision of this act shall be found to be invalid or ineffective by any court it shall be conclusively presumed that this act would have been passed by the legislature without such invalid section, subsection, subdivision, paragraph, sentence, part or provision and this act as a whole shall not be declared invalid by reason of the fact that one or more sections, subsections, subdivisions, paragraphs, sentences, parts or provisions may be so found invalid.”

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Requisite Filings.

When Acequia was incorporated as a village in 1952, the procedure was governed by former§ 50-701. The statutes then in effect for “villages” contained no requirement of filing a proclamation declaring incorporation of a city with the secretary of state. So, since this section and§ 50-102 were not enacted until 1967, even though Acequia has not filed with the secretary of state a proclamation declaring incorporation of a city, Acequia was a duly formed city when the ordinances in question were enacted. State v. Phillips, 118 Idaho 27, 794 P.2d 297 (Ct. App. 1990).

Decisions Under Prior Law

Appeals.

Collateral attack.

Construction.

Existence as unit.

Notice.

Order.

Petition.

Appeals.

Where board of commissioners in making an order incorporating a city found that proposed boundaries were reasonable, any person who was aggrieved thereby had his remedy by appeal, and incorporation would not be held void because boundaries were improperly fixed, in absence of any showing that boundaries so fixed included an unreasonable amount of land. Wardner v. Pelkes, 8 Idaho 333, 69 P. 64 (1902).

Order for incorporation of a village was appealable to district court by any person aggrieved thereby or by any taxpayer within territory affected by such incorporation. Gardner v. Blaine County, 15 Idaho 698, 99 P. 826 (1909). An appeal filed by city from order incorporating a village to which incorporation the city objected on the grounds that the proposed village contained fewer than 125 residents, that the proposed boundaries were irregular, bizarre and fantastic, that its incorporation would materially hamper the ordinary growth of the city would have been dismissed on the ground that the city was neither a “person aggrieved” by the order, nor a “taxpayer of the county” and therefore was not authorized to appeal under the provisions of former§ 31-1509. In re Fernan Lake Village, 80 Idaho 412, 331 P.2d 278 (1958).

Collateral Attack.

In action attacking validity of incorporation of a village on ground that petition praying for such incorporation was not signed by majority of taxable male inhabitants residing within boundaries of said village, it must affirmatively have appeared from proceedings attacking such incorporation that said petition was not signed by majority of such taxpayers. In re Francis, 7 Idaho 98, 60 P. 561 (1900).

Construction.

Provisions of former section authorizing incorporation of a village was to be liberally construed. Village of Ilo v. Ramey, 18 Idaho 642, 112 P. 126 (1910).

Existence as Unit.

Any area which was sought to be incorporated must have existed as a unit and constituted a village in fact. In re Chubbuck, 71 Idaho 60, 226 P.2d 484 (1950).

Notice.

Former section governing incorporation of villages did not provide for notice and none was required to be given to opponents of a proposed incorporation; further, the statute made it mandatory upon the county commissioners to create the village when petition therefor complied with statute and board was satisfied that a majority of the taxable inhabitants of the proposed village had signed the same and there were 125 or more inhabitants actually resident of the territory described in the petition. In re Riggins, 68 Idaho 547, 200 P.2d 1011 (1948).

Order.

Fact that order of board of commissioners declaring town incorporated failed to designate metes and bounds of town did not affect legality of incorporation, where petition for incorporation clearly designated said boundaries and order referred to petition and granted it without change or modification. State ex rel. Holcomb v. Inhabitants of Pocatello, 3 Idaho 174, 28 P. 411 (1891).

Fact that order incorporating a city did not state that 200 or more inhabitants were legal residents of territory described in petition did not render order void where same uses words “taxable inhabitants,” and shows that a sufficient number of taxable inhabitants signed petition. Wardner v. Pelkes, 8 Idaho 333, 69 P. 64 (1902).

Petition.

Attempted incorporation of a town was void where petition for incorporation failed to describe metes and bounds of any tract of land whatever. Wardner v. Pelkes, 8 Idaho 333, 69 P. 64 (1902). Former section governing incorporation of villages was satisfied if the petition for incorporation which was introduced into evidence without objection set forth the metes and bounds of the proposed village. In re Riggins, 68 Idaho 547, 200 P.2d 1011 (1948).

Withdrawal of names from a petition for incorporation of a proposed village on the plea that such signatures were made upon false information would not have been permitted where board of county commissioners had acted on such petition. In re Riggins, 68 Idaho 547, 200 P.2d 1011 (1948).

If the district court found that the board of county commissioners did not abuse its discretion in granting one of the petitions for incorporation, then their order incorporating that area as a village should have been affirmed. In re Chubbuck, 71 Idaho 60, 226 P.2d 484 (1950).

Where there were two rival petitions for incorporation, one including the area in the other, the determination of whether a village in fact exists and its extent was first for the board of county commissioners and on review, the district court. In re Chubbuck, 71 Idaho 60, 226 P.2d 484 (1950).

Cross References.

Municipal elections,§ 50-401 et seq.

Qualifications of councilmen,§ 50-702.

Qualifications of mayor,§ 50-601.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style. The term “this act” in the last sentence refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code.

Requisite Filings.

When Acequia was incorporated as a village in 1952, the procedure was governed by former§ 50-701. The statutes then in effect for “villages” contained no requirement of filing a proclamation declaring incorporation of a city with the secretary of state. So, since this section and§ 50-101 were not enacted until 1967, even though Acequia has not filed with the secretary of state a proclamation declaring incorporation of a city, Acequia was a duly formed city when the ordinances in question were enacted. State v. Phillips, 118 Idaho 27, 794 P.2d 297 (Ct. App. 1990).

Cross References.

Census authorized,§ 50-214.

Secretary of state,§ 67-901 et seq.

Cross References.

Proof of corporate existence,§ 50-201.

Secretary of state,§ 67-901 et seq.

Decisions Under Prior Law

Judicial Notice.

Instruction that judicial notice could have been taken of fact that city in question in prosecution of city treasurer for embezzlement was a city of the second class was not erroneous. State v. Clark, 47 Idaho 750, 278 P. 776 (1929).

Cross References.

City reorganized under general law, proof of corporate existence,§ 50-2306.

Secretary of state,§ 67-901 et seq.

Village incorporated as city, proof of corporate existence,§ 50-104.

Compiler’s Notes.

The term “this act” in the section heading, near the beginning of the first paragraph and at the end of the second paragraph refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code.

Decisions Under Prior Law

Provisions of City Charter.

The Boise City charter and its amendments were special acts of the legislature and, therefore, were not included in the provision of the former law that “all by-laws, ordinances and resolutions” in force in a city under its former organization remain in force until altered or repealed. Anderson v. Boise City, 91 Idaho 527, 427 P.2d 574 (1967).

Compiler’s Notes.

The term “this act” throughout the section refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code.

The phrase “the time this act takes effect” in the first paragraph refers to the effective date of S.L. 1967, Chapter 429, which was effective April 12, 1967.

The bracketed word “asserted” near the end of the first paragraph was inserted by the compiler to correct the enacting legislation.

The references to “chapters 36, 43 or 49, title 50, Idaho Code” near the end of the section are to those chapters of the former title 50 of the Idaho Code which were repealed by S.L. 1967, ch. 429, § 472. Such provisions related to the commission plan, city manager plan and council-manager-mayor plan of government, respectively.

The reference to “sections 50-805 through 50-904” near the end of this section (which appears in S.L. 1967, ch. 429, as a reference to sections 144 through 155) appears to be an error in the session law and, therefore, the bracketed reference to [sections 50-801 through 50-812, Idaho Code] has been inserted by the compiler.

Cross References.

Qualifications, powers and duties of councilmen,§ 50-701 et seq.

Qualifications, powers and duties of mayor,§ 50-601 et seq.

Amendments.

The 2006 amendment, by ch. 105, substituted “published at least seventy-five (75) days” for “passed at least sixty (60) days.”

Compiler’s Notes.

Section 32 of S.L. 1976, ch. 45 read: “In order to provide an orderly sequence for implementation of the provisions of this act: (a) Sections 1, 2, 3, 4, 7, 8, 9, 10, 11, 15, 27 and 31 shall be in full force and effect on and after January 1, 1977; (b) Sections 5, 6, 12, 13, 14, 20, 21, 22, 26 and 30 shall be in full force and effect on and after July 1, 1977; (c) Sections 16, 17, 18, 19, 23, 24, 25, 28, and 29 shall be in full force and effect on and after October 1, 1977.”

Cross References.

Mayor and council to fill vacancies in office,§ 59-905.

Worker’s compensation applies to municipal officers and employees,§ 72-205.

Police Officers.

The historical progression of the relevant statutory sections shows the legislature’s intention to limit the officers required by statute to be appointed by the mayor with the consent of the city council. Police officers, once included in the above category, are not expressly enumerated in the present version of this section, and the apparent legislative intent was to delete police officers from the requirement of mayoral appointment, with city council approval, applicable to other officers. State v. Whelan, 103 Idaho 651, 651 P.2d 916 (1982).

Presumption of Official Action.

In a prosecution for resisting an officer in the performance of his duty, in the absence of a showing by the defendant that the city required police officers to post a bond, the court had to presume that the two complaining officers had been properly appointed and were carrying out the duties of the office. State v. Whelan, 103 Idaho 651, 651 P.2d 916 (1982).

Cited Bunt v. City of Garden City, 118 Idaho 427, 797 P.2d 135 (1990). Decisions Under Prior Law

Policemen.

Removal.

Statute of limitations.

Policemen.

Under former section the mayor was authorized to appoint policemen by and with the consent of the council; this was the only method by which policemen of a city could be appointed. Moore v. Hupp, 17 Idaho 232, 105 P. 209 (1909).

Removal.

No power exists to dismiss or discharge any elective officer. All officers having anything to do with streets and sidewalks were elective officers, except street commissioner, who was appointed by and was under the direction and control of the board of trustees. Miller v. Mullan, 17 Idaho 28, 104 P. 660 (1909).

Statute of Limitations.

With respect to running of statute of limitations, cause of action on bond of city treasurer for money deposited without authority in bank which failed accrued when he failed to turn over funds of city at close of term. City of St. Anthony v. Mason, 49 Idaho 717, 291 P. 1067 (1930).

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

At-Will Employees.

A city clerk is an appointive officer who is an at-will employee who may be removed without notice or a hearing. A municipality does not alter that status by adopting a personnel manual, outlining hiring and termination procedures. Boudreau v. City of Wendell, 147 Idaho 609, 213 P.3d 394 (2009).

Chief of Police.

The office of chief of police is an appointive office subject to this section’s employment-at-will framework, and removal of the office holder was, therefore, possible at the will of the employer, with no notice or hearing required. Bunt v. City of Garden City, 118 Idaho 427, 797 P.2d 135 (1990).

Cross References.

Annexed land, duty to record ordinance including legal description and map,§ 50-223.

Entering call and objects of special meetings of city council on journal,§§ 50-604, 50-706.

Excluded land, duty to record ordinance including legal description and map,§ 50-225.

Filing copy of judgment separating agricultural lands,§ 50-230.

Municipal elections, powers of clerk,§ 50-403.

Decisions Under Prior Law

Duties of clerk.

Mandate to draw warrant.

Duties of Clerk.

City could have, by ordinance, added to duties of city clerk. State v. Dawe, 31 Idaho 796, 177 P. 393 (1918).

Mandate to Draw Warrant.

Where city council allowed a claim, if city clerk refused to draw a warrant in payment thereof, he could be compelled by writ of mandate to do so; he had no discretion in premises; his duty was merely ministerial. Wycoff v. Strong, 26 Idaho 502, 144 P. 341 (1914).

Cross References.

Deposit of funds as provided by ordinance,§ 50-1013.

Duty to publish quarterly financial statements,§ 50-1011.

Amendments.

The 2017 amendment, by ch. 129, rewrote the section to the extent that a detailed comparison is impracticable.

Compiler’s Notes.

Section 4 of S.L. 2017, ch. 129 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act”.

CASE NOTES

Decisions Under Prior Law

Construction.

Statute of limitations.

Construction.

Former section governing duties of treasurer was not mandatory and self-executing to extent that it could have determined and declared existence of fact upon which law operates. Board must have first found fact to exist that treasurer had failed or neglected to make reports as required by law before they could have declared office vacant. Kendrick v. Nelson, 13 Idaho 244, 89 P. 755 (1907).

Statute of Limitations.

With respect to running of statute of limitations, cause of action on bond of city treasurer, for money deposited without authority in bank which failed, accrued when he failed to turn over funds of city at close of term. City of St. Anthony v. Mason, 49 Idaho 717, 291 P. 1067 (1930).

Plea Agreement.

Authority to bind another prosecutor requires that the bargaining prosecutor have the authority to prosecute the charge being bargained away or otherwise affected; therefore, convictions for violating a no contact order in Kootenai County were vacated because defendant relied on the promise of a city prosecutor in Ada County when he entered into a plea agreement, that included a promise of not being prosecuted for additional charges. This plea agreement was binding on other prosecutors as agents of the state of Idaho. State v. Baker, 156 Idaho 209, 322 P.3d 291 (2014).

Unlawful Abortions.

Prosecutions for unlawful abortions under§§ 18-605 and 18-606, which are declared to be felonies, would be the responsibility of the prosecuting attorney.OAG 93-1.

Local Marijuana Laws.

Provision of local initiative pertaining to the use of marijuana for medicinal purposes that directs the municipal prosecuting attorney to dismiss certain misdemeanor drug charges is in direct conflict with state law and is invalid.OAG 07-02.

Cross References.

Policeman’s retirement fund,§ 50-1501 et seq.

Effective Dates.

Section 3 of S.L. 1980, ch. 152 declared an emergency. Approved March 25, 1980.

Section 3 of S.L. 1987, ch. 85 declared an emergency. Approved March 24, 1987.

Fresh Pursuit.

The only evidence necessary to show fresh pursuit is that the officer had knowledge that a crime or infraction was committed within his jurisdiction and that the officer pursued the suspect beyond the jurisdiction with the purpose of making an arrest, citing the suspect, or investigating the offense. Whether the officer’s lights are flashing and siren is blaring is objective evidence of the officer’s pursuit, but it is not necessary. It is well within an officer’s discretion to wait for a safe point to stop a vehicle. State v. Scott, 150 Idaho 123, 244 P.3d 622 (Ct. App. 2010).

Liability for Intoxicated Person.

Misuse of Public Money.

Where police officers did not have control over vehicle of driver who was taken to hospital by police officers after being struck in the nose by bouncer at local bar, and doctor who treated driver told officers that driver was too intoxicated to drive and officers advised driver not to drive and to have someone pick him up and take him home, since no statute imposes a duty on police officers to arrest an intoxicated person who possesses the keys to a vehicle the person might drive, and who has not committed some other crime for which the officer might arrest the person, they were not liable in tort to person injured when driver attempted to drive himself in the vehicle after officers had returned his keys to him and departed. Olguin v. City of Burley, 119 Idaho 721, 810 P.2d 255 (1991). Misuse of Public Money.

Dismissal of charge of misuse of public money was affirmed because defendant, a police officer, was not within the class of persons who were charged with the receipt, safe keeping, transfer or disbursement of public moneys. State v. Pruett, 143 Idaho 151, 139 P.3d 753 (Ct. App. 2006).

Oath of Office.

This section indicates that the decision to appoint police officers is entirely discretionary with the municipality and, thus, although police officers are public officers whose duties relate to governmental functions of a municipality, a police officer does not fill an office created by the laws of the state of Idaho. Even though a city may require a police officer to take an oath before assuming the obligations and responsibilities of office, police officers are not required by§ 59-401 to take an oath, and, where defendant was charged with resisting an officer in the performance of his duty, the state was not required to prove that an oath of office was taken pursuant to§ 59-401. State v. Whelan, 103 Idaho 651, 651 P.2d 916 (1982).

Decisions Under Prior Law

Actions against police officers.

Ejection of person from police station.

Time and limit of authority.

Actions Against Police Officers.

Where police officers were sued for battery by citizens they should have notified the city and had the city made party defendant, if they desired the city to furnish counsel and defend the action. City of Nampa v. Kibler, 62 Idaho 511, 113 P.2d 411 (1941).

Reimbursement for attorney’s fees and expenses for defending an action against police officers could not be given by a city where the officers gave no notice to the city nor applied to the court to make the city a party defendant. City of Nampa v. Kibler, 62 Idaho 511, 113 P.2d 411 (1941).

Ejection of Person From Police Station.

If a wife was guilty of misconduct, which required her removal from a room at police headquarters, where the chief of police was questioning her husband, who had been arrested, chief of police was authorized, after requesting the wife to desist or leave the room, and after giving her time to leave, to eject her without becoming liable for assault and battery, provided he used no more force than was necessary. Cornell v. Harris, 60 Idaho 87, 88 P.2d 498 (1939).

Time and Limit of Authority.

Former similar section did not enumerate powers, or place exact limits on authority, which a police officer may lawfully exercise in performance of his duties. Cornell v. Harris, 60 Idaho 87, 88 P.2d 498 (1939).

Local Marriage Laws.

Provision of local initiative pertaining to the use of marijuana for medicinal purposes that restricts enforcement of state law by summons only is in direct conflict with this section and therefore is invalid.OAG 07-02.

Private Peace Officers.

No authority exists for a city to appoint the employees of a private company to serve as “peace officers.”OAG 08-02.

ALR.

§ 50-210. Boards — Commissions.

The mayor and council shall have authority to appoint such boards, commissions and committees as may be deemed necessary or expedient to assist the mayor and council in better carrying out the responsibilities of their offices. The responsibilities, duties and authority granted permanent boards or commissions, shall be enumerated by ordinance. All appointments to permanent boards, commissions or committees shall be made by the mayor with the advice and approval of the council, and members of permanent boards, commissions or committees may in like manner be removed. Members of all such boards, commissions or committees shall serve without compensation, but actual and necessary expenses may be allowed by ordinance in the case of permanent boards, commissions or committees, or with prior approval of the mayor and city council for all other boards, commissions or committees. Unless otherwise specifically provided, each such board, commission or committee shall provide its own manner of organizing, but shall maintain such records and make such reports as the mayor and city council may require or request.

History.

1967, ch. 429, § 74, p. 1249; am. 1987, ch. 24, § 1, p. 33.

Prior Laws.

Former§ 50-211, which comprised 1967, ch. 429, § 34, p. 1249, was repealed by S.L. 2007, ch. 202, § 9.

Compiler’s Notes.

This section, which comprised S. L. 1967, ch. 429, § 35, p. 1249, was repealed by S. L. 1969, ch. 255, § 6.

Branch Office.

The newspaper’s maintenance of a branch or satellite office in the city was not sufficient to make it the official newspaper of that city under this section, where its principal office was located in another city. Express Publishing, Inc. v. City of Ketchum, 114 Idaho 114, 753 P.2d 1260 (1988).

Place of Publication.

Where a newspaper maintained its principal office in a city and had a second-class mailing permit from that city’s post office, the type was set, photographs and advertising copy, and all of the other accouterments of putting out a newspaper (except for the actual printing) took place in the principal office, the newspaper was “published” in the city for official newspaper purposes. Express Publishing, Inc. v. City of Ketchum, 114 Idaho 114, 753 P.2d 1260 (1988).

The language of this section manifests a legislative intent to distinguish a newspaper’s place of publication from its place of circulation. Express Publishing, Inc. v. City of Ketchum, 114 Idaho 114, 753 P.2d 1260 (1988).

Cross References.

Census,§ 50-103.

Secretary of state,§ 67-901 et seq.

Effective Dates.

Section 2 of S.L. 1973, ch. 21 declared an emergency. Approved February 21, 1973.

Cross References.

Penalty for perjury,§ 18-5409.

Writ of Execution.

In a breach of contract action, a writ of execution was not allowed against city funds. City of Idaho Falls v. Beco Constr. Co., 123 Idaho 516, 850 P.2d 165 (1993).

Cross References.

Filing claims against political subdivision,§ 6-906.

Applicability.

The notice provision of this section applies to actions against a city for breach of contract as well as to tort claims. Enterprise, Inc. v. Nampa City, 96 Idaho 734, 536 P.2d 729 (1975) (decision prior to 1983 amendment).

Where a party sought to recover $7,568.10 for labor and materials it furnished as a subcontractor under a public works contract, the provisions of this section, requiring “claims for damages” to be submitted to a city within 60 days of the time the “damages” occurred, were not applicable. H-K Contractors v. City of Firth, 101 Idaho 224, 611 P.2d 1009 (1979) (decision prior to 1983 amendment).

Dismissal of Suit.

Where trash hauler filed a complaint for damages resulting from an alleged breach of a municipal garbage and refuse service contract before the lapse of sixty days after trash hauler informed the city clerk, city councilmen and mayor by letter of trash hauler’s intent to pursue litigation on the breach of contract, the action against the city was properly dismissed. Enterprise, Inc. v. Nampa City, 96 Idaho 734, 536 P.2d 729 (1975) (decision prior to 1983 amendment).

Notice of Claim.

Where a trash hauler, who knew that a public hearing was to be held to determine whether trash hauler’s contract to provide garbage and refuse service for the city should be forfeited, sent a letter to the city clerk, city councilmen, and mayor informing them that any attempt to award the contract to any other party would result in litigation for breach of contract, the city had notice of a probable claim for damages. Enterprise, Inc. v. Nampa City, 96 Idaho 734, 536 P.2d 729 (1975) (decision prior to 1983 amendment). A city’s actual notice of plaintiff’s damages which resulted from the city’s alleged failure to properly operate its municipal water system did not take plaintiff’s complaint out of the notice of claim requirements. Calkins v. Fruitland, 97 Idaho 263, 543 P.2d 166 (1975) (decision prior to 1983 amendment).

The language contained in this section requires that a claimant must file a notice of claim for all damage claims, tort or otherwise, as directed by the filing procedure set forth in§ 6-906 of the Idaho Tort Claims Act. Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990).

Where employee failed to file a notice of claim after being terminated by the city, the employee’s claims for wrongful termination and breach of the covenant of good faith and fair dealing were barred. Bryant v. City of Blackfoot, 137 Idaho 307, 48 P.3d 636 (2002).

Section§ 50-219 did not violate the unity requirement of Idaho Const., Art. III, § 16 because its title encompassed the subject matter of damage claims against cities and served to fairly identify the content of the act. Cox v. City of Sandpoint, 140 Idaho 127, 90 P.3d 352 (Ct. App. 2003).

Where developer did not file notice of a claim of unjust enrichment against a city, regarding construction of a water supply line to a new subdivision, until almost one year after he had completed the construction, his claim was not timely under§ 6-906 and this section. Scott Beckstead Real Estate Co. v. City of Preston, 147 Idaho 852, 216 P.3d 141 (2009).

Fire chief’s claim for breach of contract was dismissed because that claim was subject to the notice requirement under this section; neither the fire chief’s demand letters providing written notice of his whistleblower claim nor his initial complaint met the notice requirements of§ 6-906 and this section. Brown v. City of Caldwell, 769 F. Supp. 2d 1256 (D. Idaho 2011).

Statute of Limitations.

This section is not a statute of limitations; its requirement of notice of claim is additional to the requirement of the applicable statute of limitations. Harkness v. City of Burley, 110 Idaho 353, 715 P.2d 1283 (1986) (decision prior to 1983 amendment).

In an action for additional fees, the time limit in§ 6-906 began to run, not when the construction performance manager performed his additional services, but when the city denied the manager’s fee request for those services. City of Meridian v. Petra Inc., 154 Idaho 425, 299 P.3d 232 (2013).

District court did not err when it dismissed the property owner’s state claims for unlawful taking, as they were time-barred by§ 6-908, because they were filed more than 180 days after their cause of action accrued. Alpine Vill. Co. v. City of McCall, 154 Idaho 930, 303 P.3d 617 (2013).

Decisions Under Prior Law

Cause of injury.

Construction.

Notice.

Place of injury.

Purpose of section. Services of private detectives.

Sufficiency of compliance.

Suit against councilmen.

Cause of Injury.

In stating the cause of injury it was not necessary to set forth negligence of the city that resulted in damages, but only the cause of the damages. Dunn v. Boise City, 45 Idaho 362, 262 P. 507 (1927).

Construction.

Former section governing claims against first-class cities should not have been construed so as to defeat justice. Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 (1955).

Notice.

Former section governing claims against first-class cities was substantially complied with where attorney for property owners by letter demanded that the city continue delivery of irrigation water to the property owners pursuant to contract of specified date, set out the damages sustained by reason of city’s failure to deliver the irrigation waters, stated that the city would be held accountable for resulting damages, and set forth the place, character, and cause of the damages. Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 (1955).

While it was incumbent upon a claimant to plead and prove the giving of notice as required by former law, the giving of such notice was removed from the issues of the cause by the defendant’s admission in open court that the city had received such notice. McLean v. City of Spirit Lake, 91 Idaho 779, 430 P.2d 670 (1967).

A property owner’s letter to the village board calling attention to “this year’s flood” and the subsequent removal of culverts and enlargement by the village of the ditch which extended the full length of the boundary between his land and the highway was sufficient notice to the village of the property owner’s claim for damages resulting from the complete isolation of his real estate from vehicular access to any highway. Weaver v. Village of Bancroft, 92 Idaho 189, 439 P.2d 697 (1968).

Place of Injury.

In action for injury to property, city address of plaintiff was sufficient to direct attention of city to premises located at that address. Dunn v. Boise City, 45 Idaho 362, 262 P. 507 (1927).

Purpose of Section.

Main purpose of former statute was not to require such statement of circumstances as to show absolute liability, but rather such information that authorities might have been able to make full investigation of cause of injury and determine city’s liability therefor. Dunn v. Boise City, 45 Idaho 362, 262 P. 507 (1927).

Purpose of former section governing claims against first-class cities was to give city notice of claim and opportunity “to ascertain the extent of the injury, investigate its cause and determine the liability of the city.” Dunn v. Boise City, 45 Idaho 362, 262 P. 507 (1927); Dunn v. Boise City, 48 Idaho 550, 283 P. 606 (1929).

Services of Private Detectives.

The purpose of former section governing claims against first-class cities was to give the city prompt notice of the claim and a sufficient time in which to investigate the cause of the claim and the liability of the city. Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 (1955). Services of Private Detectives.

The action of a city council in attempting to ratify the act of the mayor in engaging the services of private detectives and in ordering the payment of such services was void. Tate v. Johnson, 32 Idaho 251, 181 P. 523 (1919).

Sufficiency of Compliance.

Substantial compliance with statute was all that law required. Dunn v. Boise City, 45 Idaho 362, 262 P. 507 (1927).

Issue as to whether plaintiff’s claim for damages had been properly served on city determined by Supreme Court in prior appeal remained the law of the case. Yearsley v. City of Pocatello, 71 Idaho 347, 231 P.2d 743 (1951).

Suit Against Councilmen.

Plaintiff who sustained personal injuries as the result of a dead end street accident in a city was not barred from suing councilmen based on their alleged negligence to maintain warning signs merely because the plaintiff failed to file a claim against the city. Lemmon v. Clayton, 128 F. Supp. 771 (D. Idaho 1955).

ALR.

Municipal liability for property damage under mob violence statutes. 26 A.L.R.3d 1198.

Incapacity caused by accident in suit as affecting notice of claim required as condition of holding local governmental unit liable for personal injury. 44 A.L.R.3d 1108.

Consideration of fact that landowner’s remaining land will be subject to assessment in fixing severance damages. 59 A.L.R.3d 534.

Liability of governmental entity for issuance of permit for construction which caused or accelerated flooding. 62 A.L.R.3d 514.

Liability of state or municipality in tort action for damages arising out of sale of intoxicating liquor by state or municipally operated liquor store or establishment. 95 A.L.R.3d 1243.

Recovery of exemplary or punitive damages from municipal corporation. 1 A.L.R.4th 448.

Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection. 22 A.L.R.4th 624.

Amount of appropriation as limitation on damages for breach of contract recoverable by one contracting with government agency. 40 A.L.R.4th 998.

Local government tort liability: minority as affecting notice of claim requirement. 58 A.L.R.4th 402.

Punitive damages: power of equity court to award. 58 A.L.R.4th 844.

Liability of municipal corporation for negligent performance of building inspector’s duties. 24 A.L.R.5th 200.

Decisions Under Prior Law

Use of Lake May Be Regulated.

A municipal corporation situated on a lake could, by ordinance, have prevented persons from living in a houseboat upon such lake, where the ordinance was for the promotion of the general health and welfare of the citizens of the municipality. State v. Finney, 65 Idaho 630, 150 P.2d 130 (1944).

Cross References.

Consolidation of cities,§ 50-2101 et seq.

Petition to incorporate,§ 50-101.

Prior Laws.

Former§ 50-522, which comprised 1967, ch. 429, § 15, p. 1249; am. 1969, ch. 404, § 1, p. 1124; am. 1971, ch. 16, § 1, p. 29; am. 1972, ch. 37, § 1, p. 58; am. 1978, ch. 332, § 1, p. 861; am. 1979, ch. 89, § 1, p. 215, was repealed by S.L. 1993, ch. 55, § 2, effective January 1, 1995.

Another former§ 50-222, which comprised I.C.,§ 50-222, as added by 1993, ch. 55, § 3, p. 150; am. 1994, ch. 375, § 1, p. 1208; am. 1996, ch. 116, § 1, p. 427; am. 1998, ch. 191, § 1, p. 695, was repealed by S.L. 2002, ch. 333, § 1, p. 939.

Amendments.

The 2008 amendment, by ch. 118, subdivided and rewrote paragraph (3)(a) to the extent that a detailed comparison is impracticable; in paragraphs (3)(b)(i) and (3)(c), substituted “have not consented to annexation prior to the commencement” for “have evidenced their consent to annexation at the outset”; in subsection (4), substituted “shall be valid only when evidenced by written instrument” for “shall be deemed given when evidenced by written authorization or approval” in the first sentence, substituted “operated by the city only if the connection was requested or completed prior to July 1, 2008” for “operated by the city and for lands subject to a written consent to annex recorded in the county recorder’s office” in the second sentence, and substituted “Written consent to annex lands must be recorded in the county recorder’s office to be binding” for “Written consent to annex lands, if recorded in the county recorder’s office, shall be binding” in the third sentence; and rewrote paragraph (5)(c)(ii) to the extent that a detailed comparison is impracticable.

The 2009 amendment, by ch. 53, added the subsection (4)(a) designation, and therein, in the first sentence, inserted “and unless excepted in paragraph (b) of this subsection (4)” and “consenting to annexation” and deleted the former second sentence, which read: “Consent shall be implied for the area of all lands connected to a water or wastewater collection system operated by the city only if the connection was requested or completed prior to July 1, 2008”; and added subsection (4)(b). The 2019 amendment, by ch. 22, substituted “paragraph (a) of this subsection” for “subsection (4)(a) of this section” at the end of paragraph (4)(b); and added paragraph (5)(b)(v)(C).

The 2020 amendment, by ch. 240, added paragraph (5)(b)(v)(D).

Effective Dates.

Section 3 of S.L. 1996, ch. 116 declared an emergency. Approved March 6, 1996.

Section 4 of S.L. 1993, ch. 55 read: “An emergency existing therefor, which emergency is hereby declared to exist, Section 1 of this act shall be in full force and effect on and after passage and approval. Sections 2 and 3 of this act shall be in full force and effect on and after January 1, 1995.” Approved March 17, 1993.

Section 2 of S.L. 2019, ch. 22 declared an emergency. Approved February 14, 2019.

Section 2 of S.L. 2020, ch. 240 declared an emergency. Approved March 24, 2020.

Annexation.

City’s argument that a property owner’s action to have an annexation agreement declared unenforceable because it was not pursued at the “earliest practicable time” and was, therefore, barred under subsection (6) of this section lacked merit; the “earliest practicable time” language is not intended to restrict the party’s right. Old Cutters, Inc. v. City of Hailey (In re Old Cutters, Inc.), 488 B.R. 130 (Bankr. D. Idaho 2012), aff’d, 2014 U.S. Dist. LEXIS 45787 (D. Idaho Mar. 31, 2014).

Costs.

Idaho cities have the essential power to contract for annexation and to charge an annexation fee, if such fee is necessary to “equitably allocate the costs of public services in management of development on the urban fringe.” However, nothing in this phrase or in any other provision of this section can be read to empower a city to charge more than an amount necessary to equitably allocate the costs of the public services. City of Hailey v. Old Cutters, Inc. (In re Old Cutters, Inc), 2014 U.S. Dist. LEXIS 45787 (D. Idaho Mar. 31, 2014).

Judicial Review.

This section does not authorize judicial review of denial of a developer’s application for annexation because it does not authorize judicial review of a category A annexation under the administrative procedures act. The right of judicial review depends upon an affirmative decision to annex property, and the legislature did not provide for judicial review when a city decides not to annex property. Black Labrador Investing, LLC v. Kuna City Council, 147 Idaho 92, 205 P.3d 1228 (2009).

Under this section, judicial review is not authorized for category A annexations. In re City of Shelley, 151 Idaho 289, 255 P.3d 1175 (2011). City ordinance annexing a subdivision pursuant to category A was based on substantial evidence where the city produced a surveyed map showing the subdivision was contiguous to existing city property, and established that the subdivision had been using city water system for many years, thereby impliedly consenting to annexation. In re City of Shelley, 151 Idaho 289, 255 P.3d 1175 (2011).

Court was not precluded from reviewing the terms of an annexation agreement between a city and a property owner. Old Cutters, Inc. v. City of Hailey (In re Old Cutters, Inc.), 488 B.R. 130 (Bankr. D. Idaho 2012), aff’d, 2014 U.S. Dist. LEXIS 45787 (D. Idaho Mar. 31, 2014).

Validity of Annexation.

Property owner’s obligation in an annexation agreement to pay a fee unquestionably in excess of that required to compensate the city for actual costs resulting from the annexation was unenforceable because nothing in the grant of power to cities under subsection (1) of this section authorized the city to condition annexation upon payment by the owner of more than its equitable share of the costs to be incurred by the city in annexing the property. Old Cutters, Inc. v. City of Hailey (In re Old Cutters, Inc.), 488 B.R. 130 (Bankr. D. Idaho 2012), aff’d, 2014 U.S. Dist. LEXIS 45787 (D. Idaho Mar. 31, 2014).

Decisions Under Prior Law

Annexation.

Contiguous or adjacent land.

Description of property.

Equity.

Land subject to annexation.

Public street by dedication.

Railroad right of way.

Res judicata.

Validity of annexation.

Annexation.

Where adjacent land had been annexed to a city under former section governing annexation by second-class cities, and all parties concerned had acquiesced therein, the authority of the city in such annexation could not have been collaterally attacked. Hatch v. Consumers’ Co., 17 Idaho 204, 104 P. 670 (1909), aff’d, 224 U.S. 148, 32 S. Ct. 465, 56 L. Ed. 703 (1912).

Even when annexation was authorized, it must have been reasonable and the dividing of a drive-in theater business through the projection booth by the city limits line would have created problems, resulting in confusion in the levy of taxes, therefore such annexation of a part of the drive-in theater property would have been unreasonable. Batchelder v. City of Coeur d’Alene, 85 Idaho 90, 375 P.2d 1001 (1962).

Annexation is a legislative act of the city government accomplished by the enactment of an ordinance. Crane Creek Country Club v. City of Boise, 121 Idaho 485, 826 P.2d 446 (1990).

Contiguous or Adjacent Land.

Meaning of “contiguous or adjacent” land. Hatch v. Consumers’ Co., 17 Idaho 204, 104 P. 670 (1909), aff’d, 224 U.S. 148, 32 S. Ct. 465, 56 L. Ed. 703 (1912). Only contiguous or adjacent lands which owner had laid off in lots or blocks, or sold or begun to sell off in tracts not excluding five acres each, could have been annexed. Oregon Short Line R.R. v. Village of Chubbuck, 83 Idaho 62, 357 P.2d 1101 (1960).

An intervening river did not constitute a barrier to complete amalgamation of the communities upon its opposite banks and the construction applied to “contiguous or adjacent” to include both sides of the river, the river not being deemed a break to contiguity, was completely in accord with the legislative intent in the enactment of former§ 50-303. People ex rel. Redford v. Burley, 86 Idaho 519, 388 P.2d 996 (1964).

Description of Property.

The statutory notice requirements were satisfied if the notice fairly and accurately described the real property in question. Former statute could not be read to require more. City of Lewiston v. Bergamo, 119 Idaho 221, 804 P.2d 1352 (Ct. App. 1990).

Equity.

Appellant was not estopped by laches to question the validity of the ordinance annexing his land to the village where the record reflects that appellant had not received any special benefit as a result of the annexation and there was no showing of prejudice to the village, such as expenditures by it for the benefit of appellant’s property such as street improvements and sewer systems, etc., which would require the application of the doctrine of estoppel by laches, the fact that the symmetry of the village would be marred if appellant’s realty be disannexed being of small consideration, further the lapse of time, although important was not, standing alone, a determining factor. Finucane v. Hayden, 86 Idaho 199, 384 P.2d 236 (1963).

While annexation may be authorized under this section, it also must pass the test of reasonableness. Hendricks v. City of Nampa, 93 Idaho 95, 456 P.2d 262 (1969).

Land Subject to Annexation.

Land sought to be annexed must have been laid off by owner or under his authority into lots or blocks of not more than five acres each or he must have sold or begun to sell such lands by metes and bounds in tracts not exceeding five acres. Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006 (1925).

Land to be annexed under former annexation statute must have been contiguous or adjacent to city, town, or village. Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006 (1925).

Portions of owner’s original holdings still remaining in his possession could have been annexed, where he had subjected part of his land to annexation by the plattings and sales provided for by statute. Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006 (1925).

Ordinance annexing tract of land was void where 1,500 feet of land laid between city and the tract sought to be annexed. Hillman v. City of Pocatello, 74 Idaho 69, 256 P.2d 1072 (1953).

Territory to be annexed pursuant to former annexation statute must have been adjoining, contiguous, coterminous or abutting. Hillman v. City of Pocatello, 74 Idaho 69, 256 P.2d 1072 (1953).

Village ordinance which attempted to annex a strip of five acres of land connected to the village by a corridor strip or shoestring about three miles long and five feet wide mostly within a public highway was not valid, since the territory sought to be annexed was not contiguous or adjacent to the village. Potvin v. Chubbuck, 76 Idaho 453, 284 P.2d 414 (1955). Former annexation statute indicated by the words “shall have been” and “has sold” that the platting or sale by previous owners subjected the property to annexation. Batchelder v. City of Coeur d’Alene, 85 Idaho 90, 375 P.2d 1001 (1962).

Whenever land lying contiguous and adjacent to a municipality had been subdivided into lots or blocks containing not more than five acres, or had been subdivided or platted according to the laws of this state, or had been sold in tracts not exceeding five acres by the person or his authorized agent who was the owner of the land at the time of the subdividing, platting or selling, said land was thereafter subject to annexation under former annexation statute although the ownership of the land may have changed after the subdividing, platting or selling. Batchelder v. City of Coeur d’Alene, 85 Idaho 90, 375 P.2d 1001 (1962).

Once there has been a single sale of five acres or less from the tract, whether subdivided, platted or laid off or not, then the entire tract may be ripe for annexation, even though the remainder is greater than five acres. Hendricks v. City of Nampa, 93 Idaho 95, 456 P.2d 262 (1969).

Public Street by Dedication.

Alleged public street designated as such on a recorded plat was not a public street by dedication where strip of land designated as public street was not owned by the party recording the plat at the time the plat was filed. Worthington v. Koss, 72 Idaho 132, 237 P.2d 1050 (1951).

Strip of land did not become a public street by use where evidence showed only a small portion of strip used for spasmodic travel for period of two years, and presence of bush, trees, and fence on strip for long period of time. Worthington v. Koss, 72 Idaho 132, 237 P.2d 1050 (1951).

Railroad Right of Way.

The only restrictions on city’s annexation of railroad property under former similar section were that it must be reasonably assumed to be necessary for orderly city development and that it must be land connected to city by more than just “shoe string or strip of land upon a public highway,” therefore when the railroads failed to produce proof that the annexation was not necessary for the orderly development of the city, the presumption of the validity of the duly enacted municipal ordinance continued to prevail. Oregon S.L.R.R. v. City of Chubbuck, 93 Idaho 815, 474 P.2d 244 (1970).

Res Judicata.

Findings and judgment of the court in a prior case were not res judicata though same parties and issues were before the court because the controlling statute was substantially different as compared with the one under consideration before, and the record contained ample evidence that the city had changed substantially since the prior litigation. Oregon S.L.R.R. v. City of Chubbuck, 93 Idaho 815, 474 P.2d 244 (1970).

Validity of Annexation.

Where a village located in one county passed an ordinance annexing territory in another county, the prosecuting attorney of the county in which the land sought to be annexed was located, who filed an action for a declaratory judgment to determine validity of ordinance was entitled to maintain same as a quo warranto proceeding, though quo warranto was not the exclusive remedy for testing validity of annexation. Potvin v. Chubbuck, 76 Idaho 453, 284 P.2d 414 (1955). Municipal corporations had power to annex additional territory only under the conditions, restrictions and limitations which the legislature imposes; therefore if the essentials of the statute were lacking, annexation ordinance was void. Oregon Short Line R.R. v. Village of Chubbuck, 83 Idaho 62, 357 P.2d 1101 (1960).

The stipulation of the parties upon which the trial court based findings, showed without dispute that appellant’s agricultural lands had never been laid off, nor sold, nor bargained for sale, in lots, blocks or tracts of not exceeding five acres, therefore the annexation there under consideration, not having been accomplished in compliance with the statutory requirements, was void and the ordinance of the village so far as it attempted such annexation, was void. Finucane v. Hayden, 86 Idaho 199, 384 P.2d 236 (1963).

The requirement of former annexation statute to the effect that the “land” should have been platted or segregated as specified therein before it could be annexed did not apply to river beds or channels, specifically referring to land that was readily susceptible to such platting and subdividing. People ex rel. Redford v. Burley, 86 Idaho 519, 388 P.2d 996 (1964).

Plaintiffs, owners of lands annexed to city by ordinance enacted pursuant to former law with notice to plaintiffs, were estopped from questioning validity of ordinance despite fact that at least some of their annexed lands were unsubdivided portions larger than five acres, devoted to agricultural uses; where plaintiffs failed to protest at the time of enactment of the ordinance and delayed bringing suit for more than two years, and where, as a result of the annexation, the value of plaintiffs’ lands were enhanced by work and expenditures of the city. Alexander v. Trustees of Village of Middleton, 92 Idaho 823, 452 P.2d 50 (1969).

If the complaining party comes forward with sufficient evidence that the tract is greater than five acres, and that the land by present owner has not been laid off or subdivided into lots or blocks of more than five acres each, and that the present owner has not sold or begun to sell the land by metes and bounds in tracts not exceeding five acres, then such party will have satisfied the burden of coming forward with sufficient evidence to rebut the presumption of the validity of the ordinance. Hendricks v. City of Nampa, 93 Idaho 95, 456 P.2d 262 (1969).

ALR.

Right of one governmental subdivision to challenge annexation proceedings by another such subdivision. 17 A.L.R.5th 195.

Boundaries, capacity to attack the fixing or extension of municipal limits or boundary. 17 A.L.R.5th 195.

Refusal of municipality to annex impoverished area as violative of federal law. 22 A.L.R. Fed. 272.

Compiler’s Notes.

This section, which comprised I.C.,§ 50-222A, as added by 1989, ch. 134, § 1, p. 300, was repealed by S. L. 2002, ch. 333, § 3.

Cross References.

State tax commission,§ 63-101.

Effective Dates.

Section 2 of S.L. 1971, ch. 7, provided that the act should be in full force and effect on and after July 1, 1971.

Decisions Under Prior Law

Collateral attack.

Zoning effect of annexation.

Collateral Attack.

Collateral attack could not be made on annexation under former statute. Hatch v. Consumers’ Co., 17 Idaho 204, 104 P. 670 (1909), aff’d, 224 U.S. 148, 32 S. Ct. 465, 56 L. Ed. 703 (1912).

Zoning Effect of Annexation.

Former law, somewhat similar to this section, did not cause property annexed to the city to automatically fall within the most restrictive classification under a zoning ordinance placing in such classification “all those parts of the city not specifically included in other zones,” but such ordinance referred only to property within the city at the time of its enactment. Gaige v. City of Boise, 91 Idaho 481, 425 P.2d 52 (1967).

Cross References.

Cemetery maintenance district law,§ 27-101 et seq.

Compiler’s Notes.

The phrase “the date this act becomes effective” at the end of the section refers to the effective date of S.L. 1970, Chapter 47, which was effective May 6, 1970.

Effective Dates.

Section 2 of S.L. 1967, ch. 432 declared an emergency. Approved April 12, 1967.

CASE NOTES

Decisions Under Prior Law

Zoning of Annexed Territory.

Although former section, while treating only of taxation, implied abstractly that, upon annexation, a new addition to the municipality would be automatically worthy of all benefits and subject to all liabilities of city government subject only to the rule that existing property rights cannot willy-nilly be abrogated, such implication did not place annexed property automatically in the most restrictive classification under a zoning ordinance placing in such classification “all those parts of the city not specifically included in other zones.” Gaige v. City of Boise, 91 Idaho 481, 425 P.2d 52 (1967).

Decisions Under Prior Law

Taxpayer’s Objection.

The insignificant increase in a citizen and taxpayer’s tax burden, due to the loss of taxes and license fees by reason of the ordinance disannexing certain property from the city, was not sufficient to establish his right to maintain an action to invalidate a city ordinance disannexing certain property. His remedy by way of referendum, as provided by the charter and ordinance in question, was adequate and complete. Greer v. Lewiston Golf & Country Club, 81 Idaho 393, 342 P.2d 719 (1959).

Decisions Under Prior Law

Agreement not to detach lands.

Construction and validity.

Petition.

Agreement Not to Detach Lands.

A landowner was not bound by an agreement providing that he would not insist on having his land detached from a village if the village would change a road which crossed the land to another location thereon, where the village built another road on the landowner’s property and thereafter maintained both roads thereon instead of one. Chaney v. Middleton, 58 Idaho 289, 72 P.2d 850 (1937).

Construction and Validity.

Former sections governing separation of agricultural lands only gave court discretion to determine existence of facts upon which judgment of detachment may have been based and was not delegation of legislative power to judicial officer. Lyon v. Payette, 38 Idaho 705, 224 P. 793 (1924).

Facts that gave court power to determine enumerated. Ball v. Parma, 49 Idaho 40, 286 P. 24 (1930).

Petition.

In proceeding to detach agricultural lands from a city, allegations that the plaintiff was the owner of such lands and that they were used exclusively for agricultural purposes, were included in corporate limits of city and exceeded five acres in extent were sufficient, other allegations being merely surplusage. Hasbrouck v. City of Nampa, 56 Idaho 353, 55 P.2d 141 (1936). In proceeding to detach land from a village, the petition sufficiently alleged corporate existence of the village so as to conform to the statute authorizing such action where the village could not have been misled, notwithstanding the corporate existence was only inferentially alleged. Chaney v. Middleton, 58 Idaho 289, 72 P.2d 850 (1937).

Decisions Under Prior Law

Pleadings.

Former similar section was merely directory, and, where municipality had challenged sufficiency of petition and service, judgment of detachment should not have been entered until sufficiency had been determined. In re Smith, 38 Idaho 746, 225 P. 495 (1924).

Under procedure provided for in former similar section where a protestant has filed a motion to dismiss petition, a general and special demurrer and a protest, even though latter pleading was not filed two days before day set for hearing on petition, court had jurisdiction to hear issues tendered by such pleadings and could not properly strike or dismiss the same and default protestant because the protest was not filed within such time. In re Smith, 38 Idaho 746, 225 P. 495 (1924).

In proceeding to detach agricultural lands from a city, allegations that the plaintiff was the owner of such lands and that they were used exclusively for agricultural purposes, were included in corporate limits of city and exceeded five acres in extent were sufficient, other allegations being merely surplusage. Hasbrouck v. City of Nampa, 56 Idaho 353, 55 P.2d 141 (1936).

View of Premises.

A judge’s view of the premises considered in connection with the map of the city and respondents’ properties and the testimony relating to the lands surrounding respondents’ properties was sufficient to support the court’s finding that the overall symmetry of the city would not be materially marred by detachment of respondents’ properties from the city. Hammond v. City of Chubbuck, 95 Idaho 618, 515 P.2d 565 (1973).

Decisions Under Prior Law

Findings of fact and conclusions of law.

Purpose of view.

Findings of Fact and Conclusions of Law.

In proceeding by landowners to withdraw lands from a village, a failure of the trial court to find on an issue tendered by an allegation in the village’s answer and protest was not error under the statute providing that the making of written findings of fact or conclusions of law was not necessary. Chaney v. Middleton, 58 Idaho 289, 72 P.2d 850 (1937).

Purpose of View.

Former similar section authorized a view of the land merely to enable the court more correctly to determine the existence of the facts required by another section to be found before there could be a judgment detaching the land, and therefore constituted no delegation of legislative power to the court. Lyon v. Payette, 38 Idaho 705, 224 P. 793 (1924).

Detachment Inappropriate.

Where pastureland was surrounded by land being used in a variety of ways, from stockyards to homes, but all of the uses related to the existence of the community, detachment of the land was inappropriate. Ramey v. City of Blackfoot, 99 Idaho 264, 580 P.2d 1289 (1978). The landowners did not meet their burden to support the separation of their land from the corporate limits by proving land use exclusively for agricultural purposes, because although some trees had been taken from the property and some seedlings were planted at one time, there had been no ongoing cultivation of the soil, harvesting of crops, or production of plants. Williamson v. City of McCall, 135 Idaho 452, 19 P.3d 766 (2001).

Special Benefits.

Where police and fire protection were the only “special benefits” relied on by city to justify retention of tract of land within the city, the court did not abuse discretion in finding that such were not special benefits. Hammond v. City of Chubbuck, 95 Idaho 618, 515 P.2d 565 (1973).

Symmetry.

Where respondents introduced a map of the city and the surrounding area showing the relationship between the city and respondents’ properties and respondents both testified concerning the various properties bordering their land, such evidence was competent relating to the question of symmetry. Hammond v. City of Chubbuck, 95 Idaho 618, 515 P.2d 565 (1973).

Symmetry means more than due proportion of the parts of a body, conformance and consistency, and correspondence or similarity of form on opposite sides of an axis or center, it also involves the ability of the municipality to regulate adjoining lands whose use affects the quality of life in residential and business districts of the community; thus, symmetry requires not only regularity in the shape of the city, but also a measure of consistency, harmony and uniformity of regulation. Ramey v. City of Blackfoot, 99 Idaho 264, 580 P.2d 1289 (1978).

The finding that the symmetry of the city would be materially marred by the detachment of the property was supported by substantial and competent evidence based on the district judge’s personal observations, maps, testimony and observations regarding the use of the surrounding properties, and the city’s ability to regulate adjoining lands whose use would affect the quality of life in residential districts. Williamson v. City of McCall, 135 Idaho 452, 19 P.3d 766 (2001).

Decisions Under Prior Law

Construction.

Date of detachment.

Findings of fact and conclusions of law not necessary.

Questions of fact.

Symmetry.

Construction.

Former similar section vested the court with no discretion except that of determining the existence of the facts therein specified and did not constitute a delegation of legislative power to the court, the duty of the court to render the judgment therein mentioned being mandatory. Lyon v. Payette, 38 Idaho 705, 224 P. 793 (1924).

Date of Detachment.

Findings of Fact and Conclusions of Law Not Necessary.

Matter of detachment of lands from municipality was purely legislative, and legislature may fix date of judgment as date of detachment. Oakley v. Wilson, 50 Idaho 334, 296 P. 185 (1931). Findings of Fact and Conclusions of Law Not Necessary.

In proceeding by landowners to withdraw land from a village, a failure of the trial court to find on an issue tendered by an allegation in the village’s answer and protest was not error under the statute providing that the making of written findings of fact or conclusions of law was not necessary. Chaney v. Middleton, 58 Idaho 289, 72 P.2d 850 (1937).

Questions of Fact.

In proceeding by landowners to withdraw land from a village, whether land received sufficient special benefit to justify its retention within the corporate limits of the village was a question of fact for the trial court. Chaney v. Middleton, 58 Idaho 289, 72 P.2d 850 (1937).

Symmetry.

Where detachment of all tracts covered by petition would mar symmetry of municipality, detachment may have been awarded as to one or more tracts which would not do so. Maxwell v. Buhl, 40 Idaho 644, 236 P. 122 (1925).

Word “symmetry” as used in former similar section had not been judicially defined. In determining whether or not symmetry of city would be materially marred by detachment, regard must have been had to contours of land covered by city. Gullies and hills, while geometrically marring symmetry, may still have left city symmetrical in terms of former section. Maxwell v. Buhl, 40 Idaho 644, 236 P. 122 (1925).

Symmetry was discussed, and evidence in case was held sufficient to sustain finding that land in question was not entitled to detachment. Ball v. Parma, 49 Idaho 40, 286 P. 24 (1930).

Evidence justified judgment detaching lands from city on the ground that the plaintiff owned lands in excess of five acres within the corporate limits of the city, which were being used exclusively for agricultural purposes, and which did not receive sufficient special benefits, and that symmetry of city would not have been materially marred by their detachment. Hasbrouck v. City of Nampa, 56 Idaho 353, 55 P.2d 141 (1936).

Decisions Under Prior Law

Liability for Bond Payments.

Lands detached from municipality were taxable for payment of bonds issued after petition for detachment was filed but before judgment of detachment was rendered. Oakley v. Wilson, 50 Idaho 334, 296 P. 185 (1931).

Compiler’s Notes.

The words “this chapter” probably refer to§§ 50-226 — 50-233, which concern separation of agricultural lands.

Cross References.

Airports, tax levy,§ 21-404.

Capital improvement fund levy,§ 50-236.

Certification and collection of city taxes,§ 50-1007.

Policemen’s pension, tax levy,§ 50-1512.

Recreation and culture, special levy,§ 50-303.

Special assessments for local improvements,§ 50-1701 et seq.

Special tax assessments,§ 50-1004.

Decisions Under Prior Law

Construction.

License tax.

Property road tax.

Construction.

Previous preparation and publication of estimate of probable amount of money necessary to be raised for all purposes, and passage of appropriation bill, constituted condition precedent to action under former section governing tax levies for general purposes. Graves v. Berry, 35 Idaho 498, 207 P. 718 (1922).

License Tax.

Property Road Tax.

Municipal corporations could not, in the exercise of their police power, levy and collect a license tax upon individuals or businesses for purposes of revenue (distinction between revenue and regulatory purposes). State v. Nelson, 36 Idaho 713, 213 P. 358 (1923). Property Road Tax.

Power of towns and villages to levy a tax for general revenue purposes did not authorize them to levy a property road tax. City of Genesee v. Latah County, 4 Idaho 141, 36 P. 701 (1894).

Cross References.

Bond issues,§ 50-1019 et seq.

Cross References.

Contracts with water companies for municipal water supply,§ 30-801.

Corporations, municipal corporation may not become stockholder, Idaho Const., Art. XII, § 4.

Declaratory Judgment Act, “municipal corporation” included in term “person,”§ 10-1213.

Declaratory judgments, rights affected by municipal ordinance,§ 10-1202.

Eminent domain,§ 7-701 et seq.

Garnishee, liability of municipal officers as,§ 11-727.

Hospital services, contract for,§ 39-1416.

Interest rate on warrants after presentment for payment,§ 31-2124; indorsement when not paid upon presentation,§ 31-2125.

Joint city and county sites and buildings,§ 31-1005.

Libraries, establishment,§ 33-2614.

Municipal corporations may contract indebtedness and own property for school, water, sanitary, and illuminating purposes, Idaho Const., Art. XII, § 4.

Rights of way for water and canal corporations,§ 30-802; works not to obstruct public highways,§ 30-803.

Venereal diseases, examination and treatment of inmates of city prisons,§ 39-604.

Water for domestic purposes, sanitary regulations,§ 37-2102.

Worker’s compensation law applies to municipal officers and employees,§ 72-205.

Compiler’s Notes.

The term “this act” near the beginning of the section refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code.

Construction of Powers.

Because the authority to impose annexation fees in excess of an equitable allocation of costs is not authorized under§ 50-222, a city cannot rely upon this section as authority for the imposition of such fees. City of Hailey v. Old Cutters, Inc. (In re Old Cutters, Inc), 2014 U.S. Dist. LEXIS 45787 (D. Idaho Mar. 31, 2014).

Decisions Under Prior Law

Construction of powers.

Filling stations.

Franchise ordinance subject to rate supervision.

Houseboats.

Municipal police power.

Nature of powers.

Right to sue.

Tort liability.

Construction of Powers.

Where statutory power of municipality was ambiguous, courts lean strongly toward doctrine of permitting municipalities to control their own local affairs. Hodges v. Tucker, 25 Idaho 563, 138 P. 1139 (1914).

Municipal corporations possessed only such powers as state conferred upon them, and only such rights could be exercised by them as were clearly conferred by state or were necessarily implied; any ambiguity or doubt must have been resolved in favor of the granting power, and regard must also have been had to constitutional provisions to secure liberty and protect rights of citizens. State v. Frederic, 28 Idaho 709, 155 P. 977 (1916).

Where power or authority was given to municipalities, it carried with it by implication the doing of those things necessary to make such things effective and complete, and a discretion as to manner in which power was to be carried out, if not specifically provided. Veatch v. Gibson, 29 Idaho 609, 160 P. 1112 (1916).

Filling Stations.

City could have passed ordinance governing erection of filling stations. Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353 (1930).

Franchise Ordinance Subject to Rate Supervision.

Under former law a city had power to pass an ordinance and franchise contract for establishment of water system, but any such contract was subject always to power of legislature to prescribe a method of determining reasonable maximum rates to be charged as rental. City of Pocatello v. Murray, 21 Idaho 180, 120 P. 812, aff’d, 226 U.S. 318, 33 S. Ct. 107, 57 L. Ed. 239 (1912).

Houseboats.

Prohibiting anchoring or maintaining crafts used as residences as within city ordinance power in the interest of general health and welfare. State v. Finney, 65 Idaho 630, 150 P.2d 130 (1944).

Municipal Police Power.

The vested right of a riparian owner to use a lake for mooring houseboat was subject to municipal police power and could be prohibited by ordinance. State v. Finney, 65 Idaho 630, 150 P.2d 130 (1944).

Nature of Powers.

In granting a franchise by which rates are fixed or determined, municipal corporation was not exercising its own powers, but only such powers as have been conferred upon it by state. These powers could have been withdrawn at any time. It had no vested right to continued exercise of them, nor could it thereby obtain a vested right in any contract entered into or property acquired as against right of state. Sandpoint Water & Light Co. v. City of Sandpoint, 31 Idaho 498, 173 P. 972 (1918).

Right to Sue.

A village was a corporate entity, with right to sue in a proper court. While a village itself might have abated nuisance within its limits, in order to have abated public nuisance outside its boundaries, it was probably necessary, and undoubtedly proper, for it to apply to a court of equity for aid in protecting it from such harmful influence. Village of Am. Falls v. West, 26 Idaho 301, 142 P. 42 (1914).

Tort Liability.

Cities and villages organized under general laws were liable in damages for a negligent discharge of the duty of keeping such streets and alleys in a reasonably safe condition for use by travelers. Carson v. City of Genesee, 9 Idaho 244, 74 P. 862 (1903).

Membership in Associations.

Payment of dues to municipal leagues or associations by cities and counties is an expenditure for a public purpose permitted by the Idaho constitution and statutes. The use of those dues for lobbying efforts is permissible if the lobbying is for an appropriate public purpose.OAG 89-7.

Elected officials may discuss potential public policy issues and determine association policy at meetings of the association of Idaho cities and Idaho association of counties. But local public policy must be determined and adopted only after compliance with Idaho law, including the Idaho Open Meetings Law [§ 74-201 et seq.], and all other applicable laws in title 31 or 50, Idaho Code.OAG 89-7.

Private Peace Officers.

No authority exists for a city to appoint the employees of a private company to serve as “peace officers.”OAG 08-02.

ALR.

Validity of municipal regulation of aircraft flight paths or altitudes. 36 A.L.R.3d 1314.

Power of municipal corporation to limit exclusive use of designated lanes or streets to buses and taxicabs. 43 A.L.R.3d 1394.

Power of municipal corporation to lease or sublet property owned or leased by it. 47 A.L.R.3d 19.

Validity of municipal regulation more restrictive than state regulation as to time for selling or serving intoxicating liquor. 51 A.L.R.3d 1061.

Power of municipality to charge nonresidents higher fees than residents for use of municipal facilities. 57 A.L.R.3d 998.

Right of municipality to refuse services provided by it to resident for failure of resident to pay for other unrelated services. 60 A.L.R.3d 714.

Validity of state or local regulation dealing with resale of tickets to theatrical or sporting events. 81 A.L.R.3d 655.

Validity, construction, and effect of juvenile curfew regulations. 83 A.L.R.4th 1056.

Cross References.

Municipal corporations may make and enforce local police regulations, Const., Art. XII, § 2.

Ordinances,§ 50-901 et seq.

Compiler’s Notes.

The term “this act” in the first sentence in subsection (1) refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code.

Effective Dates.

Section 3 of S.L. 2000, ch. 35 provided that the act shall be in full force and effect on and after July 1, 2000.

Control of Public Intoxication.

Where a city ordinance, which made it a misdemeanor for a person to be intoxicated while in a private motor vehicle located in a public place, was directed toward the control of public intoxication, the ordinance was a valid exercise of the authority delegated to the city by this section to maintain the peace, good government, and welfare of the city. Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976).

Municipal Ordinance Must Yield to State Statute.

The provisions of a city ordinance must yield to the provisions of a state statute under Idaho Const., Art. XII, § 2. Accordingly, where defendant, upon approach of police car, which displayed flashing lights but did not sound siren, turned left in front of police car causing collision rather than pulling to right-hand side of road or stopping, conviction under§ 49-645 [now§ 49-625], which requires that drivers yield for either an audible or visual signal, was upheld even though the Boise City Code requires both an audible and visible signal. State v. Barsness, 102 Idaho 210, 628 P.2d 1044, appeal dismissed, 454 U.S. 958, 102 S. Ct. 495, 70 L. Ed. 2d 373 (1981).

Decisions Under Prior Law

Construction of grants of power.

Filling stations.

Full police power over local concern.

Indictable misdemeanors.

Trials for violation.

Void ordinance.

Construction of Grants of Power.

Under grants of power by legislature to municipal corporations, only such powers and rights could be exercised as were clearly comprehended within words of granting act or derived therefrom by necessary implication, regard being had to object of grant. Any ambiguity or doubt arising out of terms used by legislature must be resolved in favor of granting power. Regard must also have been had to constitutional provisions intended to secure liberty and to protect rights of citizens, to the end that no citizen shall be deprived of life, liberty or property without due process of law. State v. Frederic, 28 Idaho 709, 155 P. 977 (1916).

Provisions of former similar section were broad powers, but were to be looked to as limitations upon, rather than grants of power to, the municipalities. Rowe v. City of Pocatello, 70 Idaho 343, 218 P.2d 695 (1950).

Filling Stations.

Municipal corporations may adopt ordinances regulating establishment of filling stations. Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353 (1930).

Full Police Power over Local Concern.

Indictable Misdemeanors.

Where a city ordinance of Boise City classified dogs in a different manner than state statute and forbade owners to allow a vicious dog to run at large, the conviction of the owner for a violation of the city ordinance was not improper because Boise City possesses full police power over affairs of local concern. State v. White, 67 Idaho 309, 177 P.2d 472 (1947). Indictable Misdemeanors.

Municipality had no power to confer upon police judges jurisdiction summarily to hear and determine acts denominated by general law of state as indictable misdemeanors by enactment of an ordinance prohibiting such acts and prescribing a punishment therefor. State v. Frederic, 28 Idaho 709, 155 P. 977 (1916).

Trials for Violation.

Defendant convicted in municipal court of driving car on city street while intoxicated in violation of city ordinance on appeal to district court was entitled to trial by jury, since defendant was entitled to a trial de novo as though started or commenced in district court, and in district court the defendant was entitled to jury trial. Miller v. Winstead, 75 Idaho 262, 270 P.2d 1010 (1954).

Void Ordinance.

That portion of an ordinance attempting to provide for imprisonment in village jail, except for default in payment of fine and costs, was held void. State v. Bird, 29 Idaho 47, 156 P. 1140 (1916).

Disaster Preparedness.

Although§ 46-1009 requires the counties to prepare a disaster emergency plan, there is no comparable statute explicitly requiring the cities to participate. Thus, unlike counties, cities are not required to plan for disaster emergencies. Once a disaster emergency occurs within the city’s limits, however, the city government has the responsibility to handle the situation.OAG 89-9.

The cities have the ultimate authority to plan for disaster emergencies. Although not statutorily required to plan for disaster emergencies, cities are strongly urged to do so in order to minimize the risk of injury to their citizens.OAG 89-9.

Effective Dates.

Section 2 of S.L. 1970, ch. 30 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Liability for Costs of Jailing.

While this section does make the city liable to the county for the cost of jailing prisoners charged with or convicted of a city ordinance and§ 20-605 places on the city liability for the cost of keeping prisoners in other counties if that offending person was either initially arrested by a city police officer for violation of a city ordinance or for violation of the state motor vehicle laws. Nevertheless, a city is not liable for the cost of keeping prisoners in the county jail if the prisoner has been arrested by a city police officer for violation of a state motor vehicle law. The county has “the duty” to pay for the incarceration of such prisoners. County of Bannock v. City of Pocatello, 110 Idaho 292, 715 P.2d 962 (1986).

This section requires the city to pay the county for the cost of confining any person charged with or convicted of violation of a city ordinance; it does not require the city to pay for city ordinance violators who were confined in contiguous counties. County of Bannock v. City of Pocatello, 110 Idaho 292, 715 P.2d 962 (1986).

Sheriff’s Duty.

Counties are responsible for the cost incurred by the county jail in housing a prisoner who has been charged with a state law violation committed within city limits and investigated by city police officers, and, while counties may bring legal action to recoup jail costs incurred for city prisoners charged under city ordinances or state motor vehicle laws, sheriffs cannot refuse to accept city prisoners.OAG 84-4.

Cross References.

Hospital licensing and inspection,§ 39-1301 et seq.

Health facilities construction act,§ 39-1401 et seq.

Joint city and county hospitals,§ 31-3701 et seq.

Joint municipal health facilities authorized,§ 39-1416.

Liens in favor of hospitals,§ 45-701 et seq.

Effective Dates.

Section 2 of S.L. 1990, ch. 409 declared an emergency. Approved April 12, 1990.

Section 2 of S.L. 1995, ch. 222 declared an emergency. Approved March 20, 1995.

Cross References.

Public utilities commission may order improvements,§ 61-508.

Railroads in general, Title 62, Idaho Code.

Railroads not to use streets without two-thirds vote by municipal authorities, Idaho Const., Art. XI, § 11;§ 62-205.

Safety regulations,§ 61-515.

Compiler’s Notes.

The bracketed word “levees” was inserted near the middle of the section by the compiler to correct the enacting legislation.

Decisions Under Prior Law

Constitutionality.

Extent of protection of ordinance.

Interstate commerce.

Power to regulate.

Railroad annexation.

What constitutes depot.

Constitutionality.

A court should have declared an ordinance enacted pursuant to former section governing regulation of railroads, limiting the speed of trains within a city, invalid only if it clearly appeared to be unnecessary and unreasonable for the safety of the public. Frazier v. Northern Pac. R.R., 28 F. Supp. 20 (D. Idaho 1939).

A municipal ordinance enacted pursuant to former section governing regulation of railroads, limiting the speed of trains to 8 miles per hour within a city, was not invalid on the ground of discrimination between railroad and bus lines within the city. Frazier v. Northern Pac. R.R., 28 F. Supp. 20 (D. Idaho 1939).

Extent of Protection of Ordinance.

A nine year old boy, flying a kite on a railroad track within a city’s limits, was entitled to the protection of a municipal ordinance, enacted pursuant to former section governing regulation of railroads, limiting the speed of trains to 8 miles per hour within the city’s limits. Frazier v. Northern Pac. R.R., 28 F. Supp. 20 (D. Idaho 1939).

Interstate Commerce.

A municipal ordinance enacted under the authority of former section governing regulation of railroads, limiting the speed of trains within a city to 8 miles per hour, was not an unconstitutional interference with interstate commerce, as applied to a train operated in interstate commerce. Frazier v. Northern Pac. R.R., 28 F. Supp. 20 (D. Idaho 1939).

Power to Regulate.

Under the law, the fact that the legislature had given power to the public utilities commission to regulate the speed of railway trains did not prevent a city from doing so in the absence of a showing that the commission had taken action. Frazier v. Northern Pac. R.R., 28 F. Supp. 20 (D. Idaho 1939).

Railroad Annexation.

Former section concerning transportation terminals did not give village power to annex railroad land. Oregon Short Line R.R. v. Village of Chubbuck, 83 Idaho 62, 357 P.2d 1101 (1960).

What Constitutes Depot.

Depot and station grounds included all grounds necessary for switching and making up trains together with sufficient space beyond switches to permit trains to clear and to allow train crews to walk from train to switch without passing over cattle guards. Ferrell v. Oregon Short Line R.R., 44 Idaho 217, 256 P. 104 (1927).

Decisions Under Prior Law

Limitation on Power.

Former similar section was not intended to give authority to municipalities to raise any amount of revenue they may decide necessary by imposition of license or per capita tax upon its citizens. State v. Nelson, 36 Idaho 713, 213 P. 358 (1923).

Municipal corporations could not, in the exercise of their police power, levy and collect a license tax upon individuals or businesses for purposes of revenue. State v. Nelson, 36 Idaho 713, 213 P. 358 (1923).

Cross References.

Preemption by state of firearms regulation,§ 18-3302J.

Amendments.

The 2013 amendment, by ch. 223, deleted “to regulate, prevent and punish for the carrying of concealed weapons” following “disorderly assemblies.”

Cross References.

Collective bargaining by municipal firefighters,§ 44-1801 et seq.

County fire-fighting districts, cooperating and reciprocating use of fire-fighting apparatus,§ 31-1430.

Municipalities authorized to extend police and fire protection to county fair,§ 22-209.

Nonliability of agency for delay in reporting fire, exception,§ 31-1436.

Worker’s compensation law applies to firemen,§ 72-205.

Compiler’s Notes.

Sections 50-1201 through 50-1210, referred to in subsection B, were repealed by S.L. 1975, ch. 188, § 1. For present comparable law, see§ 67-6501 et seq.

Decisions Under Prior Law

Authorization for maintenance.

Fire departments.

Fire limits.

Governmental function.

Liability for torts.

Authorization for Maintenance.

Fire Departments.

Municipal corporations without classification as to class, and cities of the second class, in their corporate capacities were legislatively authorized to prevent and extinguish fires and to acquire all necessary apparatus and equipment, including engine houses, to maintain a fire department. Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958). Fire Departments.

Municipal corporations without classification as to class, and cities of the second class, in their corporate capacities were legislatively authorized to prevent and extinguish fires and to acquire all necessary apparatus and equipment, including engine houses, to maintain a fire department. Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958).

Fire Limits.

Power to provide for demolition of buildings constructed in violation of an ordinance establishing fire limits within a village was necessarily implied in order to make ordinance effective. Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918).

Governmental Function.

A municipal corporation was not liable for negligence in maintaining a pole extending through a hole in the floor from the firemen’s quarters to the fire fighting apparatus on the floor below since such was in the exercise of a governmental function. Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958).

Since a municipality in the maintenance of its fire department exercised governmental functions, it had been held generally that a municipality was not liable for the negligence of officers and servants in connection with its fire department. Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958).

While the legislative grant authorizing municipal corporations to establish fire departments was couched in permissive language, nevertheless a municipal corporation was exercising a governmental function when maintaining and operating a fire department pursuant to legislative authority. Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958).

Liability for Torts.

The overwhelming weight of authority was to the effect that the municipal corporation was not liable for torts arising from a defective condition or negligent construction or operation of its fire fighting facilities and apparatus. Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958).

Compiler’s Notes.

The bracketed words “such alley” were inserted in the last sentence by the compiler to correct the enacting legislation.

Effective Dates.

Section 2 of S.L. 1973, ch. 268 provided the act should take effect on and after July 1, 1973, and should be effective with respect to dedicated alleys which had heretofore been unused as alleys.

Alley.

The legislature has provided this section as the method for municipal corporations to follow when vacating an alley; this section does not empower a municipal corporation to impose any conditions upon the vacation of an alley except for the proviso regarding impairment of the right of way, easements, and franchise rights of lot owners and public utilities. Black v. Young, 122 Idaho 302, 834 P.2d 304 (1992).

Where the evidence did not rebut the presumption that one-half of a vacated alley was conveyed with a first conveyance, even though the alley was not expressly mentioned, the decision of the district judge in favor of the grantee of that conveyance was affirmed. Carney v. Heinson, 133 Idaho 275, 985 P.2d 1137 (1999).

There is no substantive limitation on the power of a city to vacate under this provision, since the language merely indicates that reversion of ownership to adjacent landowners does not affect the rights of those who hold existing rights-of-way or easements independent of the public right-of-way that is vacated. Allison v. City of Coeur d’Alene, 133 Idaho 560, 990 P.2d 141 (1999).

A lot owner whose property has been taken pursuant to this provision may seek compensation or challenge a city’s procedures or findings, but may not challenge the validity of the city’s actions solely because his rights have been impaired. Allison v. City of Coeur d’Alene, 133 Idaho 560, 990 P.2d 141 (1999).

Construction With Other Law.

There is a clear distinction between a city vacating a city street and a city exchanging a portion of a city street for other property. The vacation of a city street is governed by this section and, if the street is part of a plat or subdivided tract, by§ 50-1321. The exchange of city real property for other property is governed by§ 50-1403. Moreover, under Idaho law, a city has no authority to convey a portion of a city street. Infanger v. City of Salmon, 137 Idaho 45, 44 P.3d 1100 (2002).

Legislative Intent.

The primary intent of this section is to settle ownership of property after vacation and provide that a newly vacated parcel becomes part of the adjoining property rather than becoming an independent parcel owned by the landowner. Carney v. Heinson, 133 Idaho 275, 985 P.2d 1137 (1999).

Ordinance.

Reversion.

A city ordinance that is in conflict with a state law of general application is invalid; this section, which applies to all municipal corporations in the State of Idaho and is an act of the state legislature, is clearly a state law of general application. It provides the method for municipal corporations to follow in vacating alleys. The two conditions that city imposed upon vacation of the alley, as well as the right of reversion should a certificate of occupancy not be issued, were not expressly granted powers, fairly implied powers from the clear language of this section, nor powers essential to the vacation of the alley; the only condition that this section allows upon a finding of expedience for the public good is that the vacation cannot impair “the right of way, easements and franchise rights of any lot owner or public utility.” Thus, the two conditions, as well as the right of reversion, were ultra vires acts by city because they conflicted with this section. Black v. Young, 122 Idaho 302, 834 P.2d 304 (1992). Reversion.

Reversion provision only applies to an alley, not a road. Christensen v. City of Pocatello, 142 Idaho 132, 124 P.3d 1008 (2005).

Decisions Under Prior Law

Appraisal of damages.

Bridges.

Construction.

Construction with eminent domain law.

Damages for vacation.

Discretion.

Discretionary power.

Discrimination.

Effect of recording plat.

Irrigation districts.

Jurisdiction exclusive.

Liability for negligence.

Procedure.

Road levy.

Sewers.

Vacation for private uses.

When conveyance unnecessary.

Appraisal of Damages.

Damages to be appraised under former similar section were damages and injuries resulting from vacation of a street and taking of same either by city for its exclusive use, or granting of right to take same to a railway company or any other company making exclusive use of same. Under constitution and statute, a city had no right to condemn or vacate a street for private use of a railway company until full compensation had been made for all injury which would result from such taking. Trueman v. Village of St. Maries, 21 Idaho 632, 123 P. 508 (1912).

Bridges.

Counties were not required to construct and maintain bridges exceeding sixty feet in length, at expense of county, over streams crossing highway within limits of municipal corporations. City of Kellogg v. McRae, 26 Idaho 73, 141 P. 86 (1914).

Construction.

Under existing statutes, city council or village trustees of incorporated cities and towns had exclusive control of streets and highways within their corporate limits, which includes full power to construct bridges and maintain same. City of Kellogg v. McRae, 26 Idaho 73, 141 P. 86 (1914). Construction.

Former statutes clearly conferred full power and authority upon mayor and common council of all cities within state to enact ordinances providing for paving and improvement of streets and buildings of storm sewers and drains and for construction of sidewalks. Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034 (1912).

Terms “special assessments,” “special tax,” and “taxes” were used interchangeably. Hunt v. City of St. Maries, 44 Idaho 700, 260 P. 155 (1927).

Construction With Eminent Domain Law.

Neither former similar section nor former section concerning eminent domain required any notice and left all matters to an ordinance, and ordinance was required to comply with provisions of constitution and statutes of this state in exercising right of eminent domain. Trueman v. Village of St. Maries, 21 Idaho 632, 123 P. 508 (1912); Thomas v. Boise City, 25 Idaho 522, 138 P. 1110 (1914).

Damages for Vacation.

One whose property did not abut on the part of the street so vacated could not maintain an action to enjoin the enforcement of the ordinance, though he, in common with others, may have been inconvenienced by such vacation. Canady v. Coeur d’Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911).

Where the authorities, by vacating a street, cut off the property owner’s ingress to or egress from his property, they caused a loss or damage to him not common to the rest of the community and he had a right of action for such injury. Canady v. Coeur d’Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911).

A municipal corporation granting a right of way in its governmental capacity was not liable for damages occasioned by the grantee’s use of the easement. Trueman v. Village of St. Maries, 21 Idaho 632, 123 P. 508 (1912).

Discretion.

Right to vacate a street or a part thereof was largely in discretion of body possessing that power, and such body may determine as to public convenience and necessity of such discontinuance, and where there had been no glaring informality or illegality in proceedings, its judgment should not have been disturbed. Canady v. Coeur d’Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911).

Discretionary Power.

Municipality was vested with certain discretion in respect to grading and preparing full width of street so as to render same fit for travel. Smith v. City of Rexburg, 24 Idaho 176, 132 P. 1153 (1913).

Discrimination.

The closure of designated curb cuts and reconstruction of the curb ordered by the common council of Boise City, on the ground that the curb cuts in question were not being used and were unnecessary, was sustained by the evidence and disclosed no unreasonable exercise of discretion on the part of the city. Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964). Discrimination.

Paving assessment against abutting property was held not discriminatory because city paved street in front of other property abutting on line of improvement at its own expense. Noble Estate v. City of Boise City, 19 F.2d 927 (D. Idaho 1927).

Effect of Recording Plat.

Effect of recording plat was to vest in city determinable fee for public use of surface of street. Mochel v. Cleveland, 51 Idaho 468, 5 P.2d 549 (1930).

Irrigation Districts.

In exercising its right to grade its streets, city could, if necessary, remove ditches and require their reconstruction by pipelines laid beneath surface by company possessing franchise and easement for such ditches. City of Nampa v. Nampa & Meridian Irrigation Dist., 19 Idaho 779, 115 P. 979 (1911).

Former sections concerning street improvements and bond issuance gave cities power to destroy an irrigation ditch where necessary in the reconstruction of roadbeds and grades. City of Nampa v. Nampa & Meridian Irrigation Dist., 19 Idaho 779, 115 P. 979 (1911).

Power conferred upon irrigation districts to enter streets and alleys of municipalities did not repeal or interfere with power of such municipalities to exercise control of their streets and alleys and to regulate manner of their use, and to direct manner in which such irrigation district shall construct and maintain its ditches, canals, and laterals within such municipalities. Nampa v. Nampa & Meridian Irrigation Dist., 23 Idaho 422, 131 P. 8, appeal dismissed, 238 U.S. 643, 35 S. Ct. 602, 59 L. Ed. 1502 (1913).

In suit by property owners for an injunction and damages for failure of city to deliver irrigation water to their properties pursuant to contract by means of ditch running through townsite, the city could not contend on appeal that it was authorized to control alleys, streets, sewers and drains to the exclusion of any permissive use, since the property owners did not allege any permissive use, but only asserted a right under contract to the transmission of irrigation waters through the townsite. Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 (1955).

Jurisdiction Exclusive.

Right of towns and villages to repair highways, streets and alleys was exclusive, and county commissioners could not authorize a road overseer to go within limits of any organized town or village to repair, or interfere with, its streets or alleys. City of Genesee v. Latah County, 4 Idaho 141, 36 P. 701 (1894).

Liability for Negligence.

Cities and villages incorporated under general laws of state were liable in damages for a negligent discharge of duty of keeping streets and alleys in a reasonably safe condition for use by travelers in usual modes. Miller v. Mullan, 17 Idaho 28, 104 P. 660 (1909).

If abutting property was injured by a city, while it was lawfully exercising its power in grading streets and in reconstructing the roadbed, city was not answerable in damages, in absence of a statute expressly imposing such liability. City of Nampa v. Nampa & Meridian Irrigation Dist., 19 Idaho 779, 115 P. 979 (1911); Crane v. Harrison, 40 Idaho 229, 232 P. 578 (1925), overruled on other grounds, Hughes v. State, 80 Idaho 286, 328 P.2d 397 (1958). City officials must have understood that if they neglected to keep streets and alleys in proper repair, and injury resulted from such negligence, city was liable for damages, and the officer who neglected his duty in making proper inspection of streets and sidewalks, by reason whereof personal injury resulted, was liable to city. Powers v. Boise City, 22 Idaho 286, 125 P. 194 (1912).

City council had to keep streets, alleys, bridges, etc., of city open, in repair and free from nuisance, and could require persons to remove encroachments on same at expense of such persons, and were liable in damages for injuries resulting from neglect of such duty, as to obstructions on and above the streets, etc. Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850 (1913).

To charge city with liability for damages, it was not necessary that it had notice of a nuisance. City was charged with the duty of keeping streets and sidewalks free for use and passage without danger. Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850 (1913).

Incorporated cities and village were liable in damages for negligence in failing to maintain streets and alleys in reasonably safe conditions for travel. City of Kellogg v. McRae, 26 Idaho 73, 141 P. 86 (1914).

Procedure.

Court should decide as matter of law that use for which condemnation was sought was public use; after that, question of extent of enterprise and necessity for taking should have been in large measure left to judgment and discretion of public agency seeking to make condemnation. Washington Water Power Co. v. Waters, 19 Idaho 595, 115 P. 682 (1911); Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006 (1925).

After additional territory had been annexed, city had authority to condemn parcels for street improvements. Boise City v. Boise City Dev. Co., 41 Idaho 294, 238 P. 1006 (1925).

Road Levy.

Levy authorized under former section governing street improvements to be made by municipality was in addition to road levy authorized to be made by the county commissioners under§ 40-501, a portion of which was apportioned to city. Hettinger v. Good Rd. Dist. No. 1, 19 Idaho 313, 113 P. 721 (1911); Shoshone Hwy. Dist. v. Anderson, 22 Idaho 109, 125 P. 219 (1912).

Sewers.

Cities and villages had power to construct all necessary and incidental works for a complete sewerage system. Veatch v. Gibson, 29 Idaho 609, 160 P. 1112 (1916).

Vacation for Private Uses.

Under former similar section it was immaterial that vacation was made for purpose of devoting vacated street or alley to private uses. Canady v. Coeur d’Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911).

When Conveyance Unnecessary.

Where portion of street was vacated in recorded plat, city could not have conveyed fee therein to owner of abutting land not in plat. Mochel v. Cleveland, 51 Idaho 468, 5 P.2d 549 (1930). When Conveyance Unnecessary.

Where a street was vacated in interest of a company that owns all lands on both sides of street, a conveyance to it was unnecessary; vacated street reverted to abutting property owner. Canady v. Coeur d’Alene Lumber Co., 21 Idaho 77, 120 P. 830 (1911).

ALR.

Estoppel of municipality as to encroachments upon public streets. 44 A.L.R.3d 257.

Widening of city street as local improvement justifying special assessment of adjacent property. 46 A.L.R.3d 127.

Authority of zoning commission to impose, as condition of allowance of special zoning exception, permit, or variance, requirements as to highway and traffic changes. 49 A.L.R.3d 492.

Compiler’s Notes.

The bracketed comma near the end of the section was inserted by the compiler to correct the enacting legislation.

Decisions Under Prior Law

Assessments against municipal property.

Construction.

Validity and construction.

Assessments Against Municipal Property.

A city was without authority to levy special assessments against its own property for the cost of local improvements. Reynard v. City of Caldwell, 53 Idaho 62, 21 P.2d 527 (1933).

Construction.

Validity and Construction.

The terms “special assessments,” “special tax,” and “taxes” were used interchangeably. Hunt v. City of St. Maries, 44 Idaho 700, 260 P. 155 (1927). Validity and Construction.

Former similar section, where the necessity to repair the streets exists, violated no constitutional right of the owners of property assessed, as long as the benefits continued respectively to equal the individual assessments. Noble Estate v. City of Boise City, 19 F.2d 927 (D. Idaho 1927).

Liability for Injuries.

In an action by a motorist, who sustained personal injuries in an automobile accident at an intersection, to recover against the city on the theory that it was negligent in its construction and maintenance of a stop sign which was not seen by the motorist before the accident, summary judgment for the city was precluded by issues of fact as to whether the sign was obscured by foliage, whether the city had actual or constructive notice of obscured visibility of the sign, and whether the poorly constructed sign was the proximate cause of the accident. Smith v. Preston, 97 Idaho 295, 543 P.2d 848 (1975).

Regulation of Traffic.

Where a city ordinance, which made it a misdemeanor for a person to be intoxicated while in a private motor vehicle located in a public place, did not attempt to control traffic or to control roadways, the ordinance was not in conflict with this section which provides cities with authority to control traffic and roadways within their corporate limits. Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976).

Decisions Under Prior Law

Agent of state.

Barrier at end of street.

Barriers.

Bridges.

Construction.

Control.

Dead-end streets.

Ice and snow.

Liability for injuries.

Pipes of water company. Private driveways.

Proprietary functions.

Reasonable care.

Regulation of traffic.

Right to irrigation ditch.

Right to taxi stand.

Signs over sidewalks.

Validity of assessments.

Agent of State.

Municipality in exercising its power over its streets and alleys acted as agent of the state. Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475 (1956).

Barrier at End of Street.

Maintenance of a street with its terminus upon the bank of a river with a barrier erected thereat was not a nuisance for there was no defect which obstructed free passage or use of the street in the customary manner. Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960).

Barriers.

Former similar section imposed a duty upon a city to keep the streets within its limits in a reasonably safe condition for use by travelers in the usual modes, and, arising out of this duty and as a corollary thereof, the duty to erect and maintain barriers or warning devices where necessary to make the street reasonably safe for travelers using ordinary care and at such places as would be unsafe for usual and ordinary travel without such barriers or warning devices. Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960).

There was no duty resting upon a municipality to erect barriers sufficient to withstand the impact of an auto out of control or recklessly driven. Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960).

Bridges.

Bridge connecting two streets within corporate limits of a village, was under exclusive control of village and village, was bound to keep it in repair and safe for accommodation of traveling public, and was liable for any injury resulting to a traveler from its neglect of duty in that respect. Village of Sand Point v. Doyle, 11 Idaho 642, 83 P. 598 (1905).

Construction.

Board of county commissioners had not the control of the roads and bridges within corporate limits of a city or village, and they were not required, under law, to construct and maintain bridges exceeding sixty feet in length at expense of county over streams crossing highways within such corporate limits. City of Kellogg v. McRae, 26 Idaho 73, 141 P. 86 (1914).

County authorities could not be compelled by mandamus to construct or repair bridge in city but could do so. City of Kellogg v. McRae, 26 Idaho 73, 141 P. 86 (1914).

The legislature had by former similar section delegated to the civil municipalities of this state the authority, subject to constitutional limitations, to police the streets of the municipalities and to regulate traffic thereon. Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964).

Control.

Council or trustees had exclusive control of streets, including bridges, within corporate limits. City of Kellogg v. McRae, 26 Idaho 73, 141 P. 86 (1914).

Dead-End Streets.

It was not unlawful for the city to maintain a street with its terminus on the bank of a river; dead-end streets were not unlawful. Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960).

Ice and Snow.

Where ice and snow have not accumulated upon a sidewalk so as to create an obstruction, mere slipperiness and unevenness caused by tramping, thawing, and freezing, in case of an accident, would not render municipality liable. Wilson v. City of Idaho Falls, 17 Idaho 425, 105 P. 1057 (1909).

Liability for Injuries.

Municipalities had exclusive control over streets, etc., within their limits and were liable to a traveler on such streets who was injured by a negligent discharge by municipality of duties imposed by former similar section. Carson v. City of Genesee, 9 Idaho 244, 74 P. 862 (1903); Eaton v. City of Weiser, 12 Idaho 544, 86 P. 541 (1906).

Municipalities had complete and exclusive control of the streets and alleys, and where city permitted and participated in placing a tank, containing explosive gas, in an alley, and it was reasonably foreseeable that damage would result from the tank, the city was liable for damages sustained as a result of the injury to travelers on the streets as well as to property adjacent to the tank. Splinter v. City of Nampa, 70 Idaho 287, 215 P.2d 999 (1950).

Complaint for personal injuries arising out of dead-end street accident, which alleged that injuries were proximately caused by the failure of the councilmen to maintain warning signs, stated a cause of action against the councilmen. Lemmon v. Clayton, 128 F. Supp. 771 (D. Idaho 1955).

Mayor of a city of a second class was not individually liable for maintenance of street in a reasonably safe condition and could not be sued individually for damages for injuries sustained as the result of alleged failure of city to maintain warning sign of a dead-end street. Lemmon v. Clayton, 128 F. Supp. 771 (D. Idaho 1955).

Plaintiff who sustained personal injuries as the result of a dead-end street accident in a city was not barred from suing councilmen based on their alleged negligence to maintain warning signs merely because the plaintiff failed to file a claim against the city. Lemmon v. Clayton, 128 F. Supp. 771 (D. Idaho 1955).

Pipes of Water Company.

Pipes of water company lying beneath the surface did not constitute a nuisance and water company could either have removed them or not have removed them, and if the company elected to remove the pipes, it was entitled to a period of 90 days in which to remove the pipes. Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475 (1956).

Private Driveways.

Unincorporated village was not required to obtain consent of public utilities commission before requiring removal of pipes and apparatus of a private water company, though water company as a public utility was subject to regulation by the commission, since municipalities retain the right to control and maintain its streets and alleys. Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475 (1956). Private Driveways.

Under its exercise of the police power and authority over the streets and in furtherance of the public good, the common council, for sufficient reason, could eliminate curb cuts and driveways without incurring liability to the abutting owner for the resulting injury. Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964).

Proprietary Functions.

Granting of permits to place structures in, under, on, or about the streets and alleys was a proprietary and not governmental function. Splinter v. City of Nampa, 70 Idaho 287, 215 P.2d 999 (1950).

Municipalities, in the exercise of proprietary functions, were under the same obligations and liabilities as a private owner, and the latter was liable to those outside his premises though not presently or prospectively using the facilities. Splinter v. City of Nampa, 70 Idaho 287, 215 P.2d 999 (1950).

Reasonable Care.

Former similar section required only that a city exercise reasonable and ordinary care to keep its streets in a reasonably safe condition for ordinary travel. Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960).

Regulation of Traffic.

When a street was acquired, either by dedication or condemnation, and opened for traffic, the city had the power and authority to police the same and regulate the traffic thereon. Foster’s, Inc. v. Boise City, 63 Idaho 201, 118 P.2d 721 (1941).

City in the exercise of its police power over, and its control of, streets had the right to regulate the use thereof by all vehicles, commercial, and noncommercial, and this power included the right to designate and regulate the stands of taxicabs. Yellow Cab Taxi Serv. v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681 (1948).

The city had the supervision and control of the public highways and streets within its limits. Yellow Cab Taxi Serv. v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681 (1948).

Right to Irrigation Ditch.

In a suit by property owners for an injunction and damages for failure of city to deliver irrigation water to their properties pursuant to contract by means of a ditch running through townsite, the city could not contend on appeal that it was authorized to control alleys, streets, sewers, and drains to the exclusion of any permissive use, since the property owners did not allege any permissive use, but only asserted a right under contract to the transmission of irrigation waters through the townsite. Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 (1955).

Right to Taxi Stand.

Signs Over Sidewalks.

Taxicab service operator who alleged occupation of a taxicab stand for a 16-year period was not entitled to have his rights to the use of the street quieted in him and such right protected by injunction. Yellow Cab Taxi Serv. v. City of Twin Falls, 68 Idaho 145, 190 P.2d 681 (1948). Signs Over Sidewalks.

Municipality was liable in first instance for permitting private persons negligently to place signs over sidewalk or streets and persons who placed such obstructions over sidewalk were liable to city for whatever damages it had to pay for such unlawful acts. Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850 (1913).

Validity of Assessments.

Assessments made under authority granted in former section governing street improvements violated no constitutional rights of the owners of the property so assessed, as long as the benefits continue respectively to equal the individual assessments. Noble Estate v. City of Boise City, 19 F.2d 927 (D. Idaho 1927).

Cross References.

Disposition of funds derived from regulation of parking on city streets,§ 50-1015A.

Installation of Stop Sign.

Neither the Idaho statutes nor the Uniform Manual of Traffic Control Devices required a traffic engineering study by a city prior to installation of a stop sign. Lisher v. City of Potlatch, 101 Idaho 343, 612 P.2d 1190 (1980).

Regulation of Traffic.

Where a city ordinance, which made it a misdemeanor for a person to be intoxicated while in a private motor vehicle located in a public place, did not attempt to control traffic or to control roadways, the ordinance was not in conflict with this section which provides cities with authority to control traffic and roadways within their corporate limits. Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976).

City has authority to limit the traffic on a public road to bicycles and pedestrians. Christensen v. City of Pocatello, 142 Idaho 132, 124 P.3d 1008 (2005).

Decisions Under Prior Law

Irrigation ditch.

Liability for condition of streets.

Liability for permitting encroachments.

Obstruction in street.

Private driveways.

Regulation of filling stations. Structures overhanging street.

Irrigation Ditch.

In a suit by property owners for an injunction and damages for failure of city to deliver irrigation water to their properties pursuant to contract by means of a ditch running through townsite, the city could not contend on appeal that it was authorized to control alleys, streets, sewers, and drains to the exclusion of any permissive use, since the property owners did not allege any permissive use, but only asserted a right under contract to the transmission of irrigation waters through the townsite. Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 (1955).

Liability for Condition of Streets.

Cities and villages which were granted exclusive control over their streets, avenues, lanes, and alleys were liable in damages for negligent discharge of the duty of keeping such streets and alleys in a reasonably safe condition for use by travelers in the usual modes. Carson v. City of Genesee, 9 Idaho 244, 74 P. 862 (1903).

Liability for Permitting Encroachments.

The fact that city did not by ordinance regulate or prohibit encroachments did not relieve it from liability for negligently permitting such encroachments. Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850 (1913).

Obstruction in Street.

Holder of permit to install an obstruction in street acquired no property or contractual right by reason of such permit, and, whenever city authorities revoked such permit, holder had no alternative. Keyser v. City of Boise, 30 Idaho 440, 165 P. 1121 (1917).

Private Driveways.

The closure of designated curb cuts and reconstruction of the curb ordered by the common council of Boise City, on the ground that the curb cuts in question were not being used and were unnecessary, was sustained by the evidence and disclosed no unreasonable exercise of discretion on the part of the city. Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964).

Regulation of Filling Stations.

Municipal corporations may adopt ordinances regulating establishment of filling stations. Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353 (1930).

Structures Overhanging Street.

Municipality was liable for damages for injuries resulting from neglect of its duty to keep its streets in reasonably safe condition for travel. Rule extended not only to surface of street or sidewalk but also to structures over them. Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850 (1913).

Cross References.

Local improvement assessments,§ 50-1701 et seq.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Construction contracts.

Private driveways.

Construction Contracts.

Former similar section authorized a city to make contracts for the construction of sidewalks. Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034 (1912).

Private Driveways.

The closure of designated curb cuts and reconstruction of the curb ordered by the common council of Boise City, on the ground that the curb cuts in question were not being used and were unnecessary, was sustained by the evidence and disclosed no unreasonable exercise of discretion on the part of the city. Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964).

Compiler’s Notes.

The bracketed insertion at the end of the section was added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Filling stations.

Private driveways.

Filling Stations.

Municipal corporations could adopt ordinances regulating establishment of filling stations. Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353 (1930).

Private Driveways.

The closure of designated curb cuts and reconstruction of the curb ordered by the common council of Boise City, on the ground that the curb cuts in question were not being used and were unnecessary, was sustained by the evidence and disclosed no unreasonable exercise of discretion on the part of the city. Johnston v. Boise City, 87 Idaho 44, 390 P.2d 291 (1964).

ALR.

§ 50-318. Identification of streets and houses.

Cities may provide by ordinance for the naming of streets and avenues and the numbering of houses adjacent thereto.

History.

1967, ch. 429, § 54, p. 1249.

Cross References.

County dog license tax,§ 25-2801.

Cross References.

Cemetery maintenance districts,§ 27-101 et seq.

Compiler’s Notes.

Probate and justice courts, referred to in subsection E, no longer exist. Their functions have been assumed by the district and magistrate courts, pursuant to S.L. 1969, Chapter 100. See§ 1-103.

Decisions Under Prior Law

Establishment and maintenance.

Taxation.

Establishment and Maintenance.

A cemetery may be established and conducted for profit, and the establishment and maintenance thereof by the public has also been authorized by the legislature. Sunset Mem. Gardens, Inc. v. Idaho State Tax Comm’n, 80 Idaho 206, 327 P.2d 766 (1958).

Taxation.

None of the property of the corporation involved, neither the lots sold for burial purposes nor the unplatted acreage, was exempt from the tax levied and assessed since such corporation was not a public cemetery within the intent and meaning of former§ 63-105M (now§ 63-602F) so as to entitle it to be exempted from taxation. Sunset Mem. Gardens, Inc. v. Idaho State Tax Comm’n, 80 Idaho 206, 327 P.2d 766 (1958).

ALR.

§ 50-321. Aviation facilities — Acquisition, operation and maintenance.

Cities are hereby empowered: to acquire by purchase, gift, lease, sublease, or otherwise hold and take over such lands as the city council may deem necessary within or without the corporate limits whether within or without the county in which said city is located; do all things necessary in cooperation with the United States government in adapting any such lands so acquired to national defense purposes; and for the purpose of maintaining aviation facilities, to lease for aviation purposes, or any purposes connected therewith and incident thereto, all or any part of such land or lands, under such regulations and upon such terms and conditions as shall be established by the city council or otherwise established by law; to construct, operate and maintain, consistent with such regulations as may now exist or may hereafter be established by law, hangars, buildings and equipment necessary or convenient to the maintenance and operation of aviation facilities; to survey, plat, map, grade, ornament and otherwise improve such land, appurtenances, approaches, and avenues leading to or adjacent thereto; to provide for all costs and expenses incident or necessary to the exercise of the foregoing powers or the attainment of the foregoing objects out of the general fund of said city or in its discretion by special levy, in an amount not to exceed six hundredths percent (.06%) of the market value for assessment purposes in any one (1) year on all the taxable property within such city or by the issuance of bonds as provided by sections 50-1001 through 50-1042, Idaho Code.

History.

1967, ch. 429, § 40, p. 1249; am. 1995, ch. 82, § 24, p. 218.

Cross References.

Aeronautics and aeronautic facilities, municipalities to cooperate with transportation department in development,§ 21-104.

Aeronautics laws, duty to aid in enforcement of,§ 21-119.

Airports as part of national defense system, counties and municipalities may share in cost,§§ 21-403 to 21-406.

Airports, counties and municipalities authorized to cooperate,§ 21-401 et seq.

Airport Zoning Act,§ 21-501 et seq.

Airport zoning authorized,§ 21-106.

Aviation fields, airports, hangars and other air navigation facilities authority to acquire or construct, bond issues authorized,§ 21-401. Municipal airports,§ 21-105.

Regional airports,§ 21-801 et seq.

Tax levy authorized,§ 21-404.

In General.

Where repair and improvement of airport facility is essential for proper growth and development of area, funds expended for repair and improvement of airport facility are ordinary and necessary expenses within the proviso of Idaho Const., Art. VIII, § 3. City of Pocatello v. Peterson, 93 Idaho 774, 473 P.2d 644 (1970).

Firefighters.

The contract the city of Boise made with the Idaho national guard (IDANG) to provide air rescue fire fighting (ARFF) services at the Boise municipal airport did not violate the Idaho constitution or the Idaho civil service act; however, the firefighters were entitled to collectively bargain in anticipation of the city’s actions to replace union employees with IDANG firefighters to perform the work previously performed by union members, and by refusing to negotiate with the union, the city violated the collective bargaining act,§ 44-701 et seq. International Ass’n of Firefighters Local No. 672 v. Boise City, 136 Idaho 162, 30 P.3d 940 (2001).

Cross References.

Bond issues for water plants,§ 50-1020.

Franchise Authority.

It is undisputed that municipal corporations have the power to operate their own utility systems and provide water, power, light, gas and other utility services within the city limits, and the constitutional and statutory grant of franchise authority to the cities in this respect is not nullified or altered by§ 40-1406. Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

Increase of Rates.

In the absence of any statutory or constitutional provision expressly or implicitly requiring that a municipality act by ordinance in the establishment and amendment of rates charged for extending the city’s water system, it was proper for a city to adopt the rate increase by resolution. Snake River Homebuilders Ass’n v. City of Caldwell, 101 Idaho 47, 607 P.2d 1321 (1980).

Liability for Charges Incurred by Tenants.

Cited

A city did not have implied power to collect from a property owner for charges incurred by tenants for water, sewer and garbage services. City of Grangeville v. Haskin, 116 Idaho 535, 777 P.2d 1208 (1989). Cited Village of Peck v. Denison, 92 Idaho 747, 450 P.2d 310 (1969).

Ordinary and Necessary.

Under current law as expressed in Asson v. City of Burley , 105 Idaho 432, 670 P.2d 839 (1983), cert. denied, 469 U.S. 870 (1984), and City of Pocatello v. Peterson , 93 Idaho 774, 473 P.2d 644 (1970), proposed improvements to the Cascade water system would be ordinary and necessary expenses; therefore, art. 8, § 3, Idaho Const., would not require voter ratification of the debt.OAG 88-3.

Cross References.

Joint service functions,§§ 67-2326 — 67-2333.

Joint water, power, or sewerage services,§§ 50-1022 — 50-1025.

Decisions Under Prior Law

Proprietary Capacity.

A municipal corporation, in the ownership, maintenance and operation of a municipal water system supplying water to its inhabitants for pay, acted in a proprietary, not in a governmental, capacity. Gilbert v. Bancroft, 80 Idaho 186, 327 P.2d 378 (1958).

Cross References.

Bond issues for light and power plants,§ 50-1020.

Effective Dates.

Section 16 of S.L. 2001, ch. 29 declared an emergency. Approved February 28, 2001.

Franchise Authority.

It is undisputed that municipal corporations have the power to operate their own utility systems and provide water, power, light, gas and other utility services within the city limits, and the constitutional and statutory grant of franchise authority to the cities in this respect is not nullified or altered by§ 40-1406. Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

Liability for Charges Incurred by Tenants.

A city did not have implied power to collect from a property owner for charges incurred by tenants for water, sewer and garbage services. City of Grangeville v. Haskin, 116 Idaho 535, 777 P.2d 1208 (1989).

Purchase of Project Capability.

There is no statutory authorization for the purchase of “project capability” where such purchase comprehends the payment of long-term indebtedness for which no power may be supplied, and for which no ownership interest is acquired; the municipality is neither acquiring, owning, maintaining, or operating a plant, nor purchasing electrical power, but is underwriting another entity’s indebtedness in return for merely the possibility of electricity. Asson v. City of Burley, 105 Idaho 432, 670 P.2d 839 (1983), cert. denied, 469 U.S. 870, 105 S. Ct. 219, 83 L. Ed. 2d 149 (1984).

Agreement between cities and power company by which company agreed to try to arrange financing, obtain permits and issue bonds for nuclear power plants while city agreed to pay costs, including debt service on bonds, regardless of whether company failed to secure financing or complete the projects, did not come within ordinary and necessary proviso of Const., Art. VIII, § 3 and consequently was void as to cities who acted ultra vires by obligating their residents without an election and without compliance with the Constitution. Asson v. City of Burley, 105 Idaho 432, 670 P.2d 839 (1983), cert. denied, 469 U.S. 870, 105 S. Ct. 219, 83 L. Ed. 2d 149 (1984).

Limitation.

The legislature has not given Idaho counties authority to produce and sell electric power. Therefore, Idaho counties lack authority to enter into an agreement with counties of other states to develop a joint water project for the production and sale of hydroelectric power.OAG 89-1.

Authority over All Lands.

This section, which expressly addresses the regulation of utility transmission systems, gives a city the authority over all lands, not solely the public streets, which are owned or under control of such city. Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

Regulation of Cable TV.

Cities in Idaho almost certainly have authority under current state law to franchise cable television companies. With general franchising authority under state law, federal law allows cities to regulate the basic cable television service rate and charge a franchise fee, both subject to the conditions of federal law.OAG 94-5.

Objection to Franchise, Estoppel.

Presumptions.

Where plaintiffs participated in the bidding and award of cable television franchise process by city and no protest was made by the plaintiffs when the several city governments banded together to form the committee to investigate the award and recommend the franchise, nor any objection was lodged against the prospect of the various cities granting franchises, the trial court did not err in holding that the plaintiffs were estopped from pursuing collateral attacks upon grant of franchise to others or upon ordinance or upon any other known defect. KTVB, Inc. v. Boise City, 94 Idaho 279, 486 P.2d 992 (1971). Presumptions.

Franchise ordinances are presumed valid with the burden on those challenging the ordinance to prove their invalidity. Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

Relation to Highway District Legislation.

The highway district legislation contained in title 40, chapters 13 and 14, does not supersede the well-established law vesting power to grant franchises to utilities in the cities. Alpert v. Boise Water Corp., 118 Idaho 136, 795 P.2d 298 (1990).

Regulation of Cable TV.

Cities in Idaho almost certainly have authority under current state law to franchise cable television companies. With general franchising authority under state law, federal law allows cities to regulate the basic cable television service rate and charge a franchise fee, both subject to the conditions of federal law.OAG 94-5.

Compiler’s Notes.

The phrase “the effective date of this act” in paragraph (1)(c) refers to the effective date of S.L. 1996, Chapter 246, which was effective January 1, 1996.

The phrase “the effective date of this act” in subsection (2) refers to the effective date of S.L. 1995, Chapter 226, which was effective March 20, 1995.

Effective Dates.

Section 3 of S.L. 1995, ch. 226 declared an emergency. Approved March 20, 1995.

Section 2 of S.L. 1996, ch. 246 declared an emergency and provided that the act shall be in full force and effect on and after its passage and approval and retroactive to January 1, 1996. Approved March 14, 1996.

Cross References.

Public utilities commission,§ 61-201 et seq.

Regulation of Cable TV.

Cities in Idaho almost certainly have authority under current state law to franchise cable television companies. With general franchising authority under state law, federal law allows cities to regulate the basic cable television service rate and charge a franchise fee, both subject to the conditions of federal law.OAG 94-5.

Cross References.

Eminent domain, drainage of cities and villages,§ 7-701.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Changing ditch channels.

Extension of street across lawful ditch.

Irrigation ditch.

Changing Ditch Channels.

A city was entitled to alter or change the channel of a ditch carrying irrigation waters through the townsite at its own expense and sole discretion. Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 (1955).

Extension of Street Across Lawful Ditch.

It was duty of city to cover ditch running alongside street if it was considered dangerous, or otherwise to protect people from such danger. City of Twin Falls v. Harlan, 27 Idaho 769, 151 P. 1191 (1915).

Where ditch had been constructed and operated in accordance with law, it was not nuisance, and could become one only by reason of manner in which it had been maintained and operated. Fact that municipality subsequently extended street along and included in it right of way for such ditch did not convert such ditch into a nuisance. City of Twin Falls v. Harlan, 27 Idaho 769, 151 P. 1191 (1915).

Irrigation Ditch.

In a suit by property owners for an injunction and damages for failure of city to deliver irrigation water to their properties pursuant to contract by means of a ditch running through townsite, the city could not contend on appeal that it was authorized to control alleys, streets, sewers and drains to the exclusion of any permissive use, since the property owners did not allege any permissive use, but only asserted a right under contract to the transmission of irrigation waters through the townsite. Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282 (1955).

ALR.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 A.L.R.3d 488.

Validity and construction of regulation by municipal corporation fixing sewer-use rates. 61 A.L.R.3d 1236.

Compiler’s Notes.

The bracketed insertion at the end of the section was added by the compiler to conform to the statutory citation style.

Cross References.

Abatement of moral nuisances,§ 52-401 et seq.

Nuisances generally, title 52, Idaho Code.

Repression of prostitution under health laws,§ 39-603.

Amendments.

The 2010 amendment, by ch. 79, updated the section reference.

Decisions Under Prior Law

Abatement of nuisances.

Declaring a nuisance.

Abatement of Nuisances.

While village might have abated nuisance within its limits, if it wished to abate nuisance outside its boundaries, it was proper and probably necessary for it to apply to a court of equity. Village of Am. Falls v. West, 26 Idaho 301, 142 P. 42 (1914).

Declaring a Nuisance.

City may have declared anything a nuisance which was such in fact or per accidens , as well as that which was a nuisance per se. Rowe v. City of Pocatello, 70 Idaho 343, 218 P.2d 695 (1950).

Compiler’s Notes.

The bracketed insertion near the end of the section was inserted by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Instruction.

Liability for improper destruction.

Nature of hazard.

Instruction.

The instruction given by the trial court to the effect that, if the building was in fact a nuisance, the city had the burden of showing it gave the property owner reasonable notice and opportunity to repair and remove the structure and if the city failed to give such notice and provide such opportunity before destroying the building, it was liable for damages, was a correct statement of the law. Albert v. City of Mt. Home, 81 Idaho 74, 337 P.2d 377 (1959).

Liability for Improper Destruction.

Nature of Hazard.

Where the city ordered a building summarily destroyed which was not a nuisance per se, it did so at its peril, and, if it was found the structure was not in fact a nuisance, the owner might recover damages. Albert v. City of Mt. Home, 81 Idaho 74, 337 P.2d 377 (1959). Nature of Hazard.

Even though the building was littered with debris, and transients were living there and using candles and cigarettes creating a fire hazard, these conditions being caused by the use to which the house was put were not hazards inherent in the building itself; therefore, the building could not be destroyed as a nuisance by the city, it being apparent such hazardous condition could be remedied by cleaning and repairs without major reconstruction. Albert v. City of Mt. Home, 81 Idaho 74, 337 P.2d 377 (1959).

To be lawfully destroyed as a nuisance, a building must be a nuisance per se or in fact. If it is neither, it cannot be made a nuisance by declaration of the city council. Albert v. City of Mt. Home, 81 Idaho 74, 337 P.2d 377 (1959).

ALR.

§ 50-336. Traffic safety education program — Fees.

1. Cities may by ordinance elect to offer a traffic safety education program to all drivers issued an infraction citation by a city law enforcement officer for a moving violation not involving a collision. Citations allowing the traffic safety education program alternative shall only be issued pursuant to section 49-1501, Idaho Code, and as permitted by this section. Such traffic safety education program shall be for the purpose of educating drivers in traffic safety concepts. Drivers qualified under this section who desire to pay the fixed penalty and court costs in lieu of appearing in court on the citation may also elect to attend a traffic safety education program offered by a city under this section as an alternative to receiving violation points and insurance rating charges as provided in subsection (6) of this section. At the time of issuance of the citation, drivers shall elect whether they wish to attend the program and, if so, the citing officer shall record the election in the uniform citation. The citing officer shall provide to the driver a written notice of the available times, locations and the cost of the program or a written notice identifying a telephone number or internet website address where such information can be obtained. The driver shall have forty-five (45) days from the date of issuance of the citation to complete the traffic safety education program. A driver electing to attend the program shall pay the fixed penalty and court costs for the citation to the clerk of the court as provided in the citation and pay the program fee, if any, separately to the city at or before the time of attendance at the program. Any person who fails to complete the offered traffic safety education program within the forty-five (45) days after voluntarily electing to attend will not receive the relief provided in subsection (6) of this section. Before issuing a citation allowing the traffic safety education program alternative, the citing officer shall ensure that the driver is not disqualified under subsection (2) of this section.
2. The traffic safety education program option allowed under subsection (1) of this section is not available to:
   1. Any driver holding a commercial driver’s license or any person driving a commercial motor vehicle; or
   2. Any driver having received within the last three (3) years relief from violation points under subsection (6) of this section or having received a point reduction as provided in rules of the Idaho department of transportation for completing any defensive driving or driver safety course.
3. If the city imposes a traffic safety education program fee, such fee shall not exceed twenty-five dollars ($25.00).
4. If the city collects a program fee from a driver disqualified from the traffic safety education program alternative, the city shall refund the program fee to the driver no later than ten (10) days following the discovery of the error. If the driver has already completed the program, the city shall, no later than ten (10) days following the discovery of the error, so notify the clerk of the court and the driver and shall advise the driver that the relief provided in subsection (6) of this section is not available and shall pay to the driver twenty-five dollars ($25.00) as liquidated damages for the error, in addition to refunding the program fee. (5) The city clerk or other authorized city official for the city in which the citation was issued shall within fifteen (15) days of the completion of the traffic safety education program by the cited driver transmit verification of the completion to the clerk of the county in which the citation was issued.

(6) When a person has successfully completed a traffic safety education program for an infraction citation, the infraction shall not result in violation point counts as prescribed in section 49-326, Idaho Code, nor shall the infraction be deemed to be a moving violation for the purpose of establishing rates of motor vehicle insurance charged by a casualty insurer.

(7) The Idaho supreme court shall establish such rules as deemed necessary to implement the provisions of this section.

History.

I.C.,§ 50-336, as added by 2013, ch. 292, § 1, p. 769.

Prior Laws.

Former§ 50-336, defining “service function,” which comprised S.L. 1967, ch. 429, § 62, was repealed by S.L. 1970, ch. 38, § 9. For present comparable law, see§§ 67-2326 to 67-2333.

Effective Dates.

Section 2 of S.L. 2013, ch. 292 provided: “This act shall be in full force and effect on and after January 1, 2014.”

Compiler’s Notes.

These sections, which comprised S.L. 1967, ch. 429, §§ 63 to 66, were repealed by S.L. 1970, ch. 38, § 9. For present comparable law, see§§ 67-2326 — 67-2333.

Compiler’s Notes.

This section, which comprised 1967, ch. 429, § 67, p. 1249; am. 1975, ch. 34, § 1, p. 60; am. 1979, ch. 62, § 1, p. 165; am. 1981, ch. 289, § 2, p. 595; am. 1983, ch. 89, § 3, p. 185; am. 1984, ch. 136, § 1, p. 321; am. 1987, ch. 161, § 1, p. 316; am. 1995, ch. 164, § 1, p. 644; am. 1998, ch. 397, § 2, p. 1241, was repealed by S.L. 2005, ch. 213, § 17.

Effective Dates.

Section 2 of S.L. 1981, ch. 30 declared an emergency. Approved March 17, 1981.

Purchase of Project Capability.

There is no statutory authorization for the purchase of “project capability” where such purchase comprehends the payment of long-term indebtedness for which no power may be supplied, and for which no ownership interest is acquired; the municipality is neither acquiring, owning, maintaining, or operating a plant, nor purchasing electrical power but is underwriting another entity’s indebtedness in return for merely the possibility of electricity. Asson v. City of Burley, 105 Idaho 432, 670 P.2d 839 (1983), cert. denied, 469 U.S. 870, 105 S. Ct. 219, 83 L. Ed. 2d 149 (1984).

Agreement between cities and power company by which company agreed to try to arrange financing, obtain permits and issue bonds for nuclear power plants while city agreed to pay costs, including debt service on bonds, regardless of whether company failed to secure financing or complete the projects, did not come within ordinary and necessary proviso of Idaho Const., Art. VIII, § 3 and consequently, was void as to cities who acted ultra vires by obligating their residents without an election and without compliance with the constitution. Asson v. City of Burley, 105 Idaho 432, 670 P.2d 839 (1983), cert. denied, 469 U.S. 870, 105 S. Ct. 219, 83 L. Ed. 2d 149 (1984).

Cross References.

Idaho public records act,§ 74-101 et seq.

Compiler’s Notes.

Section 2 of S.L. 2007, ch. 28 provided “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act”.

Effective Dates.

Section 3 of S.L. 2007, ch. 28 declared an emergency. Approved February 23, 2007.

Compiler’s Notes.

This section, which comprised I.C.,§ 50-343, as added by S.L. 1984, ch. 243, § 2, p. 590, was repealed by S.L. 2008, ch. 304, § 1, effective March 28, 2008. For present comparable provisions, see§ 18-3302J.

Compiler’s Notes.

The bracketed insertion in paragraph (1)(e) was added by the compiler to clarify the statutory reference.

Exclusive Franchise.

In regulating the collection of solid waste within its city limits, a municipality is exercising its police power function under Const. Art. XII, § 2 and, under§ 48-107(c), it is afforded a statutory exemption from the Idaho Competition Act. Since this section does not conflict with granting exclusive solid waste collection franchises, this exercise is valid. Plummer v. City of Fruitland, 139 Idaho 810, 87 P.3d 297 (2004).

Prior Laws.

Former§§ 50-401 — 50-413, 50-415, which comprised S.L. 1967, ch. 429,§§ 75-84, 86, 87, 89, 96, p. 1249; I.C.,§ 50-411, as added by 1973, ch. 303, § 2, p. 645; am. 1975, ch. 94, § 1, p. 191, were repealed by S.L. 1978, ch. 329, § 1.

Prior Laws.

Former§ 50-402 was repealed. See Prior Laws,§ 50-401.

Amendments.

The 2009 amendment, by ch. 341, in subsection (c), twice inserted “at least” preceding “eighteen (18) years of age”; in subsection (e), substituted “county clerk” for “constable,” and deleted “as required by this act” from the end; deleted subsections (f) through (h), which were the definitions for “election register,” “combination election record and poll book,” and “tally book,” and made related redesignations; and, in present subsection (g), substituted “provisions of this chapter” for “provision of this act.”

Effective Dates.

Section 2 of S.L. 1994, ch. 66 declared an emergency. Approved March 7, 1994.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§ 50-403 was repealed. See Prior Laws,§ 50-401.

Amendments.

The 2007 amendment, by ch. 202, added the last paragraph.

The 2009 amendment, by ch. 341, in the section catchline and in the last sentence, substituted “county clerk” for “city clerk”; in the first sentence, substituted “For each city, the county clerk of the county is the chief elections officer” for “Each city clerk is the chief elections officer”; and deleted the last paragraph, which dealt with emergency procedures handled by the city clerk.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§ 50-404, which comprised S.L. 1978, ch. 329, § 2, p. 825, was repealed by S.L. 2009, ch. 341, § 104, effective January 1, 2011.

Another former§ 50-404 was repealed. See Prior Laws,§ 50-401.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-414; substituted “chapter 4, title 34, Idaho Code” for “section 34-1402, Idaho Code” at the end of the second sentence; and added the last sentence.

Effective Dates.

Section 6 of S.L. 1993, ch. 379, § 6 provided that the act should be in full force and effect on and after January 1, 1994.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Cross References.

Secretary of state,§ 67-901 et seq.

Prior Laws.

Former§ 50-405, which comprised S.L. 1978, ch. 329, § 2, p. 825, was repealed by S.L. 2009, ch. 341, § 104, effective January 1, 2011.

Another former§ 50-405 was repealed. See Prior Laws,§ 50-401.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-429; substituted “2011” for “1994” and “two (2) elections” for “four (4) elections” in subsection (2); in subsection (3), deleted former paragraphs (a) and (c) which read “The first Tuesday in February of each year; and” and “The first Tuesday in August of each year; and”, redesignated former paragraphs (b), (d), and (e) as present paragraphs (a), (b), and (c), substituted “third Monday” for “fourth Monday” in present paragraph (a) and deleted the last sentence in paragraph (c), which read “Such a special election, if conducted by the city clerk, shall be conducted at the expense of the political subdivision submitting the question”; added present subsection (4); and redesignated former subsection (4) as subsection (5).

The 2020 amendment, by ch. 76, added present subsection (2); redesignated former subsections (2) to (5) as subsections (3) to (6); and, in subsection (5), substituted “city” for “municipal” near the beginning of the first and second sentences.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§ 50-406, which comprised S.L. 1978, ch. 329, § 2, p. 825, was repealed by S.L. 2009, ch. 341, § 104, effective January 1, 2011.

Another former§ 50-406 was repealed. See Prior Laws,§ 50-401.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-430.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Authority of Clerk.

City clerk’s authority to review proposed city initiatives was limited to form only, clerk exceeded that authority by rejecting voters’ initiative petition proposing the legalization of marijuana on the basis that it violated state law. Davidson v. Wright, 143 Idaho 616, 151 P.3d 812 (2006).

History.

I.C.,§ 50-431, as added by 1978, ch. 329, § 2, p. 825; am. 2002, ch. 32, § 22, p. 46; am. 2002, ch. 75, § 9, p. 164; am. 2006, ch. 105, § 3, p. 288; am. and redesig. 2009, ch. 341, § 109, p. 993.

Prior Laws.

Former§ 50-407, which comprised S.L. 1978, ch. 329, § 2, p. 825; am. 2002, ch. 75, § 3, p. 164, was repealed by S.L. 2009, ch. 341, § 104, effective January 1, 2011.

Another former§ 50-407 was repealed. See Prior Laws,§ 50-401.

Amendments.

This section was amended by two 2002 acts — ch. 32, § 22 and ch. 75, § 9, both effective July 1, 2002, which appear to be compatible and have been compiled together.

The 2002 amendment, by ch. 32, made stylistic changes.

The 2002 amendment, by ch. 75, rewrote the section.

The 2006 amendment, by ch. 105, in the Petition of Candidacy form, substituted “eleventh Monday” for “eighth Friday” and “ninth Friday” for “sixth Friday” in the first paragraph.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-431.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§ 50-408 was repealed. See Prior Laws,§ 50-401.

Prior Laws.

Former§ 50-409 was repealed. See Prior Laws,§ 50-401.

Prior Laws.

Former§ 50-410, which comprised S.L. 1978, ch. 329, § 2, p. 825; am. 2007, ch. 202, § 12, p. 620, was repealed by S.L. 2009, ch. 341, § 104, effective January 1, 2011.

Another former§ 50-410 was repealed. See Prior Laws,§ 50-401.

Amendments.

The 2006 amendment, by ch. 105, in the first sentence, substituted “eleventh Monday” for “eighth Friday” and “ninth Friday” for “sixth Friday”; substituted “Before a candidate files a petition of candidacy with the city clerk, the petition signatures” for “Signatures on petitions of candidacy” at the beginning of the second sentence; and substituted “ninth Friday” for “sixth Friday” in the next-to-last sentence.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-432 and substituted “section 50-407” for “section 50-431” in the third sentence.

Effective Dates.

The 2014 amendment, by ch. 162, added the subsection (1) designation and added subsection (2). Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§ 50-411, which comprised S.L. 1978, ch. 329, § 2, p. 825, was repealed by S.L. 2009, ch. 341, § 104, effective January 1, 2011.

Another former§ 50-411 was repealed. See Prior Laws,§ 50-401.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-435.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§ 50-412, which comprised S.L. 1978, ch. 329, § 2, p. 825, was repealed by S.L. 2009, ch. 341, § 104, effective January 1, 2011.

Another former§ 50-412 was repealed. See Prior Laws,§ 50-401.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-467, substituted “The county commissioners, within ten (10) days” for “The mayor and the council, within six (6) days” in the first sentence, and inserted “city council” near the end of the second sentence.

The 2014 amendment, by ch. 162, in the second sentence, substituted “receipt” for “acceptance” and deleted “and proclaimed as final” from the end.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§ 50-413, which comprised I.C.,§ 50-413, as added by 1978, ch. 329, § 2, p. 825; am. 1982, ch. 81, § 2, p. 148, was repealed by S.L. 2006, ch. 105, § 2.

Another former§ 50-413 was repealed in 1978. See Prior Laws,§ 50-401.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-468.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§ 50-414, which comprised I.C.,§ 50-414, as added by 1978, ch. 329, § 2, p. 825; am. 1982, ch. 61, § 1, p. 121, was repealed by S.L. 1993, ch. 379, § 3, p. 1392, effective January 1, 1994.

Another former§ 50-414, which comprised S.L. 1967, ch. 429, § 88, p. 1249, was repealed by S.L. 1978, ch. 329, § 1, p. 825.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-469.

Compiler’s Notes.

Pursuant to S.L. 2009, ch 341, § 105, former§ 50-414 was amended and redesignated as section 50-404, effective January 1, 2011.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Vacancies.

Under this section, the positions of mayor and city councilman did not become vacant when the voter registrations of the candidates were cancelled, after they had been sworn into office; failure to remain eligible for the office does not automatically create a vacancy. City of Huetter v. Keene, 150 Idaho 13, 244 P.3d 157 (2010).

Prior Laws.

Former§ 50-415, which comprised S.L. 1978, ch. 329, § 2, p. 825, was repealed by S.L. 2009, ch. 341, § 104, effective January 1, 2011.

Another former§ 50-415 was repealed. See Prior Laws,§ 50-401.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-470.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Cross References.

Attorney general,§ 67-1401 et seq.

Prior Laws.

Former§§ 50-416 — 50-421, which comprised I.C.,§§ 50-416 — 50-421, as added by 1978, ch. 329, § 2, p. 825; am. 1982, ch. 80, § 1, p. 147; am. 1982, ch. 81, § 3, p. 148; am. 1989, ch. 64, §§ 2, 3, p. 101, were repealed by S.L. 1993, ch. 379, § 3, effective January 1, 1994.

Another former§§ 50-416 — 50-421, which comprised S.L. 1967, ch. 429,§§ 90-95; 1975, ch. 94, § 1, p. 191, were repealed by S.L. 1978, ch. 329, § 3.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-471 and substituted “county board of canvassers” for “city council” at the end of the first sentence.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§§ 50-416 — 50-421, which comprised I.C.,§§ 50-416 — 50-421, as added by 1978, ch. 329, § 2, p. 825; am. 1982, ch. 80, § 1, p. 147; am. 1982, ch. 81, § 3, p. 148; am. 1989, ch. 64, §§ 2, 3, p. 101, were repealed by S.L. 1993, ch. 379, § 3, effective January 1, 1994.

Another former§§ 50-416 — 50-421, which comprised S.L. 1967, ch. 429,§§ 90-95; 1975, ch. 94, § 1, p. 191, were repealed by S.L. 1978, ch. 329, § 3.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-472.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§§ 50-416 — 50-421, which comprised I.C.,§§ 50-416 — 50-421, as added by 1978, ch. 329, § 2, p. 825; am. 1982, ch. 80, § 1, p. 147; am. 1982, ch. 81, § 3, p. 148; am. 1989, ch. 64, §§ 2, 3, p. 101, were repealed by S.L. 1993, ch. 379, § 3, effective January 1, 1994.

Another former§§ 50-416 — 50-421, which comprised S.L. 1967, ch. 429,§§ 90-95; 1975, ch. 94, § 1, p. 191, were repealed by S.L. 1978, ch. 329, § 3.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-473.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§§ 50-416 — 50-421, which comprised I.C.,§§ 50-416 — 50-421, as added by 1978, ch. 329, § 2, p. 825; am. 1982, ch. 80, § 1, p. 147; am. 1982, ch. 81, § 3, p. 148; am. 1989, ch. 64, §§ 2, 3, p. 101, were repealed by S.L. 1993, ch. 379, § 3, effective January 1, 1994.

Another former§§ 50-416 — 50-421, which comprised S.L. 1967, ch. 429,§§ 90-95; 1975, ch. 94, § 1, p. 191, were repealed by S.L. 1978, ch. 329, § 3.

Amendments.

The 2009 amendment, by ch. 341, redesignated this section from§ 50-475 and substituted “applicable to all municipal elections” for “hereby incorporated in this chapter” at the end of the section.

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Prior Laws.

Former§§ 50-416 to 50-421, which comprised I.C.,§§ 50-416 to 50-421, as added by 1978, ch. 329, § 2, p. 825; am. 1982, ch. 80, § 1, p. 147; am. 1982, ch. 81, § 3, p. 148; am. 1989, ch. 64, §§ 2, 3, p. 101, were repealed by S.L. 1993, ch. 379, § 3, effective January 1, 1994.

Another former§§ 50-416 to 50-421, which comprised S.L. 1967, ch. 429,§§ 90-95; 1975, ch. 94, § 1, p. 191, were repealed by S.L. 1978, ch. 329, § 3.

Prior Laws.

Former§§ 50-416 — 50-421, which comprised I.C.,§§ 50-416 — 50-421, as added by 1978, ch. 329, § 2, p. 825; am. 1982, ch. 80, § 1, p. 147; am. 1982, ch. 81, § 3, p. 148; am. 1989, ch. 64, §§ 2, 3, p. 101, were repealed by S.L. 1993, ch. 379, § 3, effective January 1, 1994.

Another former§§ 50-416 — 50-421, which comprised S.L. 1967, ch. 429,§§ 90-95; 1975, ch. 94, § 1, p. 191, were repealed by S.L. 1978, ch. 329, § 3.

Compiler’s Notes.

This section, which comprised I.C.,§ 50-422, as added by 1978, ch. 329, § 2, p. 825, was repealed by S.L. 1981, ch. 255, § 4.

Prior Laws.

Another former§ 50-423, which comprised S.L. 1970, ch. 232, § 1, p. 649, was repealed by S.L. 1978, ch. 329, § 1.

Compiler’s Notes.

These sections, which comprised I.C.,§§ 50-423, 50-424 as added by 1978, ch. 329, § 2, p. 825; am. 1981, ch. 255, § 5, p. 545; am. 1985, ch. 83, §§ 1, 2, p. 157; am. 1989, ch. 64, § 4, p. 101, were repealed by S.L. 1993, ch. 379, § 3, effective January 1, 1994.

Prior Laws.

Another former§ 50-425, which comprised I.C.,§ 50-425, as added by 1978, ch. 329, § 2, p. 825, was repealed by S.L. 1981, ch. 255, § 6.

Compiler’s Notes.

This section, which comprised I.C.,§ 50-425, as added by 1989, ch. 64, § 5, p. 101, was repealed by S.L. 1998, ch. 240, § 2, effective July 1, 1998.

Compiler’s Notes.

This section, which comprised I. C.,§ 50-426, as added by 1978, ch. 329, § 2, p. 825, was repealed by S.L. 2002, ch. 75, § 1.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 107,§ 50-429 was amended and redesignated as§ 50-405, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 108,§ 50-430 was amended and redesignated as§ 50-406, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 109,§ 50-431 was amended and redesignated as§ 50-407, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 110,§ 50-432 was amended and redesignated as§ 50-410, effective January 1, 2011.

Compiler’s Notes.

These sections, which comprised I.C.,§ 50-433 and 50-434 as added by 1978, ch. 329, § 2, p. 825, were repealed by S.L. 2002, ch. 75, § 1.

Prior Laws.

Former§ 50-435, as added by 1978, ch. 329, § 2, p. 825, was repealed by S.L. 2002, ch. 75, § 1.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 111, another§ 50-435 was amended and redesignated as§ 50-411, effective January 1, 2011.

Compiler’s Notes.

This section, which comprised I.C.,§ 50-444, as added by 1978, ch. 329, § 2, p. 825; am. 1985, ch. 83, § 5, p. 157, was repealed by S.L. 1998, ch. 240, § 4, effective July 1, 1998.

Prior Laws.

A former§ 50-459, which comprised I.C.,§ 50-459, as added by 1978, ch. 329, § 2, p. 825, was repealed by S.L. 2006, ch. 105, § 10.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 113,§ 50-467 was amended and redesignated as§ 50-412, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 114,§ 50-468 was amended and redesignated as§ 50-413, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 115,§ 50-469 was amended and redesignated as§ 50-414, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 116,§ 50-470 was amended and redesignated as§ 50-415, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 117,§ 50-471 was amended and redesignated as§ 50-416, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 118,§ 50-472 was amended and redesignated as§ 50-417, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 119,§ 50-473 was amended and redesignated as§ 50-418, effective January 1, 2011.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 121,§ 50-475 was amended and redesignated as§ 50-419, effective January 1, 2011.

Compiler’s Notes.

This section, which comprised I.C.,§ 50-476 as added by 1978, ch. 329, § 2, p. 825, was repealed by S.L. 1993, ch. 379, § 3, effective January 1, 1994.

Compiler’s Notes.

Pursuant to S.L. 2009, ch. 341, § 122,§ 50-477 was amended and redesignated as§ 50-420, effective January 1, 2011. Section 50-420 is repealed by S.L. 2019, ch. 288, § 23, effective January 1, 2020.

Compiler’s Notes.

This section, which comprised Init. Measure 1994, No. 2, § 3, p. 1371, was repealed by S.L. 2002, ch. 1, § 1.

Compiler’s Notes.

This section, which comprised I.C.,§ 50-479, as added by 2002, ch. 142, § 1, p. 393, was repealed by S.L. 2006, ch. 105, § 11.

Prior Laws.

Former§ 50-501, which comprised 1967, ch. 429, § 27A, p. 1249; am. 1973, ch. 80, § 1, p. 129, was repealed by S.L. 1977, ch. 144, § 1.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49 of tit. 50.

Compiler’s Notes.

These sections which comprised S.L. 1967, ch. 429,§§ 105-117, were repealed by S.L. 1972, ch. 283, § 2, p. 703. For law relating to recall of officers see§ 34-1701 et seq.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49, of tit. 50.

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Cross References.

Mayor may solemnize marriages,§ 32-303.

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to conform to the statutory citation style.

The term “this act” near the end of the section refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code.

Decisions Under Prior Law

Appointment of Special Police.

Former similar section authorized the mayor to recommend the appointment of special police, but he had no authority himself to appoint them. Moore v. Hupp, 17 Idaho 232, 105 P. 209 (1909).

Mandamus.

Mandamus will lie if the officer against whom the writ is brought has a clear legal duty to perform the desired act, and if the act sought to be compelled is ministerial or executive in nature; thus, mandamus was a proper remedy to compel the mayor of a city to execute a public contract, since the signing of public contracts is authorized by this section. Utah Power & Light Co. v. Campbell, 108 Idaho 950, 703 P.2d 714 (1985).

Decisions Under Prior Law

Appointment of Policemen.

Under former similar section, mayor had no authority to appoint policemen upon his own motion or in a manner other than that provided in former section governing appointment of officers. Moore v. Hupp, 17 Idaho 232, 105 P. 209 (1909).

Amendments.

The 2006 amendment, by ch. 53, substituted “resident” for “male inhabitant.”

Compiler’s Notes.

This section, which comprised S.L. 1967, ch. 429, § 130, p. 1249, was repealed by S.L. 1970, ch. 63, § 1, p. 152, effective at 12:01 a.m. on January 11, 1971.

Decisions Under Prior Law

Right to Legislate.

Former similar section expressly conferred upon city council right to legislate on behalf of city. Such power was nowhere vested in mayor except by virtue of his veto power. Moore v. Hupp, 17 Idaho 232, 105 P. 209 (1909).

Amendments.

The 2006 amendment, by ch. 105, substituted the present last two sentences for the former last sentence which read: “The first notice of election shall be made by the city clerk not less than twenty (20) days next preceding any runoff election, and the designation of polling places shall be made by the city clerk not less than twenty (20) days next preceding any runoff election”.

The 2009 amendment, by ch. 341, in the third sentence, inserted “by the county clerk” and “consistent with chapter 14, title 34, Idaho Code,” and updated the last section reference; in the fourth sentence, substituted “county clerk” for “city clerk”; and, in the last sentence, substituted “county commissioners” for “city clerk.”

Effective Dates.

Section 2 of S.L. 1985, ch. 209 declared an emergency. Approved March 21, 1985.

Section 7 of S.L. 1992, ch. 176 read: “This act shall be in full force and effect on and after January 1, 1994, except that the provisions of Section 6 [appropriation] of this act shall be in full force and effect on and after July 1, 1992.”

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Cross References.

Annual appropriations,§ 50-1003.

Annual audit of city finances,§ 50-1010.

Annual budget,§ 50-1002.

Certification of taxes to be collected by tax collector,§ 50-1007.

No power to draw on funds without appropriation,§ 50-1006.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1-46, inclusive, and chs. 48, 49, of tit. 50.

Compiler’s Notes.

The first bracketed insertion in the section was added by the compiler to correct the enacting legislation.

The second bracketed insertion was added by the compiler to conform to the statutory citation style.

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Cross References.

Amendments.

The 2018 amendment, by ch. 169, redesignated former subsections A. and B. as subsections (1) and (2), and in subsection (2), redesignated former paragraphs (a)1. and (a)2. as paragraphs (a)(i) and (a)(ii) and paragraphs (b)1. and (b)2. as paragraphs (b)(i) and (b)(ii); and substituted “chapter 18, title 34, Idaho Code” for “sections 50-502 through 50-517, Idaho Code, such election to be held not less than sixty (60) days before any general city election” in the introductory paragraph of subsection (1).

Disclosure of Names and Resumes of Applicants.

Because a member of a city council is a local governmental official, not an employee, the name and resume of an applicant to be appointed to a city council are not exempt from disclosure; city was required to disclose names and resumes of applicants for city council to publisher requesting records. Federated Publications, Inc. v. Boise City, 128 Idaho 459, 915 P.2d 21 (1996).

Cross References.

Open public meetings,§ 74-201 et seq.

Compelling attendance of witnesses before council,§ 50-216.

ALR.

§ 50-706. Special meetings of council.

One half (1/2) plus one (1) of the members of the full council shall have the power to call special meetings of the city council, the object of which shall be submitted to the council in writing; the call and object, as well as the disposition thereof, shall be entered upon the journal of the clerk.

History.

1967, ch. 429, § 137, p. 1249.

Decisions Under Prior Law

Entry on journal.

Notice.

Entry on Journal.

Entry made by city clerk upon journal at special meeting setting forth that call for special meeting was made and its object and action taken by council at such meeting was sufficient compliance with former similar section. Gale v. City of Moscow, 15 Idaho 332, 97 P. 828 (1908).

Notice.

Where there was a special meeting of city council and mayor and all councilmen except one were present, any business could have been transacted that did not incur an indebtedness, although call for meeting was not made in writing as required by former similar section. Sommercamp v. Kelly, 8 Idaho 712, 71 P. 147 (1902).

Former similar section evidently contemplated that all members of the council could have been found within the city. It was unnecessary to give notice to a member of a special meeting when he was at the time absent from the state or county and could not be notified of the time, and, if notified, could not reach the place of meeting in time for the meeting. Gale v. City of Moscow, 15 Idaho 332, 97 P. 828 (1908).

Former similar section did not require a written notice to be served on the members of the council. It did require that the object of the meeting should have been submitted to the council in writing. Gale v. City of Moscow, 15 Idaho 332, 97 P. 828 (1908).

Prior Laws.

Former§ 50-707, which comprised S.L. 1967, ch. 429, § 138, p. 1249, was repealed by S.L. 1969, ch. 255, § 6.

Amendments.

The 2020 amendment, by ch. 269, rewrote the section to the extent that a detailed comparison is impracticable.

Amendments.

The 2006 amendment, by ch. 105, substituted “shall be required” for “may be required” in the first sentence, and substituted the present last two sentences for the former last sentence which read: “The first notice of election shall be made by the city clerk not less than twenty (20) days next preceding any runoff election, and the designation of polling places shall be made by the city clerk not less than twenty (20) days next preceding any runoff election.”

The 2009 amendment, by ch. 341, in the third sentence, inserted “by the county clerk” and “consistent with chapter 14, title 34, Idaho Code,” and updated the last section reference; in the fourth sentence, substituted “county clerk” for “city clerk”; and, in the last sentence, substituted “county commissioners” for “city clerk.”

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Amendments.

The 2017 amendment, by ch. 129, rewrote the section, which formerly read: “At least once in each quarter of each year, the council shall examine, either in open session or by committee, the accounts and doings of all officers or other persons having the care, management or disposition of moneys, property or business of the city”.

Compiler’s Notes.

Section 4 of S.L. 2017, ch. 129 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act”.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49, of tit. 50.

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Amendments.

The 2015 amendment, by ch. 285, substituted “section 34-1801B” for “section 50-501”.

Amendments.

The 2009 amendment, by ch. 341, in subsection (1), substituted “shall be held on the date authorized in section 34-106, Idaho Code, that is nearest to but not less than sixty (60) days following filing” for “shall be held within sixty (60) days following filing”; and, in subsection (2), substituted “shall be held on the date” for “shall be held not less than sixty (60) days prior to the date.”

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Compiler’s Notes.

The bracketed insertions in three places were added by the compiler to conform to correct the statutory citation style.

Amendments.

The 2009 amendment, by ch. 341, rewrote the first paragraph in subsection (1), which formerly read: “When the proposition submitted to the electors under section 50-803, subsection (1), Idaho Code, received a favorable vote, officials shall be elected at a special election, called for that purpose, to be held not more than sixty (60) days following the date on which the proposition was submitted to the voters; when the proposition submitted to the electors under subsection (2) received a favorable vote, officials shall be elected at the succeeding general city election.”

Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Compiler’s Notes.

The bracketed insertion in the third sentence was added by the compiler to correct the enacting legislation.

Compiler’s Notes.

The bracketed insertion at the end of the section was added by the compiler to conform to the statutory citation style.

Policy Decisions.

The decision to file a lawsuit is not a ministerial or administrative decision but is a policy decision that must be made by the governing board pursuant to the open meeting laws, and the city manager is appointed by the city council as the administrative head of the city government under the direction and supervision of such council, not as the city’s policymaker. City of McCall v. Buxton, 146 Idaho 656, 201 P.3d 629 (2009).

Cross References.

Open public meetings,§§ 74-201 et seq.

General power to enact ordinances,§ 50-302.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49, of tit. 50.

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Section 2 of S.L. 1971, ch. 9, provided that the act should be in full force and effect on and after July 1, 1971.

Decisions Under Prior Law

Style.

Provision relating to style was directory and enacting clause of the village ordinance as follows: “Be it ordained by the town of Post Falls,” was sufficient, as such enacting clause indicated intention and declaration of village to legislate. Best v. Broadhead, 18 Idaho 11, 18 Idaho 16, 108 P. 333 (1909).

ALR.

Construction and application of ordinances relating to unrestrained dogs, cats, or other domesticated animals. 1 A.L.R.4th 994.

Validity and construction of statute or ordinance establishing rent control benefit or rent subsidy for elderly tenants. 5 A.L.R.4th 922.

Right of municipal corporation to review of unfavorable decision in action or prosecution for violation of ordinance, modern status. 11 A.L.R.4th 399.

Construction of provisions of statute or ordinance governing occasion, time or manner of summary destruction of domestic animals by public authorities. 46 A.L.R.4th 839.

Validity and construction of statute, ordinance, or regulation applying to specific dog breeds, such as pit bulls or bull terriers. 80 A.L.R.4th 70.

Effective Dates.

Section 3 of S.L. 1981, ch. 145 declared an emergency. Approved March 27, 1981.

Judicial Notice.

Existence of an ordinance relevant to adjudication of a dispute is a question well-suited to the application of I.R.E. 201, and if an ordinance’s existence is not reasonably in dispute because it is generally known within the territorial jurisdiction of the trial court, or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, then it may be accepted as evidence by judicial notice. Doe v. Doe, 146 Idaho 386, 195 P.3d 745 (Ct. App. 2008).

Resolution.

Cited

The clerk of the city council testified that a motion authorizing the lease of former hospital to state for use as correctional facility was presented at the December 20, 1989, meeting of the city council and that the city council took a final vote at that time. The trial court concluded that the oral motion made and passed by the city council amounted, in substance, to a “resolution” within the meaning of this section prior to execution of the lease. The trial court did not abuse its discretion in admitting the copy of the resolution into evidence. Foster v. City of St. Anthony, 122 Idaho 883, 841 P.2d 413 (1992). Cited Black v. Young, 122 Idaho 302, 834 P.2d 304 (1992).

Decisions Under Prior Law

Amendments.

Ratification of contracts.

Repeals.

Titles.

Amendments.

Amendatory ordinance which purported to amend ordinance by inserting therein particular language without indicating where such insertion shall be made, or containing entire ordinance as amended, or particular section amended, was void. Best v. Broadhead, 18 Idaho 11, 18 Idaho 16, 108 P. 333 (1909).

Ratification of contracts.

Contract made by city council in an emergency without full compliance with former similar section was held to have been ratified by later allowance of claim thereon. Rice v. Gwinn, 5 Idaho 394, 49 P. 412 (1897).

Repeals.

Ordinance could be repealed only in pursuance of same method required for its enactment. Beem v. Davis, 31 Idaho 730, 175 P. 959 (1918).

Titles.

It was sufficient if title in its general scope clearly expressed object and purpose of such ordinance. Village of St. Anthony v. Brandon, 10 Idaho 205, 77 P. 322 (1904); Best v. Broadhead, 18 Idaho 11, 18 Idaho 16, 108 P. 335 (1909).

Title of ordinance was held sufficient. Clyde v. City of Moscow, 23 Idaho 592, 131 P. 381 (1913).

Cross References.

State historical society,§ 67-4113.

Prior Laws.

Former§ 50-907, which comprised 1967, ch. 429, § 158, p. 1249; am. 1976, ch. 50, § 1, p. 150, was repealed by S.L. 2005, ch. 41, § 1.

Amendments.

The 2016 amendment, by ch. 226, rewrote subsection (4), which formerly read: “Semipermanent and temporary records may only be destroyed by resolution of the city council, and upon the advice of the city attorney. Such disposition shall be under the direction and supervision of the city clerk. The resolution ordering destruction shall list in detail records to be destroyed. Prior to destruction of semipermanent records, the city clerk shall provide written notice, including a detailed list of the semipermanent records proposed for destruction, to the Idaho state historical society thirty (30) days prior to the destruction of any records”; in subsection (5), deleted “Prior to January 1, 2007” at the beginning and added subsections (6) and (7), picking up much of what had been codified in former subsection (4).

Compiler’s Notes.

For further information on standards of the American national standards institute, referred to in paragraph (6)(a), see https://www.ansi.org .

Cross References.

State historical society,§ 67-4113.

Prior Laws.

Former§ 50-908, which comprised 1967, ch. 429, § 159, p. 1249; am. 1997, ch. 143, § 1, p. 415, was repealed by S.L. 2005, ch. 41, § 1.

Compiler’s Notes.

The reference to the state archivist, at the end of paragraph (1)(d), is to the state archives administrator at the Idaho state historical society. See https://history.idaho.gov/idaho-state-archives .

Prior Laws.

Former§ 50-909, which comprised 1967, ch. 429, § 160, p. 1249, was repealed by S.L. 2005, ch. 41, § 1.

Compiler’s Notes.

This section, which comprised I.C.,§ 50-910, as added by 1997, ch. 143, § 2, p. 415, was repealed by S.L. 2005, ch. 41, § 1. For present comparable provisions, see§ 50-907.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49, of tit. 50.

Compiler’s Notes.

“Transitional budget and levy.

“The budget adopted by the county commissioners in each of the counties in the state of Idaho during the week of the second Monday in February 1977 shall provide for a fiscal year from the second Monday in January to September 30, 1977. The levy certified on the second Monday of September, 1977 shall be based only upon either said budget and include an estimate of expenditures for an additional three month period, October 1 through December 31, 1977 or upon a budget adopted for the fiscal year October 1, 1977 through September 30, 1978.

“Prior to October 1, 1977 and every year thereafter, all cities and counties in the state of Idaho shall adopt a budget for the ensuing fiscal year, October 1 through September 30.”

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Decisions Under Prior Law

Change in Payment Time.

Change in time of payment of taxes did not deprive city of amount of taxes levied for fiscal year, even though such taxes were not collected during fiscal year for which they were levied. Wycoff v. Strong, 26 Idaho 502, 144 P. 341 (1914).

Decisions Under Prior Law

Effect of limitation on contracts.

Payment of special improvement bonds.

Publication of annual appropriation.

Effect of Limitation on Contracts.

Contract by a city which incurred a total liability to an amount exceeding city’s revenue for year in which contract was made was void if it failed to comply with all provisions of Idaho Const., Art. VIII, § 3, although actual debt incurred thereby would not mature in excess of city’s revenue until after year in which contract was made. Boise Dev. Co. v. City of Boise, 26 Idaho 347, 143 P. 531 (1914).

Debt created by contract made by a city to settle uncertain and unliquidated damage claims against city was held to be a new debt or liability within the provisions of Idaho Const., Art. VIII, § 3, and, therefore, void if it exceeded amount of revenue provided for city for year in which contract was made. Boise Dev. Co. v. City of Boise, 26 Idaho 347, 143 P. 531 (1914).

Payment of Special Improvement Bonds.

The holder of local improvement bonds was not entitled to a mandamus to compel a city to apply unused proceeds of general obligation bonds for payment of assessments against the city’s property, where the city never fixed any amount to be paid from general funds for improvements and the item never was included within the budget or appropriation bill. Reynard v. City of Caldwell, 53 Idaho 62, 21 P.2d 527 (1933).

Publication of Annual Appropriation.

Statutory provisions for publishing notice of annual estimate of municipal appropriations were mandatory. Reynard v. City of Caldwell, 53 Idaho 62, 21 P.2d 527 (1933).

Purpose and Necessity of Compliance.

Preparation and publication of estimate of probable amount of money necessary to be raised for all purposes was condition precedent to levy of taxes under former section governing general tax levies. Graves v. Berry, 35 Idaho 498, 207 P. 718 (1922).

Purpose of requiring publication of estimate was to enable inhabitants and taxpayers to become informed as to purposes for which the amounts were proposed to be levied against their property. Graves v. Berry, 35 Idaho 498, 207 P. 718 (1922).

Cross References.

Secretary of state,§ 67-901 et seq.

Effective Dates.

Section 2 of S.L. 1982, ch. 276 declared an emergency. Approved March 31, 1982.

Decisions Under Prior Law

Appropriation for indebtedness.

Flood damage as authorizing borrowing of money.

Necessity of appropriation bill.

Payment of special improvement bonds.

Petition.

Appropriation for Indebtedness.

Municipal indebtedness incurred in one fiscal year could not be paid from the revenues of a later fiscal year unless there was an appropriation and collection therefor in such later year. Theiss v. Hunter, 4 Idaho 788, 45 P. 2 (1896).

Failure to include in appropriation ordinance specific appropriation for payment of outstanding warrant indebtedness did not oust city council of power thereafter to make such appropriation, or in case of failure to do so prior to time of certifying tax levy for city, it did not deprive them of jurisdiction to certify a sufficient levy within maximum prescribed by former similar section to meet such indebtedness. Standrod v. Case, 24 Idaho 365, 133 P. 651 (1913).

Former similar section did not contemplate an actual levy by city authorities at time of passing appropriation bill for purpose of paying outstanding indebtedness, but it rather required council to make an appropriation of a lump sum for such purpose and limited amount that could be thus appropriated. Standrod v. Case, 24 Idaho 365, 133 P. 651 (1913).

Flood Damage as Authorizing Borrowing of Money.

“Casualty” or “accident,” consisting of continuous floods from December 20, 1933, until after the first part of July, 1934, occurred after city adopted annual appropriation bill on June 11, 1934, so as to authorize it to borrow money to repair and restore damaged sewers without taxpayers’ sanction, though bill failed to provide for such expenditures. Ramstedt v. City of Wallace, 55 Idaho 1, 36 P.2d 772 (1934).

Necessity of Appropriation Bill.

Passage of appropriation bill was condition precedent to authority of village trustees to levy taxes under former section governing general tax levies. Graves v. Berry, 35 Idaho 498, 207 P. 718 (1922).

Bond issue authorized by election was exempt from provision of former similar section that annual appropriation bill must have contained appropriation for necessary expenses. Village of Oakley v. Wilson, 50 Idaho 334, 296 P. 185 (1931).

Payment of Special Improvement Bonds.

Petition.

The holder of local improvement bonds was not entitled to a mandamus to compel a city to apply unused proceeds of general obligation bonds for payment of assessments against the city’s property, where the city never fixed any amount to be paid from general funds for improvements, and the item never was included within the budget or appropriation bill. Reynard v. City of Caldwell, 53 Idaho 62, 21 P.2d 527 (1933). Petition.

Finding by municipal council that petition favoring appropriation was signed by majority of legal voters was presumptively correct. Thomas v. Glindeman, 33 Idaho 394, 195 P. 92 (1921).

In absence of election called for the purpose, there was no way other than by petition signed by majority of legal voters to determine whether majority of qualified voters favor appropriation. Thomas v. Glindeman, 33 Idaho 394, 195 P. 92 (1921).

Effective Dates.

Section 22 of S.L. 1996, ch. 208 declared an emergency and provided that this section should be in effect July 1, 1996. Approved March 12, 1996.

Compiler’s Notes.

This section, which comprised S.L. 1967, ch. 429, § 165; am. 1974, ch. 35, § 1, was repealed by S.L. 1976, ch. 45, § 5 effective July 1, 1977.

Cross References.

Constitutional limitation on indebtedness, Idaho Const., Art. VIII, § 3.

CASE NOTES

Decisions Under Prior Law

Casualty construed.

Emergency expenses.

Flood damage.

Judgment against city.

Pavement expense.

Payment of special improvement bonds.

Street paving.

Time of receiving revenue immaterial.

Casualty Construed.

Progressive decay of underside of planking of municipal wharf was not casualty or accident within meaning of former similar section. Eaton v. Glindeman, 33 Idaho 389, 195 P. 90 (1921).

Word “casualty”, strictly and liberally, was limited to injuries which arose solely from accident, without any element of conscious human design or intentional human agency; something not to be foreseen or guarded against; something that happens not in usual course of events; word “casualty” being synonymous with accident. Eaton v. Glindeman, 33 Idaho 389, 195 P. 90 (1921).

Emergency Expenses.

City council was authorized by two-thirds vote to incur indebtedness to replace waterworks and fire extinguishing apparatus destroyed by fire. Hickey v. City of Nampa, 22 Idaho 41, 124 P. 280 (1912).

Municipal resolution reciting necessity of incurring expense and that it was due to casualty or accident conferred no authority when facts did not bring case within purview of former similar section. Eaton v. Glindeman, 33 Idaho 389, 195 P. 90 (1921).

Appropriation bill was intended to limit expenditures for fiscal year, except in certain cases of casualty or accident. Graves v. Berry, 35 Idaho 498, 207 P. 718 (1922).

Flood Damage.

“Casualty” or “accident,” consisting of continuous floods from December 20, 1933, until after the first part of July, 1934, occurred after city adopted annual appropriation bill on June 11, 1934, so as to have authorized it to borrow money to repair and restore damaged sewers without taxpayers’ sanction, though bill failed to provide for such expenditures. Ramstedt v. City of Wallace, 55 Idaho 1, 36 P.2d 772 (1934).

Judgment Against City.

Judgment against a city for amount due holders of improvement bonds could not properly authorize the issuance of an execution thereon, since such judgment was not subject to be enforced in that manner. Wheeler v. City of Blackfoot, 55 Idaho 599, 45 P.2d 298 (1935).

Pavement Expense.

Franchise, roadbed, tracks and like property of street railroads in pavement improvement district were taxable as “abutting, contiguous, tributary or included lands” in proportion to benefits accruing from the improvement. Reynard v. City of Caldwell, 55 Idaho 342, 42 P.2d 292 (1935).

Payment of Special Improvement Bonds.

The holder of local improvement bonds was not entitled to a mandamus to compel a city to apply unused proceeds of general obligation bonds for payment of assessments against the city’s property, where the city never fixed any amount to be paid from general funds for improvements and the item never was included within the budget or appropriation bill. Reynard v. City of Caldwell, 53 Idaho 62, 21 P.2d 527 (1933).

Street Paving.

Expense of paving streets was not an “ordinary and necessary expense,” as regards statutory provision limiting expenditures to amount of appropriation. Reynard v. City of Caldwell, 53 Idaho 62, 21 P.2d 527 (1933).

Time of Receiving Revenue Immaterial.

Fact that time for collection of taxes could be made after commencement of fiscal year different from that in which they were levied did not deprive city of taxes levied for any fiscal year, even though they were collected in a succeeding fiscal year. Wycoff v. Strong, 26 Idaho 502, 144 P. 341 (1914).

Cross References.

Airports, levy,§ 21-404.

Authorized to levy taxes,§ 50-235.

Capital improvement fund levy,§ 50-236.

Collection and payment of property taxes,§ 63-901 et seq.

Limitation on property taxes,§ 63-1313.

Policemen’s retirement fund, special levy,§ 50-1512.

Recreation and culture, special levy,§ 50-303.

Special assessment levies,§ 50-1004.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to reflect the language of the 2002 amendment of§ 63-803(3).

The term “this act” near the end of the second sentence refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code. Section 2 of S.L. 1977, ch. 184 read, “Cities and counties may issue tax anticipation notes or bonds during the transitional fiscal year 1977, January through September 30, based upon the amount to be certified to the county commissioners prior to the second Monday of September, 1977, and subject to the percentage limitations set forth in section 63-3102, Idaho Code. Each city or county may make only one (1) certification, either for the current or the ensuing fiscal year.”

Effective Dates.

Section 32 of S. L. 1976, ch. 45 read, “In order to provide an orderly sequence for implementation of the provisions of this act:

“(a) Sections 1, 2, 3, 4, 7, 8, 9, 10, 11, 15, 27 and 31 shall be in full force and effect on and after January 1, 1977;

“(b) Sections 5, 6, 12, 13, 14, 20, 21, 22, 26 and 30 shall be in full force and effect on and after July 1, 1977; and

“(c) Sections 16, 17, 18, 19, 23, 24, 25, 28 and 29 shall be in full force and effect on and after October 1, 1977.”

Section 3 of S.L. 1977, ch. 184 declared an emergency and provided that the act should be in full force and effect on and after approval retroactive to January 1, 1977.

Decisions Under Prior Law

Changing levy.

City liable for embezzlement.

Clerk to make collections.

Compensation for collection.

Construction.

Illegality of collection.

Special taxes.

Warrants issued in former years.

Changing Levy.

City council, any time before certifying tax levy for city, could change same. Standrod v. Case, 24 Idaho 365, 133 P. 651 (1913).

City Liable for Embezzlement.

A city which permitted its clerk to collect local improvement assessments in pursuance of statutory authority therefor could not subsequently have questioned the legality of collection by city clerk rather than by county tax collector as defense to action by bondholder for value of special assessment bonds which remained unpaid as result of the city clerk’s embezzlement of funds which had been collected for payment of such bonds. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1938).

Clerk to Make Collections.

A clerk of a city had statutory authority to receive and receipt for local improvement assessments. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1938).

Compensation for Collection.

Neither county nor tax collector was authorized to retain any part of taxes collected as compensation for collecting them. City of Moscow v. Latah County, 5 Idaho 36, 46 P. 874 (1896).

Construction.

Levy authorized under former similar section could include a levy for the redemption of outstanding warrants for which an appropriation had been made under former section governing the annual appropriation bill. Standrod v. Case, 24 Idaho 365, 133 P. 651 (1913).

The power to levy the tax was conferred by former section governing general tax levies, while former section governing certification provided for its certification and collection. Standrod v. Case, 24 Idaho 365, 133 P. 651 (1913).

Illegality of Collection.

A city which permitted its clerk to collect local improvement assessments, which were properly paid in part to bondholders by the city treasurer, could not have alleged illegality of collection by clerk, rather than by county tax collecting officer, as defense to action for value of bonds which remained unpaid as result of city clerk’s embezzlement of funds which clerk had collected, since municipality had ratified the acts of the clerk in collecting such assessments. Cruzen v. Boise City, 58 Idaho 406, 74 P.2d 1037 (1938).

Special Taxes.

Former similar section was not repealed by statute authorizing the construction of sewers; and city authorities could certify sewerage taxes to county tax collector to be collected as other taxes. Denning v. City of Moscow, 11 Idaho 415, 83 P. 339 (1905).

Warrants Issued in Former Years.

City treasurer could not be compelled to pay warrants issued in former years unless the revenues of the present year were levied to include such indebtedness. Theiss v. Hunter, 4 Idaho 788, 45 P. 2 (1896).

Compiler’s Notes.

The term “this act” near the beginning of the section refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code.

Effective Dates.

Section 2 of S.L. 1973, ch. 289 provided the act should take effect on and after July 1, 1973.

Compiler’s Notes.

This section, which comprised S.L. 1969, ch. 429, § 169, was repealed by S.L. 1972, ch. 17, § 1.

Amendments.

This section was amended by two 1993 acts which appear to be compatible and have been compiled together.

The 1993 amendment, by ch. 327, in the former last paragraph of this section substituted “council” for “auditor”. However, ch. 387, § 15 deleted the former last paragraph of this section which read: “The council is hereby required to file one (1) copy of such completed audit report with the legislative auditor within ten (10) days after its delivery by the contracting auditor.” Therefore, the former last paragraph has been deleted.

The 1993 amendment, by ch. 387, in the first paragraph deleted “all” following “a full and complete audit of”; substituted “statements” for “transactions” preceding “of such city”; at the end of the first paragraph substituted “as required in section 67-450B, Idaho Code” for “every year; however, lacking more stringent requirements by contract or government law, rule, or regulation, any city whose annual budget for all purposes does not exceed two hundred fifty thousand dollars ($250,000) may elect to have its financial transactions audited on a biennial basis and may continue biennial auditing cycles in subsequent years provided that the city’s annual budget does not exceed two hundred fifty thousand dollars ($250,000) during any biennial period.”; deleted the former last two sentences of the first paragraph; and deleted the former last paragraph of this section.

Compiler’s Notes.

Section 41 of S.L. 1993, ch. 327 read: “All employees employed by the Joint Senate Finance-House Appropriations Committee, the Legislative Auditor or Legislative Budget Office on June 30, 1993, shall be transferred to the Legislative Council and shall be deemed to be employees of the Legislative Council on July 1, 1993. All moneys which have been appropriated to and been encumbered by the Joint Senate Finance-House Appropriations Committee, the Legislative Budget Office and the Legislative Auditor on June 30, 1993, shall be transferred to the Legislative Council and shall be deemed to be encumbered by that body. All moneys appropriated to the Joint Senate Finance-House Appropriations Committee for the Legislative Auditor and the Legislative Budget Office are deemed appropriated to the Legislative Council for the same period and purpose.”

Compiler’s Notes.

The bracketed insertion in the third sentence was added by the compiler to clarify the sentence.

Effective Dates.

Section 3 of S.L. 1979, ch. 90 declared an emergency. Approved March 20, 1979.

Section 2 of S.L. 1989, ch. 28 declared an emergency. Approved March 20, 1989.

Compiler’s Notes.

This section, which comprised I.C.,§ 50-1012, as added by 1974, ch. 71, § 2, p. 1152, am. 1994, ch. 180, § 91, p. 420, was repealed by S.L. 2003, ch. 32, § 1.

Cross References.

Housing authorities and cooperation law,§ 50-1901 et seq.

Idaho state building authority act,§ 67-6401 et seq.

Idaho water resources board,§ 42-1732 et seq.

Revenue bond act,§ 50-1027 et seq.

Compiler’s Notes.

The bracketed insertion in subsection (i) was added by the compiler to correct the name of the referenced agency. See§ 67-6201 et seq.

The reference to the federal savings and loan corporation in subsection (m) should be to the federal savings and loan insurance corporation. However, that agency was abolished in 1989 and its duties were transferred to the federal deposit insurance corporation. See https://www.fdic.gov/ .

For more information on the national credit union share insurance fund, referred to in subsection (n), see https://www.ncua.gov/services/Pages/share-insurance.aspx .

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 1970, ch. 76 declared an emergency. Approved March 2, 1970.

Section 2, S.L. 1972, ch. 170 declared an emergency. Approved March 17, 1972.

Decisions Under Prior Law

Application.

Deposit and investment.

Application.

Former section governing deposit of municipal funds did not apply to the deposit of irrigation district funds. In re Bank of Nampa, Ltd., 29 Idaho 166, 157 P. 1117 (1916).

Deposit and Investment.

Deposit was temporary disposition of money for safekeeping and its temporary nature made it distinguishable from an investment which carries with it greater degree of permanency. City of Pocatello v. Fargo, 41 Idaho 432, 41 Idaho 454, 242 P. 297 (1924).

Objection that ordinance designating bank as depositary was not legally passed and void would not be entertained, especially where bank had received deposit and acted in depositary capacity. City of Pocatello v. Fargo, 41 Idaho 432, 41 Idaho 454, 242 P. 297 (1924).

Placing of public funds with bank under time certificate of deposit was, in effect, loan to bank on its promissory note. City of Pocatello v. Fargo, 41 Idaho 432, 41 Idaho 454, 242 P. 297 (1924).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 2 of S.L. 1969, ch. 120 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Cross References.

Policemen’s retirement fund,§ 50-1501 et seq.

Cross References.

Damage claims, manner of presentation and payment,§ 50-219.

Effective Dates.

Section 3 of S.L. 2003, ch. 69 declared an emergency. Approved March 13, 2003.

Decisions Under Prior Law

Suit against councilmen.

Torts.

Suit Against Councilmen.

Plaintiff who sustained personal injuries as the result of a dead end street accident in a city was not barred from suing councilmen based on their alleged negligence to maintain warning signs merely because the plaintiff failed to file a claim against the city. Lemmon v. Clayton, 128 F. Supp. 771 (D. Idaho 1955).

Torts.

Claims for torts did not come within former similar section. Miller v. Mullan, 17 Idaho 28, 104 P. 660 (1909).

ALR.

§ 50-1018. Payment of claims.

Upon approval of claims by the council, payment may be ordered by warrant or by electronic means, signed by or authorized by the mayor and clerk or by check or by electronic means signed by or authorized by the mayor and treasurer. The order for their payment shall specify the particular fund or appropriation out of which they are payable, as specified in the annual appropriation bill. In the absence of sufficient funds, the council may, by resolution, order payment of claims by money borrowed by either:

1. Registered warrants as provided in section 31-2125, Idaho Code, or
2. By issuing its tax [revenue] anticipation notes as provided in section 63-3102, Idaho Code, or
3. Short term borrowing not involved with the tax effort in anticipation of approved federal or state grants.

History.

1967, ch. 429, § 178, p. 1249; am. 1976, ch. 48, § 1, p. 147; am. 2003, ch. 69, § 2, p. 235.

Cross References.

Payment of invalid or stale claims prohibited,§ 50-218.

Compiler’s Notes.

The bracketed insertion in paragraph (2) was added by the compiler to reflect the language of the 1988 amendment of§ 63-3102.

Effective Dates.

Section 3 of S.L. 2003, ch. 69 declared an emergency. Approved March 13, 2003.

Cross References.

Power to issue bonds,§ 50-237.

Amendments.

This section was amended by two 1980 acts, Chapters 54 and 350, which made different changes in the first paragraph of the section. Accordingly, that paragraph reflects the conflicting amendments with the varying language of S.L. 1980, Chapter 350 in brackets. In addition, S.L. 1980, Chapter 54 added subsection (11).

Effective Dates.

Section 2 of S.L. 1968 (2nd E.S.), ch. 7 declared an emergency. Approved February 12, 1968.

Attempted Evasion.

City could not evade provisions of former similar section limiting bonded indebtedness to certain percentage of real estate valuation for preceding year, by voting bonds for partial payment on a contract, and making no legal provision for balance due upon said contract. Woodward v. City of Grangeville, 13 Idaho 652, 92 P. 840 (1907).

A city could not pledge its revenues from any source whatever without creating an indebtedness subject to the restriction of Idaho Const., Art. 8, § 3. Williams v. City of Emmett, 51 Idaho 500, 6 P.2d 475 (1931). Former sections dealing with municipal bonds did not provide for the issuance of municipal bonds for the construction and operation of a system for the distribution of gas and the creation of the cooperative in question, its contracts for the purchase of gas and for the sale of its bonds to raise funds for the construction, operation and maintenance of a gas distribution system and the ordinance of the City of Idaho Falls granting an exclusive franchise for thirty years to the cooperative with the contract provided for by such ordinance, were all parts of a plan and design devised to enable the City of Idaho Falls to evade and circumvent the limitations and prohibitions of the constitution and statutes. O’Bryant v. City of Idaho Falls, 78 Idaho 313, 303 P.2d 672 (1956).

Charter Provisions.

Act of legislature amending charter of city, providing that fifteen per cent of entire property of city, both personal and real, could be considered as basis for issuing bonds for municipal improvements, wherein it was provided that bonds should not be issued in excess of fifteen per cent of the taxable property as shown by the assessment of the preceding year, was a local or special law, but did not conflict with state constitution. Wiggin v. City of Lewiston, 8 Idaho 527, 69 P. 286 (1902).

City Hall.

Issuance of bonds by City of Gooding for city hall was held proper. Thomas v. City of Gooding, 27 Idaho 624, 149 P. 1064 (1915).

Distinguished From Local Improvements.

Where streets were paved and assessments were made against abutting property, improvement district bonds could be issued without submitting question of issuing bonds to electors or taxpayers of either improvement district or city, but where cost and expenses were to be paid by city, and bonds were to be issued for purpose of raising revenue to pay same, then such question was required to be submitted to electors and taxpayers of city. Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034 (1912).

Ditches.

In exercising its right to grade its streets, city could, if necessary, have removed ditches and required their reconstruction by pipelines laid beneath surface by company possessing franchise and easement for such ditches. City of Nampa v. Nampa & Meridian Irrigation Dist., 19 Idaho 779, 115 P. 979 (1911).

Equitable Relief on Void Bonds.

In an action to cancel bonds and interest coupons, which had been adjudged to have been issued in violation of constitutional and statutory debt limitations, the holder of such bonds was not entitled to have equity direct an accounting and fix general debt liability against a village, since the bonds were void and not voidable, and equity could not and would not afford relief in violation of constitutional prohibitions. Village of Heyburn v. Security Sav. & Trust Co., 55 Idaho 732, 49 P.2d 258 (1935).

Funding and Refunding Bonds.

Nature of Power to Issue Bonds.

Where the bondholder was willing to accept payment in advance of maturity, former similar section clearly implied the authority for the village to issue and sell refunding revenue bonds, to provide the means of payment and redemption, before maturity, of the outstanding water and sewer revenue bonds, when such could be done without increasing the outstanding indebtedness and with a savings to those served by the work. Such bonds could be authorized, issued and sold either by ordinance or resolution and without a vote of the electors of the village. Adams v. Pritchard, 88 Idaho 325, 399 P.2d 252 (1965). Nature of Power to Issue Bonds.

Power of municipality to issue bonds for improvement of light and power plant was grant of authority from state and was required to be construed strictly against grantee. Bradbury v. City of Idaho Falls, 32 Idaho 28, 177 P. 388 (1918).

Parks.

Grant to municipality of power to maintain park enjoined no absolute duty to do so. Maintenance of parks was primarily a private as opposed to a governmental function. Boise Dev. Co. v. Boise City, 30 Idaho 675, 167 P. 1032 (1917).

Statutory Provisions Incorporated in Bond.

Provisions of former similar section referred to in ordinance and bonds were to be read into, and made part of, bonds, and they become binding on purchasers. Neighbors of Woodcraft v. Rupert, 51 Idaho 215, 4 P.2d 360 (1931).

Decisions Under Prior Law

Power plant bond issues.

Proprietary capacity.

Village water supply.

Power Plant Bond Issues.

Proceeding of a city, relating to a municipal electric power generating plant and distribution system bond issue election and increasing liability of the city, was void under the Idaho statute and constitution, where the plan involved debt exceeding the amount authorized by ordinance and the voters of the city, and, therefore, the court would not modify its injunction restraining the city from entering into a contract with the federal emergency administration of public works for the purpose of providing funds for the construction of the plant and system. Washington Water Power Co. v. City of Coeur d’Alene, 25 F. Supp. 795 (D. Idaho 1938).

Proprietary Capacity.

Village Water Supply.

A municipal corporation in the ownership, maintenance and operation of a municipal water system supplying water to its inhabitants for pay, acted in a proprietary, not in a governmental, capacity. Gilbert v. Bancroft, 80 Idaho 186, 327 P.2d 378 (1958). Village Water Supply.

Village had power and authority to contract for supply of water. Jack v. Village of Grangeville, 9 Idaho 291, 74 P. 969 (1903); City of Pocatello v. Murray, 21 Idaho 180, 120 P. 812, aff’d, 226 U.S. 318, 33 S. Ct. 107, 57 L. Ed. 239 (1912).

Compiler’s Notes.

The first bracketed insertion was added by the compiler to conform to the statutory citation style.

The second bracketed insertion was added by the compiler to clarify the sentence.

The third bracketed insertion was added by the compiler to supply the probable intended term.

Compiler’s Notes.

The bracketed word “sewerage” was inserted by the compiler, as the probable intended term.

Cross References.

City elections,§ 50-401 et seq.

Municipal bond law,§ 57-201 et seq.

Amendments.

The 2009 amendment, by ch. 341, in the first sentence in the last paragraph, inserted “the date” and “that is in accordance with the dates authorized in section 50-405, Idaho Code,” deleted “thirty (30) days” preceding “notice,” and added “by the county clerk in accordance with election law in title 34, Idaho Code.”

Compiler’s Notes.

Effective Dates.

The 2011 amendment, by ch. 11, divided the first former sentence of the second paragraph into two sentences, inserting “falls more than forty-five (45) days after the clerk of the political subdivision orders that such election shall be held” as the end of the present first sentence. Effective Dates.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Section 27 of S.L. 2011, ch. 11 declared an emergency retroactively to January 1, 2011 and approved February 23, 2011.

Constitutionality.

Two thirds affirmative vote requirement of this section and Idaho Const., Art. VIII, § 3, as applied to issuance by city of general obligation bonds to finance airport terminal and municipal swimming pool, was not offensive to Equal Protection Clause, Fourteenth Amendment, U.S. Constitution, as violative of principle of one man, one vote. Bogert v. Kinzer, 93 Idaho 515, 465 P.2d 639 (1970), appeal dismissed, 403 U.S. 914, 91 S. Ct. 2224, 29 L. Ed. 2d 691 (1971).

Projects Financed Under Section.

In a ground lease and power sales contract relating to the construction of a hydroelectric project, to be financed by the city under this section and§ 50-1026A, a contractual obligation to sell a certain percentage of power to the company leasing property to the city for the project for a period in excess of the proposed term of the bonds did not violate either Idaho Const., Art. VIII, § 4 or Idaho Const., Art. XII, § 4, prohibiting loans or donations of public credit, since such obligation was of a contractual nature, and a sale for adequate consideration did not amount to a loan or donation; the accrual of incidental benefits to a private enterprise will not invalidate an otherwise constitutional transaction. Utah Power & Light Co. v. Campbell, 108 Idaho 950, 703 P.2d 714 (1985).

Qualification of Voters.

A compelling state interest in limiting the franchise in special elections to approve general obligation bonds to electors who are real property taxpayers prevails over City of Phoenix v. Kolodziejski which holds that property qualifications are invalid insofar as the franchise to vote in general obligation bond elections are concerned. Muench v. Paine, 94 Idaho 12, 480 P.2d 196 (1971). See City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S. Ct. 1990, 26 L. Ed. 2d 523 (1970).

Decisions Under Prior Law

Power plant bonds.

Qualifications of voters.

Refunding bonds. Statement of purpose in ordinance.

Submission of several propositions.

Sufficiency of ballot.

Sufficiency of notice.

Test of sufficiency of notice or ordinance.

Power Plant Bonds.

Proceeding of a city, relating to a municipal electric power generating plant and distribution system bond issue election, and increasing liability of the city, was void under the Idaho statute and constitution, where the plan involved debt exceeding the amount authorized by ordinance and the voters of the city; therefore, the court would not modify its injunction restraining the city from entering into a contract with the federal emergency administration of public works for the purpose of providing funds for the construction of the plant and system. Washington Water Power Co. v. City of Coeur d’Alene, 25 F. Supp. 795 (D. Idaho 1938).

Qualifications of Voters.

Provision of former similar section prescribing qualification of voter at municipal bond election did not apply to one who had paid registration fee on automobile but owned no other taxable property. Hartman v. Meier, 39 Idaho 261, 227 P. 25 (1924).

Purpose of former similar section was to restrict issuance of bonds to such issues as should be consented to by at least two thirds of those who were to be primarily affected by burden thereby imposed. Hartman v. Meier, 39 Idaho 261, 227 P. 25 (1924).

Resident of municipality owning no taxable property other than automobile on which he had paid registration fee was not qualified to vote at municipal bond election. Hartman v. Meier, 39 Idaho 261, 227 P. 25 (1924).

Refunding Bonds.

Provisions of former similar section were not intended to apply to issuance of refunding bonds of municipalities when issuance of such bonds would not create an additional indebtedness or liability of municipality. Veatch v. City of Moscow, 18 Idaho 313, 109 P. 722 (1910).

Statement of Purpose in Ordinance.

Provision of former similar section which required bonding ordinance to specify purpose of issuing proposed bonds was not complied with by an ordinance stating purpose of bonds to be “to fund the outstanding indebtedness of said city.” Coffin v. Richards, 6 Idaho 741, 59 P. 562 (1899).

Submission of Several Propositions.

Former similar section did not require a separate election ordinance for each proposed issue of municipal bonds. Different propositions for different objects may have been embodied in one ordinance, provided that each proposition was so clearly and distinctly submitted to electors of municipality that they could adopt or reject it, independently of others. Platt v. City of Payette, 19 Idaho 470, 114 P. 25 (1911).

Proposition could include but one purpose. Corker v. Village of Mt. Home, 20 Idaho 32, 116 P. 108 (1911). Several distinct and independent purposes or propositions may be incorporated in one ordinance submitting question of issuing municipal bonds by a municipal corporation, providing such purposes were separately stated and voters at municipal election were given an opportunity to express their will upon each purpose or question as a separate and independent proposition or question. Ostrander v. City of Salmon, 20 Idaho 153, 117 P. 692 (1911).

Where, however, propositions to be determined were distinct and different propositions and were to be determined under different provisions of statute, there should be a separate ordinance with reference to each proposition. Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034 (1912).

Sufficiency of Ballot.

Ballot in exact language of former similar section was sufficient. Brown v. Village of Grangeville, 8 Idaho 784, 71 P. 151 (1903).

Sufficiency of Notice.

Where mayor published proclamation for period of more than thirty days in a newspaper published in city, giving time and place when an election would be held to vote upon a proposition to issue bonds for municipal improvement, there was a sufficient compliance with former similar section. Sommercamp v. Kelly, 8 Idaho 712, 71 P. 147 (1902).

Test of Sufficiency of Notice or Ordinance.

Test of sufficiency or validity of a notice or ordinance in this respect was whether voters at general election held pursuant to ordinance and notice could be reasonably presumed from notice itself and ordinance to have understood the question submitted to them. Corker v. Village of Mt. Home, 20 Idaho 32, 116 P. 108 (1911).

Cross References.

Revenue Bond Act,§ 50-1027 et seq.

Compiler’s Notes.

Section 2 of S.L. 1981, ch. 218 read: “If any one or more sentences, clauses, phrases, provisions or sections of this act, or the application thereof to any set of circumstances, shall be held by final judgment of any court of competent jurisdiction to be invalid, the remaining sentences, clauses, phrases, provisions and sections hereof and the application of this act to other sets of circumstances shall nevertheless continue to be valid and effective, the legislature hereby declaring that all sentences, clauses, phrases, provisions and sections of this act are severable.”

Effective Dates.

Section 3 of S.L. 1981, ch. 218 declared an emergency. Approved April 6, 1981.

Contracts Financed Under Section.

In a ground lease and power sales contract relating to the construction of a hydroelectric project to be financed by the city under this section and§ 50-1026, a contractual obligation to sell a certain percentage of power to the company leasing property to the city for the project for a period in excess of the proposed term of the bonds did not violate either Idaho Const., Art. VIII, § 4 or Idaho Const., Art. XII, § 4, prohibiting loans or donations of public credit, since such obligation was of a contractual nature, and a sale for adequate consideration did not amount to a loan or donation; the accrual of incidental benefits to a private enterprise will not invalidate an otherwise constitutional transaction. Utah Power & Light Co. v. Campbell, 108 Idaho 950, 703 P.2d 714 (1985).

Compiler’s Notes.

The section defines the revenue bond act as the “following fifteen (15) sections” of S.L. 1967, Chapter 429. As codified, those sections are§§ 50-1028 to 50-1035 and 50-1036 to 50-1042. Section 50-1035A was added by S.L. 1981, ch. 300, § 3.

Rates, Fees and Charges.

When the rates, fees and charges of water and sewerage system conform to the statutory scheme set forth in the Idaho revenue bond act or are imposed pursuant to a valid police power, the charges are not construed as taxes. However, if the rates, fees and charges are imposed primarily for revenue raising purposes they are, in essence, disguised taxes and subject to legislative approval and authority. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

Because§ 50-1033(b) allows the collection of revenues sufficient to cover certain costs, city under contract to treat other city’s wastewater did not violate the revenue bond act by charging a rate of return for wastewater treatment. City of Chubbuck v. City of Pocatello, 127 Idaho 198, 899 P.2d 411 (1995).

— Connection Fees.

The Idaho revenue bond act authorizes the collection of sewer connection fees, and it is clear that so long as the fees collected pursuant to the Idaho revenue bond act are allocated and budgeted in conformity with that act they will not be construed as taxes requiring approval of the electorate. However, if fees are collected under the disguise of the act and allocated and spent otherwise, then the fees are primarily revenue raising and will be construed as taxes. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

Decisions Under Prior Law

Attempted Evasion.

Former sections, containing the revenue bond act, did not authorize issuance of bonds for the construction and operation of a system for the distribution of gas and the creation of the cooperative in question, its contracts for the purchase of gas and for the sale of its bonds to raise funds for the construction, operation and maintenance of a gas distribution system and the ordinance of the City of Idaho Falls granting an exclusive franchise for thirty years to the cooperative with the contract provided for by such ordinance, were all parts of a plan and design provided to enable the City of Idaho Falls to evade and circumvent the limitations and prohibitions of the constitution and statutes and to exercise powers not granted to a municipality. O’Bryant v. City of Idaho Falls, 78 Idaho 313, 303 P.2d 672 (1956).

Compiler’s Notes.

The term “this act” in the first sentence refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code. However, in the context of§ 50-1027, the term may mean the “revenue bond act,” codified as§§ 50-1027 to 50-1042.

Fee and Rate System.

A connection fee may be imposed by the police power or other statutory power and will be upheld by the courts if it is not unreasonable and not arbitrarily imposed. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

It is not the province of the court to determine how a municipality should allocate its fee and rate system. So long as the fees and rates charged conform to the statutory requirements and are reasonable, the fees, rates and charges will be upheld; the fees, rates and charges imposed by the municipality must be reasonable and produce sufficient revenue to support the system at the lowest possible cost as required by the Idaho revenue bond act. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

Because§ 50-1033(b) allows the collection of revenues sufficient to cover certain costs, city under contract to treat other city’s wastewater did not violate the revenue bond act by charging a rate of return for wastewater treatment. City of Chubbuck v. City of Pocatello, 127 Idaho 198, 899 P.2d 411 (1995).

Decisions Under Prior Law

Combination of systems. Refunding bonds.

Combination of Systems.

Village was entitled to combine its water system and sewerage system and issue water and sewer revenue bonds with a pledge of the net revenue of both as sole security even though water system presently existed and sewerage system was nonexistent, since intention of legislature was to make it possible to establish and maintain any or all of such systems in any combination which would serve best interests of a municipality. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953).

Refunding Bonds.

The savings to users by means of refunding the outstanding bonds at a lower rate of interest was in harmony with, and in furtherance of, the legislative policy declared in former similar section. Adams v. Pritchard, 88 Idaho 325, 399 P.2d 252 (1965).

Amendments.

The 2011 amendment, by ch. 129, in subsection (a), inserted “airport facilities and” and “electric systems”; in subsection (e), substituted “political subdivision of the state” for “city”, inserted “or owned or operated by a regional airport authority as defined by law” and added the language beginning “which are hereby deemed to be for a public purpose” through to the end; and added subsection (h).

Compiler’s Notes.

Section 1 of S.L. 1978, ch. 330 purported to amend this section. Section 3 of that act provided that the act should take effect when the amendment to Article VIII, § 3 of the Idaho Constitution which was proposed by the Second Regular Session of the Forty-Fourth Idaho Legislature was ratified. However, the proposed constitutional amendment was defeated and, accordingly, the amendment to this section never took effect.

The term “this act” in the introductory paragraph refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code. However, in the context of§ 50-1027, the term may mean the “revenue bond act,” codified as§§ 50-1027 to 50-1042.

Effective Dates.

Section 2 of S.L. 1969, ch. 193 provided that the act should be in full force and effect on and after July 1, 1969.

Cross References.

Revenue bond act,§ 50-1027 et seq.

Amendments.

The 2011 amendment, by ch. 129, added subsection (j).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

The term “this act” in subsection (c) refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code. However, in the context of§ 50-1027, the term may mean the “revenue bond act,” codified as§§ 50-1027 to 50-1042.

Effective Dates.

Section 2 of S.L. 1971, ch. 112 declared an emergency. Approved March 15, 1971.

Condemnation.

City lacked extraterritorial eminent domain power to condemn easements located outside of its boundaries for the purpose of constructing electric transmission lines because there is no express grant of extraterritorial eminent domain power in in the general eminent domain statutes,§§ 7-701, 7-720. Subsection (c) of this section indicates that the legislature did not intend to augment the scope of the eminent domain power beyond the provisions of§ 7-720, and the extraterritorial power of eminent domain to construct transmission lines was not implied or incident to the city’s expressly granted powers. Alliance v. City of Idaho Falls, 742 F.3d 1100 (9th Cir. 2013).

Liability for Charges Incurred by Tenants.

A city did not have implied power to collect from a property owner for charges incurred by tenants for water, sewer and garbage services. City of Grangeville v. Haskin, 116 Idaho 535, 777 P.2d 1208 (1989).

Rates, Fees and Charges.

Where city based connection fees charged users of water and sewer system on formula termed “equity buy-in” and city annually was required to revalue the fees pursuant to the formula and all revenue from the fees was placed in a separate account and used only for replacement of existing facilities and equipment, no moneys were placed in the general operating funds of the city and none was used for expansion or improvement of the existing system, it was not necessary that a municipality have an election such as prescribed in Const., Art. VIII, § 3 prior to changing the rates, fees or charges imposed in establishing the cost of public works services such as sewer or water connection fees. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991). Where city, after receiving an engineering report, selected a system in which the new user buys into a portion of the current value of the water and sewer system capacity and such method attempts to determine the current value of the system and then apportion a share of the value of that system to a new user, the methodology used to determine the value of the system is not unreasonable, nor is it unreasonable to charge a new user the value of that portion of the system capacity that the new user will utilize at that point in time; and the fact the connection fee may be higher in such city than in other municipalities will not invalidate the fee as long as it is reasonable and is not primarily a source of revenue; thus, where ordinance specifically states that its intent is to “recover the costs of operating, maintaining, replacing, and depreciating the existing water and sewer systems and any extensions thereof,” there is nothing in the ordinance that is not authorized by the Idaho revenue bond act and court found no evidence in the record that the fees charged by the city were arbitrary or unreasonable. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

Cities can legally assess buy-in fees when those fees are reasonably connected to the actual costs such additional users will engender. The correct amount is to be calculated by dividing the net system replacement value by the number of users the system can support. The new user is charged the value of that portion of the system capacity that the new user will utilize at that point in time. N. Idaho Bldg. Contrs. Ass’n v. City of Hayden, 164 Idaho 530, 432 P.3d 976 (2018).

So long as the fees collected pursuant to the Idaho revenue bond act are allocated and budgeted in conformity with that act they will not be construed as taxes. However, if fees are collected under the disguise of the act and allocated and spent otherwise, then the fees are primarily revenue raising and will be construed as taxes. N. Idaho Bldg. Contrs. Ass’n v. City of Hayden, 164 Idaho 530, 432 P.3d 976 (2018).

Decisions Under Prior Law

Acquisition of land.

Combination of systems.

Constitutionality.

Disconnection charge.

Removal of water company’s pipes.

Sewage disposal.

Acquisition of Land.

Combination of Systems.

A village was entitled to acquire land without the village for the purpose of constructing a sewage disposal and treatment plant. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953). Combination of Systems.

Village was entitled to combine its water system and sewerage systems and issue water and sewer revenue bonds with a pledge of the net revenue of both as sole security even though water system presently existed and sewerage system was nonexistent, since intention of legislature was to make it possible to establish and maintain any or all of such systems in any combination which would serve best interests of a municipality. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953).

Constitutionality.

Provision of ordinance and former similar section granting authority to municipality to discontinue service to any one who failed to pay charges for water and sewer service is constitutional. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953).

Disconnection Charge.

Provisions in ordinance for charge of $1.00 for disconnection of service from municipal water and sewerage systems on default in payment and charge of $1.00 for reconnection were valid since specific charges covered only the cost of disconnection and reconnection. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953).

Removal of Water Company’s Pipes.

Unincorporated village was not required to obtain consent of public utilities commission before requiring removal of pipes and apparatus of a private water company, though water company as a public utility was subject to regulation by the commission, since municipalities retain the right to control and maintain its streets and alleys. Village of Lapwai v. Alligier, 78 Idaho 124, 299 P.2d 475 (1956).

Sewage Disposal.

As a municipal corporation, the village possessed legislatively delegated power to construct, operate and maintain sewage disposal facilities and to issue its bonds for the purpose of acquiring and constructing sewage treatment and disposal plants, together with lands and appurtenances. Larsen v. Village of Lava Hot Springs, 88 Idaho 64, 396 P.2d 471 (1964).

A sewage disposal facility, legal in its inception, was not a nuisance per se, and its location and the manner of its operation would determine whether it was a nuisance in fact. Larsen v. Village of Lava Hot Springs, 88 Idaho 64, 396 P.2d 471 (1964).

Compiler’s Notes.

The term “this act” near the middle of the section refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code. However, in the context of§ 50-1027, the term may mean the “revenue bond act,” codified as§§ 50-1027 to 50-1042.

Compiler’s Notes.

The term “this act” near the beginning of the section refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code. However, in the context of§ 50-1027, the term may mean the “revenue bond act,” codified as§§ 50-1027 to 50-1042.

Fee Structure.

The fees, rates and charges imposed by a municipality must be reasonable and must produce sufficient revenue to support the public works project at the lowest possible cost. The law only requires that the fee be reasonably related to the benefit conveyed. Manwaring Invs., LC v. City of Blackfoot, 162 Idaho 763, 405 P.3d 22 (2017), overruled on other grounds, N. Idaho Bldg. Contrs. Ass’n v. City of Hayden, 164 Idaho 530, 432 P.3d 976 (2018).

Rates, Fees and Charges.

The legislature has not imposed exacting rate requirements upon localities. The law requires only that the fee be reasonably related to the benefit conveyed. Creating a fee structure for a wastewater system whereby every member of the general public would be charged only for his or her exact contribution of waste presumably could be established, but the system would be cumbersome and perhaps prohibitively expensive to maintain. Manwaring Invs., LC v. City of Blackfoot, 162 Idaho 763, 405 P.3d 22 (2017), overruled on other grounds, N. Idaho Bldg. Contrs. Ass’n v. City of Hayden, 164 Idaho 530, 432 P.3d 976 (2018). Rates, Fees and Charges.

Where city, after receiving an engineering report, selected a system in which the new user buys into a portion of the current value of the water and sewer system capacity and such method attempts to determine the current value of the system and then apportion a share of the value of that system to a new user, the methodology used to determine the value of the system is not unreasonable, nor is it unreasonable to charge a new user the value of that portion of the system capacity that the new user will utilize at that point in time; and the fact that the connection fee may be higher in such city than in other municipalities will not invalidate the fee as long as it is reasonable and is not primarily a source of revenue; since the ordinance specifically states that its intent is to “recover the costs of operating, maintaining, replacing, and depreciating the existing water and sewer systems and any extensions thereof,” there was nothing in the ordinance that was not authorized by the Idaho revenue bond act and court found no evidence in the record that the fees charged by the city were arbitrary or unreasonable. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

Where the proceeds of the connection fee for water and sewer service are dedicated to the water and sewer systems, those funds are kept in a separate, segregated account and are not used for general fund purposes and, further, only users of those services are charged and those fees are not utilized for general fund or for future expansion of the water and sewer system because the funds collected from connection fees by the city are specifically allocated in accordance with the Idaho revenue bond act, the fees are not collected for general revenue raising purposes and are, therefore, not taxes requiring approval of the electorate; under these circumstances a municipality may collect such fees, rates or charges pursuant to the power granted in the Idaho revenue bond act to pay for maintenance, depreciation and replacement of system components. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

Decisions Under Prior Law

Disconnection Charge.

Provisions in ordinance for charge of $1.00 for disconnection of service from municipal water and sewage systems on default in payment and charge of $1.00 for reconnection were valid since specific charges covered only the cost of disconnection and reconnection. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953).

Compiler’s Notes.

The term “this act” in paragraph (c) refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code. However, in the context of§ 50-1027, the term may mean the “revenue bond act,” codified as§§ 50-1027 to 50-1042.

CASE NOTES

Fee structure.

Maintenance, replacement and depreciation.

Ordinary and necessary expenses.

Fee Structure.

The fees, rates and charges imposed by a municipality must be reasonable and must produce sufficient revenue to support the public works project at the lowest possible cost. The law only requires that the fee be reasonably related to the benefit conveyed. Manwaring Invs., LC v. City of Blackfoot, 162 Idaho 763, 405 P.3d 22 (2017), overruled on other grounds, N. Idaho Bldg. Contrs. Ass’n v. City of Hayden, 164 Idaho 530, 432 P.3d 976 (2018).

The legislature has not imposed exacting rate requirements upon localities. The law requires only that the fee be reasonably related to the benefit conveyed. Creating a fee structure for a wastewater system whereby every member of the general public would be charged only for his or her exact contribution of waste presumably could be established, but the system would be cumbersome and perhaps prohibitively expensive to maintain. Manwaring Invs., LC v. City of Blackfoot, 162 Idaho 763, 405 P.3d 22 (2017), overruled on other grounds, N. Idaho Bldg. Contrs. Ass’n v. City of Hayden, 164 Idaho 530, 432 P.3d 976 (2018).

Maintenance, Replacement and Depreciation.

Where city, after receiving an engineering report, selected a system in which the new user buys into a portion of the current value of the water and sewer system capacity and such method attempts to determine the current value of the system and then apportion a share of the value of that system to a new user, the methodology used to determine the value of the system is not unreasonable, nor is it unreasonable to charge a new user the value of that portion of the system capacity that the new user will utilize at that point in time; and the fact the connection fee may be higher in such city than in other municipalities will not invalidate the fee as long as it is reasonable and is not primarily a source of revenue; since the ordinance specifically states that its intent is to “recover the costs of operating, maintaining, replacing, and depreciating the existing water and sewer systems and any extensions thereof,” there was nothing in the ordinance that is not authorized by the Idaho revenue bond act and the court found no evidence in the record that the fees charged by the city were arbitrary or unreasonable. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

Where the proceeds of the connection fee for water and sewer service are dedicated to the water and sewer systems, those funds are kept in a separate, segregated account and are not used for general fund purposes and, further, only users of those services are charged and those fees are not utilized for general fund or for future expansion of the water and sewer system because the funds collected from connection fees by the city are specifically allocated in accordance with the Idaho revenue bond act, the fees are not collected for general revenue raising purposes and are, therefore, not taxes requiring approval of the electorate; under these circumstances a municipality may collect fees, rates or charges pursuant to the power granted in the Idaho revenue bond act to pay for maintenance, depreciation and replacement of system components. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

Ordinary and Necessary Expenses.

Because subsection (b) of this section allows the collection of revenues sufficient to cover certain costs, city under contract to treat other city’s wastewater did not violate the revenue bond act by charging a rate of return for wastewater treatment. City of Chubbuck v. City of Pocatello, 127 Idaho 198, 899 P.2d 411 (1995). Ordinary and Necessary Expenses.

A municipality may accumulate collected revenues from rates, charges or fees to fund the cost of replacement of system components in its public works projects which are ordinary and necessary. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991).

ALR.

§ 50-1035. Ordinance prior to construction — Election.

Before any city shall construct or acquire any works or rehabilitated existing electrical generating facilities under this chapter, the council of such city shall enact an ordinance or ordinances which shall, (a) set forth a brief and general description of the works or rehabilitated existing electrical generating facilities, and if the same are to be constructed, a reference to the preliminary report or plans and specifications which shall theretofore have been prepared and filed by an engineer chosen for that purpose; (b) set forth the cost thereof estimated by the engineer chosen as aforesaid; (c) order the construction or acquisition of such works or the rehabilitation of such existing electrical generating facilities; (d) direct that revenue bonds of the city shall be issued pursuant to this chapter in such amount as may be necessary to pay the cost of the works or rehabilitated existing electrical generating facilities; and (e) contain such other provisions as may be necessary in the proposal.

Such ordinance shall be passed, approved and published as provided by law for the enactment of general ordinances, but such city shall not incur or authorize in any year any indebtedness or liability under said ordinance exceeding in that year, the income and revenue provided for it for such year, without the assent of two-thirds (2/3) of the qualified electors of such city voting at an election held for the purpose of authorizing or refusing to authorize the indebtedness or liability provided for in said ordinance; provided, that any city may, with the assent of a majority of the qualified electors voting at an election to be held for such purpose, issue revenue bonds for the purpose of providing funds to own, purchase, construct, extend or equip, within and without the corporate limits of such city, water systems, sewerage systems, water treatment plants, sewerage treatment plants, electric systems, or to rehabilitate existing electrical generating facilities, the principal and interest of which to be paid solely from the revenue derived from rates and charges for the use of, and the service rendered by such systems, plants and facilities. In accordance with section 3E, article VIII of the constitution of the state of Idaho, any political subdivision of the state or regional airport authority as defined by law, operating an airport may issue revenue bonds payable solely from fees, charges, rents, payments, grants or any other revenues derived from or relating to airport facilities and air navigation facilities to finance the costs of acquiring, constructing, installing and equipping airport facilities and air navigation facilities and such bonds shall not be secured by the full faith and credit or the taxing power of the political subdivision of the state or regional airport authority as defined by law.

Said ordinances shall provide for the holding of said election in accordance with the dates authorized in section 50-405, Idaho Code, by the county clerk in accordance with the provisions of title 34, Idaho Code. The notice of election shall set forth the purpose of said ordinance, the amount of bonds authorized by it, the maximum number of years from their respective dates for which such bonds may run, the voting places, the hours between which the polls will be open and the qualifications of voters who may vote thereat. In all other respects such election shall be conducted as are other city elections. The voting at such elections must be by ballot, and the ballots used shall be substantially as follows: “In favor of issuing revenue bonds for the purposes provided by Ordinance No. . . . . .”

“Against the issuance of revenue bonds for the purposes provided by Ordinance No. . . . . .”

If, at such election, the required vote is in favor of issuing such revenue bonds, then such city may issue such bonds and create such indebtedness or liability in the manner and for the purpose specified in said ordinance.

History.

1967, ch. 429, § 195, p. 1249; am. 1973, ch. 40, § 1, p. 75; am. 1977, ch. 50, § 6, p. 91; am. 1981, ch. 300, § 2, p. 620; am. 2009, ch. 341, § 128, p. 993; am. 2011, ch. 129, § 3, p. 358.

Cross References.

Revenue bond act,§ 50-1027 et seq.

Amendments.

The 2009 amendment, by ch. 341, in the first paragraph, twice substituted “chapter” for “act”; and rewrote the first sentence in the third paragraph, which formerly read: “Said ordinances shall provide for the holding of said election and the giving of notice thereof by publication in the official newspaper of the city, said publication to be once a week for two (2) successive weeks prior to such election.”

The 2011 amendment, by ch. 129, in the second paragraph, inserted “electric systems” near the end of the first sentence and added the last sentence.

Compiler’s Notes.

Section 2 of S.L. 1978, ch. 330 purported to amend this section. Section 3 of that act provided that the act should take effect when the amendment to Article VIII, § 3 of the Idaho Constitution which was proposed by the second regular session of the Forty-Fourth Idaho Legislature was ratified. However, the proposed constitutional amendment was defeated and, accordingly, the amendment to this section never took effect.

Effective Dates.

Section 1 of S.L. 1973, ch. 40 declared an emergency. Approved February 26, 1973.

Section 161 of S.L. 2009, ch. 341 provided that the act should take effect on and after January 1, 2011.

Requirement by Election.

Where city based connection fees charged users of water and sewer system on formula termed “equity buy-in” and city annually was required to revalue the fees pursuant to the formula and all revenue from the fees was placed in a separate account and used only for replacement of existing facilities and equipment, no moneys were placed in the general operating funds of the city and none was used for expansion or improvement of the existing system it was not necessary that a municipality have an election such as prescribed in Idaho Const., Art. VIII, § 3 prior to changing the rates, fees or charges imposed in establishing the cost of public works services such as sewer or water connection fees. Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991). Decisions Under Prior Law

Laws Controlling Elections.

Revenue bond elections were controlled by laws of the state governing municipal elections and not by laws of the state relating to general obligation bond election, since village and taxpayers were not obligated to pay revenue bonds as in the case of general obligation bonds. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953).

Cross References.

Revenue bond act,§ 50-1027 et seq.

Effective Dates.

Section 4 of S.L. 1981, ch. 300 declared an emergency. Approved April 7, 1981.

Cross References.

Municipal bond law,§ 57-201 et seq.

Compiler’s Notes.

The term “this act” in three places in subsection (a) and in the introductory paragraph in subsection (b) refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code. However, in the context of§ 50-1027, the term may mean the “revenue bond act,” codified as§§ 50-1027 to 50-1042.

Effective Dates.

Section 3 of S.L. 1978, ch. 176 declared an emergency. Approved March 20, 1978.

Procedure.

Former similar section specifically provided that revenue bonds issued under authority thereof should be sold, executed and delivered in the same manner as provided by the “municipal bond law” (§ 57-201 et seq.) and such bonds under§ 57-218 could be authorized, issued and sold either by ordinance or resolution and without a vote of the electors of the village. Adams v. Pritchard, 88 Idaho 325, 399 P.2d 252 (1965).

Decisions Under Prior Law

Appointment of Receiver.

Provision in ordinance authorizing appointment of receiver for water and sewerage system on default in payment of principal or interest of revenue bonds was authorized under former similar section. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953).

Compiler’s Notes.

The first bracketed insertion in this section was added by the compiler to correct the enacting legislation.

The second bracketed insertion was added by the compiler to conform to the statutory citation style.

Cross References.

Revenue bond act,§ 50-1027 et seq.

Amendments.

The 2011 amendment, by ch. 129, added the last sentence.

Decisions Under Prior Law

Parity of Liens.

An ordinance was not invalid on the ground that it authorized issuance in the future of a second issue of revenue bonds to enjoy complete parity of lien with bonds of first issue providing certain required conditions were fulfilled, as priority of first issue was exclusively for the benefit of the holders of the bonds under first issue and same could be waived. Schmidt v. Village of Kimberly, 74 Idaho 48, 256 P.2d 515 (1953).

Cross References.

Revenue bond act,§ 50-1027 et seq.

Compiler’s Notes.

The bracketed insertions near the beginning and near the end of the section were added by the compiler to conform to the statutory citation style.

The first bracketed insertion in the second sentence was added by the compiler to correct the enacting legislation.

Cross References.

Revenue bond act,§ 50-1027 et seq.

Compiler’s Notes.

The bracketed word “section” in the first sentence was inserted by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The term “this act” refers to S.L. 1978, Chapter 261, which is compiled as§§ 50-1043 to 50-1048.

Cross References.

General and special city elections,§ 50-405.

Amendments.

The 2013 amendment, by ch. 135, substituted “eleven (11) months” for “one (1) year” in the next-to-last sentence.

Effective Dates.

Section 14 of S.L. 2013, ch. 135 declared an emergency. Approved March 22, 2013.

Compiler’s Notes.

The term “this act” in the first sentence refers to S.L. 1978, Chapter 261, which is compiled as§§ 50-1043 to 50-1048.

Compiler’s Notes.

The term “this act” near the middle of the section refers to S.L. 1978, Chapter 261, which is compiled as§§ 50-1043 to 50-1048.

Building Materials.

The City of Sun Valley may impose its local option sales tax on building materials sales made in the city.OAG 91-6.

Ski Lift Tickets.

A vendor who sells a ski lift ticket from a location within the city limits of the City of Sun Valley has a responsibility to collect city local option sales tax from the purchaser of the ticket; the tax thus collected must be remitted to the City of Sun Valley in the manner provided in the city’s municipal sales tax ordinance.OAG 91-6.

Cross References.

State board of tax appeals,§ 63-3801 et seq.

State tax commission,§ 63-101.

Compiler’s Notes.

The term “this act” throughout this section refers to S.L. 1978, Chapter 261, which is compiled as§§ 50-1043 to 50-1048.

Effective Dates.

Section 241 of S.L. 1994, ch. 180 provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the name of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since the amendment was adopted, the amendment to this section by § 92 of S.L. 1994, ch. 180 became effective January 2, 1995.

Compiler’s Notes.

“Provisions ruled invalid. —

Effective Dates.

Section 8 of S.L. 1978, ch. 261 provided that the act should take effect July 1, 1978.

Cross References.

State controller,§ 67-1001 et seq.

State refund account,§ 63-3067.

State tax commission,§ 63-101.

Effective Dates.

Section 241 of S.L. 1994, ch. 180, provided that such act should become effective on and after the first Monday in January, 1995 [January 2, 1995] if the amendment to the Constitution of Idaho changing the name of the state auditor to state controller [1994 S.J.R. No. 109, p. 1493] was adopted at the general election held on November 8, 1994. Since such amendment was adopted, the amendment to this section by § 93 of S.L. 1994, ch. 180 became effective January 2, 1995.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49, of title 50.

Compiler’s Notes.

These sections, which comprised S.L. 1967, ch. 429,§§ 203-208, p. 1249, were repealed by S.L. 1975, ch. 188, § 1, effective July 1, 1975. For present comparable law, see§ 67-6501 et seq.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49, of title 50.

Compiler’s Notes.

These sections, which comprised S.L. 1967, ch. 429,§§ 209-218, p. 1249, were repealed by S.L. 1975, ch. 188, § 1, effective July 1, 1975. For present comparable law, see§ 67-6501 et seq.

Cross References.

Department of environmental quality,§ 39-104.

Highway distribution account,§ 40-701.

Idaho transportation department,§ 40-501 et seq.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49, of title 50.

Amendments.

The 2010 amendment, by ch. 256, added subsection (1) and redesignated the subsequent subsections accordingly; and in subsection (14), inserted “and welfare” following “state board of health”.

The 2011 amendment, by ch. 136, added subsection (5) and redesignated the subsequent subsections accordingly; in subsection (14), substituted “Reference point” for “Reference monument,” “special monumented point” for “special monument” and “and where the spatial relationship to the corner is known and recorded and that serves to locate the corner” for “but whose spatial relationship to the corner is known and recorded and which serves to witness the corner”; in subsection (17), substituted “this definition” for “the above definition” at the end; and, in subsection (18), deleted “usually” following “monumented point.” The 2014 amendment, by ch. 58, substituted “director of the department of environmental quality” for “state board of health and welfare by its administrator” in subsection (15).

The 2017 amendment, by ch. 86, inserted “two (2) monumented” preceding “corners” in subsection (1).

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

The U.S. general land office, referred to in subsection (11), was merged with the United State grazing service to become the bureau of land management in 1946. For more information on the bureau of land management, also referred to in subsection (11), see https://www.blm.gov/ .

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Section 2 of S.L. 1970, ch. 184 declared an emergency. Approved March 13, 1970.

Naming and Numbering Streets.

Since the purposes of the local planning act (§ 67-6501 et seq.) and the duties of those charged with its administration are closely related to the planning and zoning functions that have long been the domain of cities and counties, since of necessity these functions transcend the boundaries of local special purpose districts, since§ 40-501 was amended to add to the duties of the county commissioners the duty to rename streets and highways within the county by proper ordinance, since§§ 50-1301 — 50-1329 governing the filing of subdivision plats provide that all plats must be presented to the proper governing body of a city and/or county for approval and each plat must show all the streets and have them named, since nothing in the planning act suggests a legislative intent for the planning and standard setting of the act in respect to highways to flow to highway districts by reason of the language of§ 40-1611 and since§ 67-6501 et seq. were enacted after§§ 40-1611 and 40-1615, the local planning act gives a county the authority to set standards for street naming and address numbering within the boundaries of a local highway district. Worley Hwy. Dist. v. Kootenai County, 104 Idaho 833, 663 P.2d 1135 (Ct. App. 1983).

Subdivision.

County planning and zoning commission was not required to approve landowner’s plot where plot was divided into three lots and met neither statutory requirements nor county requirements for a subdivision. Tranmer v. Helmer, 126 Idaho 88, 878 P.2d 787 (1994).

Amendments.

The 2011 amendment, by ch. 136, substituted “as defined in section 50-1301, Idaho Code” for “as defined above” and “a land survey and a plat thereof to be made” for “the same to be surveyed and a plat made thereof.”

Intention to Dedicate.

In an action for a declaration that a road in a subdivision was private, the trial court properly struck an affidavit by the engineer who prepared the subdivision plat as inadmissible parol evidence; the affidavit was introduced to vary the terms of an unambiguous instrument, the subdivision plat. Kepler-Fleenor v. Fremont County, 152 Idaho 207, 268 P.3d 1159 (2012).

Decisions Under Prior Law

Description of property in dispute.

Evidence.

Intention to dedicate.

Unopened streets.

Description of Property in Dispute.

In an action to resolve a boundary dispute, the descriptions of both parties’ properties was by the lot numbers designated on the plat of the addition as authorized by former section governing filing of plats. Nutterville v. McLam, 84 Idaho 36, 367 P.2d 576 (1961).

Evidence.

The admission of the testimony of an engineer and the plat prepared by him was improper without a foundation first being laid that he was actually ascertaining the original lines of the original plat or without a prior determination that the monuments of the original plat had been lost and could not be reestablished. Nutterville v. McLam, 84 Idaho 36, 367 P.2d 576 (1961).

Intention to Dedicate.

First essential of a dedication was intention of owner of land to dedicate it, and such intention was usually shown by plat filed. Contrary intention could not be shown by something hidden in mind of landowner. Hanson v. Proffer, 23 Idaho 705, 132 P. 573 (1913).

Unopened Streets.

There could be dedicated to public, land for street purposes which was not at time of dedication in condition to be traveled by public. Hanson v. Proffer, 23 Idaho 705, 132 P. 573 (1913).

Amendments.

The 2008 amendment, by ch. 378, rewrote the section to the extent that a detailed comparison is impracticable.

The 2011 amendment, by ch. 136, in the section heading, deleted “Stakes and” preceding “Monuments”; in the first sentence, twice substituted “reference points” for “reference monuments”; rewrote the second sentence, which read: “Monuments shall be plainly and permanently marked such that measurements may be taken to the marks within one-tenth (1/10) of a foot”; and, in the last sentence, inserted “each are bounded by property lines within the survey of” and substituted “not more than one” for “not less than one part.”

Cross References.

Idaho coordinate system,§ 55-1705.

Amendments.

The 2010 amendment, by ch. 256, added the subsection (1) and (2) designations and subsection (3).

The 2015 amendment, by ch. 48, rewrote the first four sentences in subsection (1), which formerly read: “All plats offered for record in any county shall be prepared in black opaque image upon stable base drafting film with a minimum base thickness of 0.003 inches, by either a photographic process using a silver image emulsion or by use of a black opaque drafting film ink, by mechanical or handwritten means. The drafting film and image thereon shall be waterproof, tear resistant, flexible, and capable of withstanding repeated handling, as well as providing archival permanence. If ink is used on drafting film, the ink surface shall be coated with a suitable substance to assure permanent legibility. The drafting film must be of a type which can be reproduced by either a photographic or diazo process”; and, in subsection (2)(i), inserted “bearing and length of lines, graphic scale of plat and north arrow”.

The 2019 amendment, by ch. 58, added “and (k) narrative as described in section 55-1906, Idaho Code” at the end of subsection (2).

Compiler’s Notes.

For more on the national spatial reference system, referred to in subsection (3), see https://www.ngs.noaa.gov/INFO/OnePagers/NSRSOnePager.pdf .

Effective Dates.

Section 2 of S.L. 1999, ch. 391 declared an emergency. Approved March 29, 1999.

In General.

This section defines the respective jurisdictions of a city and a county that share contiguous boundaries but have not acted to create an area of impact, by outlining an approval procedure to be followed when a subdivision is located within one mile of the city limits. Blaha v. Board of Ada County Comm’rs, 134 Idaho 770, 9 P.3d 1236 (2000).

Amendments.

This section was amended by two 2014 acts which appear to be compatible and have been compiled together.

The 2014 amendment, by ch. 137, substituted “as provided in section 40-203, Idaho Code” for “as provided in subsection (4) of this section” at the end of subsection (6).

The 2014 amendment, by ch. 21, in subsection (1), deleted “which is inside or within one (1) mile of the boundaries of any city” preceding “must petition” and substituted “if it is located within the boundaries of a city, or the county commissioners if it is located within the unincorporated area of the county” for “to vacate” in the first sentence; rewrote subsection (4), which formerly read: “When the platted area lies more than one (1) mile beyond the city limits, the procedures set forth herein shall be followed with the county commissioners of the county wherein the property lies. The county commissioners shall have authority, comparable to the city council, to grant the vacation, provided, however, when the platted area lies beyond one (1) mile of the city limits, but adjacent to a platted area within one (1) mile of the city, consent of the city council of the affected city shall be necessary in granting any vacation by the county commissioners”; and deleted “as provided in subsection (4) of this section” at the end of subsection (6).

Effective Dates.

Section 2 of S.L. 1981, ch. 304 declared an emergency and provided that the act should be in full force and effect on and after approval and retroactively to January 1, 1981. Approved April 7, 1981.

Acceptance of Plat.

While§ 40-1611 appears to grant highway districts exclusive jurisdiction over highways within their districts, it does not give them the power or duty to accept subdivision plats; under the code as it existed when subdivision was created (1973), the county clearly had the authority to accept and approve the plat and the direct effect of that acceptance thoroughfare was to dedicate it to the public use. Harshbarger v. County of Jerome, 107 Idaho 805, 693 P.2d 451 (1984).

Approval Denied.

County planning and zoning commission was not required to approve landowner’s plot where plot was divided into three lots and met neither statutory requirements nor county requirements for a subdivision. Tranmer v. Helmer, 126 Idaho 88, 878 P.2d 787 (1994).

Subdivision Application.

The power to approve a subdivision application in the impact area resides exclusively with the county, and the city’s action in reviewing the subdivision application is advisory only and is not a prerequisite to action by the county. Blaha v. Board of Ada County Comm’rs, 134 Idaho 770, 9 P.3d 1236 (2000).

Effective Dates.

Section 3 of S.L. 1988, ch. 175 declared an emergency. Approved March 26, 1988.

Dedication of Streets.

Sales of lots by reference to lot and block following recording of a plat constitutes a dedication of the streets and alleys to public use. Boise City ex rel. Amyx v. Fails, 94 Idaho 840, 499 P.2d 326 (1972).

Where the plat of a subdivision, which was compulsorily recorded by a developer, depicts no public streets or rights-of-way, there can be no statutory dedication of the roads. Lattin v. Adams County, 149 Idaho 497, 236 P.3d 1257 (2010).

Owner.

When an owner of land plats the land, files the plat for record, and sells lots by reference to the recorded plat, a dedication of public areas indicated by the plat is accomplished. However, just filing the plat is not enough: public dedication also requires that the plat show the owners’ intent clearly and explicitly. Rowley v. Ada County Highway Dist., 156 Idaho 275, 322 P.3d 1008 (2014). Owner.

Leasehold interests are not included within the meaning of “owner” under this section. Allen v. Blaine County, 131 Idaho 138, 953 P.2d 578 (1998).

Landowners were not entitled to an interest in a plat’s common area because the plat was void: (1) although non-owners executed the plat, owners did not ratify the plat, so the plat granted no interest, and (2) platted land could not be dedicated by common law to owners of unplatted land. Armand v. Opportunity Mgmt. Co., 155 Idaho 592, 315 P.3d 245 (2013).

Public Roads.

In a quiet title action in which residents of subdivision sought to enjoin defendant from using two roads for access to his residence, defendant did not show that road and 60-foot easement he used to gain access to his property were public access roads, nor were the requirements under this section and§ 50-1313 for the creation of a public road met. Stafford v. Klosterman, 134 Idaho 205, 998 P.2d 1118 (2000).

Decisions Under Prior Law

Failure of title.

Spasmodic travel.

Failure of Title.

Alleged public street designated as such on a recorded plat was not a public street by dedication where strip of land designated as public street was not owned by the party recording the plat at the time the plat was filed. Worthington v. Koss, 72 Idaho 132, 237 P.2d 1050 (1951).

Spasmodic Travel.

Strip of land did not become a public street by use where evidence showed only a small portion of strip used for spasmodic travel for period of two years and the presence of bush, trees, and fence on strip for long period of time. Worthington v. Koss, 72 Idaho 132, 237 P.2d 1050 (1951).

Amendments.

The 2013 amendment, by ch. 263, added the subsection designations; and, in subsection (2), inserted “or a process by which a copy is produced using a copy machine or by digital scanning and reproduction using black opaque drafting film ink” in the third sentence and inserted the fourth sentence.

The 2015 amendment, by ch. 48, in subsection (2), substituted the present second sentence for the former second, third, and fourth sentences, which read: “The copy shall be upon stable base drafting film with a minimum base thickness of 0.003 inches. The image thereon shall be by a photographic process using a silver image emulsion, or a process by which a copy is produced using a copy machine or by digital scanning and reproduction using black opaque drafting film ink. If a copy machine or ink is used, the surface shall be coated with a suitable substance to assure permanent legibility. The copy and image thereon shall be waterproof, tear-resistant, flexible, and capable of withstanding repeated handling, as well as providing archival permanence.”

Effective Dates.

Section 2 of S.L. 2013, ch. 263 declared an emergency. Approved April 3, 2013.

Cross References.

Recording surveys,§§ 55-1901 et seq.

Acceptance of Plats.

While§ 40-1611 appears to grant highway districts exclusive jurisdiction over highways within their districts, it does not give them the power or duty to accept subdivision plats; under the code as it existed when subdivision was created (1973), the county clearly had the authority to accept and approve the plat and the direct effect of that acceptance thoroughfare was to dedicate it to the public use. Harshbarger v. County of Jerome, 107 Idaho 805, 693 P.2d 451 (1984).

Dedication of Streets and Alleys.

Sales of lots by reference to lot and block following recording of a plat constitutes a dedication of the streets and alleys to public use. Boise City ex rel. Amyx v. Fails, 94 Idaho 840, 499 P.2d 326 (1972).

The recording of the plat which referenced the segments of land at issue constituted a dedication of public roadway easements, through the segments, which the original developer had been permitted to delay improving until a later date. In addition, the language of this section makes it clear that the recording of a plat denominating a public street transfers an interest equivalent to a fee simple. Volco, Inc. v. Lickley, 126 Idaho 709, 889 P.2d 1099 (1995). District court’s finding that a boundary by agreement existed was not clearly erroneous because a fence had been standing between two properties for more than 50 years; moreover, the parties involved were adjoining landowners, despite being separated by a dedicated road, because the parties had an ownership interest up to the center of the dedicated street. Neider v. Shaw, 138 Idaho 503, 65 P.3d 525 (2003).

When an owner of land plats the land, files the plat for record, and sells lots by reference to the recorded plat, a dedication of public areas indicated by the plat is accomplished. However, just filing the plat is not enough: public dedication also requires that the plat show the owners’ intent clearly and explicitly. Rowley v. Ada County Highway Dist., 156 Idaho 275, 322 P.3d 1008 (2014).

Land Survey.

The recording of a subdivision plat is intended to partition property and creates legally-recognized lots within the subdivision. A land survey does not subdivide land, nor does the filing of such a survey indicate with what intent the landowner surveyed his property. State v. Bilbao, 130 Idaho 500, 943 P.2d 926 (1997).

Magistrate erred in dismissing complaint against defendant for misdemeanor illegal subdivision, after concluding the statute of limitations had run because the allegedly illegal subdivision occurred in 1985 with the filing of a land survey. The record before the magistrate did not support his conclusion that the allegedly criminal act occurred in 1985, and not later, because the document filed by defendant in 1985 was a land survey, which does not subdivide land, and not a plat. State v. Bilbao, 130 Idaho 500, 943 P.2d 926 (1997).

Statutory Scheme Governing Dedication.

The statutory scheme governing the dedication of real property to the public involves two steps, the first of which is an offer by the owner to “dedicate” the property to the public, and the second of which is an acceptance of such offer by the public; the offer to dedicate is evidenced by the acknowledgement and recording of a plat under this section, and the acceptance by action of a public body “accepting” and “confirming” the “dedication,” as required by§ 50-1313. Worley Hwy. Dist. v. Yacht Club of Coeur d’Alene, Ltd., 116 Idaho 219, 775 P.2d 111 (1989).

Decisions Under Prior Law

Completion of dedication.

Effect of dedication.

Title of municipality.

Validation of dedication.

Completion of Dedication.

Dedication was completed when plat was filed in proper office and lots sold with reference to it. Hanson v. Proffer, 23 Idaho 705, 132 P. 573 (1913).

Effect of Dedication.

By dedication of plat, public acquired only an estate necessary to adequate accommodation of public, consisting of an easement for free and unobstructed use of street and not a title in fee simple. Shaw v. Johnston, 17 Idaho 676, 107 P. 399 (1910). By filing of a plat and selling of lots with reference thereto, dedicator and grantor was estopped from revoking dedication of any streets marked thereon. Hanson v. Proffer, 23 Idaho 705, 132 P. 573 (1913).

Where owner of land plats streets and blocks, dedicating streets to public, and plat shows a strip of sand beach between platted streets, etc., and an abutting lake, beach was not dedicated. Deffenbaugh v. Washington Water Power Co., 24 Idaho 514, 135 P. 247 (1913).

While property owners, abutting on street which predecessors in title had dedicated to city or state for use as such, owned fee of land to center of street, the city or state had a complete right to use of such land for street purposes. Powell v. McKelvey, 56 Idaho 291, 53 P.2d 626 (1935).

Title of Municipality.

Effect of recording plat was to vest in city determinable fee for public use of surface of street. Mochel v. Cleveland, 51 Idaho 468, 5 P.2d 549 (1930).

Where portion of street was vacated in recorded plat, city could not convey fee therein to owner of abutting land not in plat. Mochel v. Cleveland, 51 Idaho 468, 5 P.2d 549 (1930).

Validation of Dedication.

A statute validating existing plats and a statute providing that an acknowledgment and recording of plats was equivalent to a deed in fee simple of such portion of premises platted as were set apart for streets or other public use impressed upon the plat theretofore filed a dedication to the public of streets outlined in such plat with the same effect as though dedication had been originally placed upon such plat. Powell v. McKelvey, 56 Idaho 291, 53 P.2d 626 (1935).

Cross References.

Recordation and dedication of highways,§ 40-2302.

Effective Dates.

Section 3 of S.L. 1978, ch. 78 declared an emergency. Approved March 10, 1978.

Creation of Public Road.

In a quiet title action in which plaintiffs, residents of subdivision, sought to enjoin defendant from using two roads for access to his residence, defendant did not show that road and 60-foot easement he used to gain access to his property were public access roads, nor were the requirements under this section and§ 50-1309 for the creation of a public road met. Stafford v. Klosterman, 134 Idaho 205, 998 P.2d 1118 (2000).

Statutory Scheme Governing Dedication.

The statutory scheme governing the dedication of real property to the public involves two steps, the first of which is an offer by the owner to “dedicate” the property to the public, and the second of which is an acceptance of such offer by the public; the offer to dedicate is evidenced by the acknowledgement and recording of a plat under§ 50-1312, and the acceptance by action of a public body “accepting” and “confirming” the “dedication,” as required by this section. Worley Hwy. Dist. v. Yacht Club of Coeur d’Alene, Ltd., 116 Idaho 219, 775 P.2d 111 (1989).

Liability From Five-Year Use.

Where a street had been used by the public and worked by the city for at least five years, the city, by reason of the implied invitation to the public to use it as a street, became liable for injury to a traveler from obstruction negligently placed therein. Gallup v. Bliss, 44 Idaho 756, 262 P. 154 (1927).

Private Driveways.

Private driveways used by public within municipality were subject to municipal regulation for safety of public, whether dedicated or accepted by ordinance. Crossler v. Safeway Stores, 51 Idaho 413, 6 P.2d 151 (1931).

Spasmodic Travel.

Strip of land did not become a public street by use where evidence showed only a small portion of strip used for spasmodic travel for period of two years and the presence of bush, trees, and fence on strip for long period of time. Worthington v. Koss, 72 Idaho 132, 237 P.2d 1050 (1951).

Title Defective.

Alleged public street designated as such on a recorded plat was not a public street by dedication where strip of land designated as public street was not owned by the party recording the plat at the time the plat was filed. Worthington v. Koss, 72 Idaho 132, 237 P.2d 1050 (1951).

Amendments.

The 2011 amendment, by ch. 120, in the first sentence in the first paragraph, substituted “as provided in sections 50-1301 through 50-1313, Idaho Code, the county recorder, when instructed by the board of county commissioners” for “as provided in the thirteen (13) foregoing sections of this act, the county recorded”; and, in the last paragraph, inserted “may be billed to the property owner and, if not paid as requested” and substituted “property taxes, and shall go to the county current expenses fund” for “general taxes, and shall go to the general county fund.”

Estoppel.

The mortgagor was estopped from arguing that the replat of the property was invalid because it did not contain the owners’ signatures, and was not prepared and filed in accordance with this section, where the mortgagor was responsible for getting the replat properly recorded, acquiesced in the recording procedure and accepted the benefit of the increased saleability, and only challenged its validity when default on the purchase agreement was imminent. Williams Lake Lands, Inc. v. LeMoyne Dev., Inc., 108 Idaho 826, 702 P.2d 864 (Ct. App. 1985).

Merger.

Where the federal survey system did not constitute a legal subdivision of property, the trial judge did not err in finding that three separate parcels had merged into a single parcel of land, that the presence of two roads on the property did not render the property non-contiguous, and that plaintiff’s property constituted an unplatted, contiguous tract of land that was subject to defendant county’s subdivision ordinance. Robbins v. County of Blaine, 134 Idaho 113, 996 P.2d 813 (2000).

Statutory Scheme Governing Dedication.

The statutory scheme governing the dedication of real property to the public involves two steps, the first of which is an offer by the owner to “dedicate” the property to the public, and the second of which is an acceptance of such offer by the public; the offer to dedicate is evidenced by the acknowledgement and recording of a plat under§ 50-1312, and the acceptance by action of a public body “accepting” and “confirming” the “dedication,” as required by§ 50-1313. Worley Hwy. Dist. v. Yacht Club of Coeur d’Alene, Ltd., 116 Idaho 219, 775 P.2d 111 (1989).

Cited Williams Lake Lands, Inc. v. LeMoyne Dev., Inc., 108 Idaho 826, 702 P.2d 864 (Ct. App. 1985). Decisions Under Prior Law

Validation of Dedication by Validation of Plat.

A statute validating existing plats and a statute providing that an acknowledgment and recording of plats was equivalent to a deed in fee simple of such portion of premises platted as were set apart for streets or other public use impresses upon the plat theretofore filed a dedication to the public of streets outlined in such plat with the same effect as though dedication had been originally placed upon such plat. Powell v. McKelvey, 56 Idaho 291, 53 P.2d 626 (1935).

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Contracts Not Invalidated.

The legislature did not intend for this section to invalidate contracts for the sale of realty because of the vendor’s failure to record the plat to lots or portions thereof sold or offered for sale; the language of the section does not prohibit the act of selling lots of an unrecorded plat nor does it mandate that the vendor must record the plat prior to contracting for the sale of the realty, but rather only mandates the forfeiture of a set sum if the vendor contracts for the sale of the realty without first acknowledging and recording the plat. Cox v. Mountain Vistas, Inc., 102 Idaho 714, 639 P.2d 12 (1981).

An agreement to develop property was not void merely because the final plat of the property was not recorded at the time the agreement was executed. This section does not prohibit the sale of lots of an unrecorded plat, nor does this section mandate that the vendor must record the plat prior to contracting for development of the property. Gugino v. Kastera, LLC (In re Ricks), 433 B.R. 806 (Bankr. D. Idaho 2010).

Amendments.

The 2014 amendment, by ch. 137, near the beginning of the section, deleted “if unincorporated, or which” preceding “if incorporated”, “or interested in any platted and subdivided tract or acreage outside the limits of any incorporated city” preceding “may desire to vacate”, and “public street, public right-of-way” preceding “private road”; and rewrote the next-to-last sentence, which formerly read: “Provided, however, when a public street or public right-of-way is located within the boundary of a highway district, the commissioners of the highway district shall assume the authority to vacate said public street or public right-of-way”.

Decisions Under Prior Law

Method Exclusive.

Design and object of those who plat tracts of land was that streets and alleys so platted were intended to give increased value to adjacent lots, and dedication of such streets and alleys to public use cannot be withdrawn at whim or caprice of person who dedicates them, or his grantees. Boise City v. Hon, 14 Idaho 272, 94 P. 167 (1908).

When dedication of street was made by filing plat in proper office and selling lots with reference to it, only way title to said land can revert was by having same vacated in manner provided by law. Hanson v. Proffer, 23 Idaho 705, 132 P. 573 (1913).

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Amendments.

The 2014 amendment, by ch. 21, rewrote the last sentence, which formerly read: “Any vacation of lands within one (1) mile of a city shall require notification and consent of the city”.

The 2015 amendment, by ch. 244, substituted “right-of-way” for “right of way” throughout the section.

Compiler’s Notes.

The versions of sections 31-1510 and 31-1511, referred to near the end of this section, were repealed by S.L. 1993, ch. 103, § 1, effective July 1, 1993. Section 31-1515, referred to at the end of the section, was repealed by S.L. 1995, ch. 61, § 5, effective January 1, 1995.

Compiler’s Notes.

The phrase “the effective date of this act” near the middle of the section refers to the effective date of S.L. 1967, Chapter 429, which was effective April 12, 1967.

Cross References.

Powers and duties of director of department of environmental quality,§ 39-105.

Sufficiency of Evidence.

Approval of subdivision plats by the department of health and the board of county commissioners combined with testimony before the district court as to the care taken in the planning of the subdivision provided the evidence necessary to a finding approving the subdivision plats, notwithstanding failure of the commissioners to obtain a geological survey to determine the potential for pollution of ground water by the proposed sewer systems. Brown v. Schafer, 96 Idaho 599, 532 P.2d 941 (1975).

Cross References.

Powers and duties of director of department of environmental quality,§ 39-105.

Amendments.

This section was amended by two 1989 acts which appear to be compatible and have been compiled together.

The 1989 amendment, by ch. 102, substituted “50-1326” for “15-1326” in the first sentence.

The 1989 amendment, by ch. 233, in the first sentence added “approval from” following “the certificate of” and substituted “director of the department of health and welfare” for “state board of health” preceding “as required in section 50-1326.”

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler, as following the amendment of§ 39-107 by S.L. 2000, chapter 182, the reference in the first sentence in this section should be to§ 39-107(7), Idaho Code.

Cross References.

Powers and duties of director of department of environmental quality,§ 39-105.

Punishment for misdemeanor where not provided,§ 18-113.

Effective Dates.

Section 6 of S.L. 1971, ch. 329, provided that the act should be in full force and effect on and after July 1, 1971.

Functioning Street Department.

Where the district court specifically found the city did not have a functioning street department, the highway district had exclusive general supervisory authority to maintain the streets within the highway district. City of Sandpoint v. Sandpoint Indep. Hwy. Dist., 126 Idaho 145, 879 P.2d 1078 (1994).

If a city does not follow the procedures set forth for altering a highway district, it does not obtain jurisdiction over streets located inside of the district; therefore, a district court erred by granting a city’s motion for partial summary judgment in a case where the city sought to obtain jurisdiction over streets in a highway district by merely establishing a functioning street department. City of Sandpoint v. Sandpoint Indep. Highway Dist., 139 Idaho 65, 72 P.3d 905 (2003).

Legislative Intent.

Power to Vacate Streets.

Since this section was added to the Idaho Code in 1983, and§ 40-1323 was added in 1985, the legislature must have intended to preserve the incorporated city’s ability to levy taxes and intended to preserve the city’s ability to maintain streets within its city limits and to allow a city to exercise this authority only if it has a functioning street department. To interpret it otherwise would effectively make the provisions of this section regarding incorporated cities with functioning street departments a nullity. City of Sandpoint v. Sandpoint Indep. Hwy. Dist., 126 Idaho 145, 879 P.2d 1078 (1994). Power to Vacate Streets.

Under this section, a highway district had exclusive power to vacate streets within its boundaries where the city did not have a functioning street department. City of Sandpoint v. Sandpoint Indep. Hwy. Dist., 126 Idaho 145, 879 P.2d 1078 (1994).

Amendments.

The 2011 amendment, by ch. 136, twice substituted “reference point” for “reference monument” in subsection (4).

The 2012 amendment, by ch. 25, inserted “professional land” in the last sentence of subsection (1) and twice in subsection (2); in subsection (3), substituted “inability, refusal or failure” for “death, disability or retirement from practice of the surveyor charged with the responsibility for setting interior monuments for a subdivision or upon the failure”, substituted “the interior monuments for a subdivision” for “such monuments”, and added the last sentence; and added the last sentence in subsection (4).

Cross References.

Public utilities commission,§ 61-201 et seq.

Punishment for misdemeanor where not provided,§ 18-113.

Cross References.

Oil and gas leases,§ 47-1401 et seq.

Transfer of property to other units of government,§§ 67-2322 to 67-2325.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49 of tit. 50.

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Decisions Under Prior Law

Construction.

Estoppel.

Construction.

Statutory regulations providing for transfer of title to land held by city for building purposes did not prohibit a transfer, but only set forth method and manner necessary for a conveyance. Lloyd Crystal Post No. 20 v. Jefferson County, 72 Idaho 158, 237 P.2d 348 (1951).

Estoppel.

City was estopped from asserting title to premises conveyed by quitclaim deed to legion post after resolution by city council, even though no ordinance was passed or election held, if legion post spent large sums in maintaining and improving premises. Lloyd Crystal Post No. 20 v. Jefferson County, 72 Idaho 158, 237 P.2d 348 (1951). Estoppel did not apply to municipality if conveyance of title was prohibited, but it did apply, if municipality was allowed to convey title, even though certain statutory requirements for passing title were not met. Lloyd Crystal Post No. 20 v. Jefferson County, 72 Idaho 158, 237 P.2d 348 (1951).

Prior Laws.

Former§ 50-1403, which comprised 1967, ch. 429, § 246, p. 1249; am. 1967 (1st E. S.), ch. 10, § 1, p. 36, was repealed by S.L. 2001, ch. 331, § 3.

City Streets.

Under Idaho law, a city has no authority to convey a portion of a city street. In Idaho, city streets from side to side and end to end belong to the public and are held by the municipality in trust for the use of the public. In the absence of a statute expressly permitting it to do so, a city may not make a valid contract permanently alienating a part of a city street or permitting a permanent encroachment and obstruction thereon, limiting the use of the street by the public. Infanger v. City of Salmon, 137 Idaho 45, 44 P.3d 1100 (2002).

Prior Laws.

Former§ 50-1404, which comprised 1967, ch. 429, § 247, p. 1249; am. 1973, ch. 60, § 1, p. 101, was repealed by S.L. 2001, ch. 331, § 3.

Prior Laws.

Former§ 50-1405, which comprised 1967, ch. 429, § 248, p. 1249; am. 1971, ch. 53, § 1, p. 125; am. 1973, ch. 76, § 1, p. 121; am. 1991, ch. 152, § 1, p. 361, was repealed by S.L. 2001, ch. 331, § 3.

Prior Laws.

Former§ 50-1406, which comprised 1967, ch. 429, § 249, p. 1249, was repealed by S.L. 2001, ch. 331, § 3.

Prior Laws.

Former§ 50-1407, which comprised 1967, ch. 429, § 250, p. 1249, was repealed by S.L. 2001, ch. 331, § 3.

Compiler’s Notes.

The bracketed insertion in the second sentence was added by the compiler to conform to the statutory citation style.

Passage of Resolution.

Power Discretionary.

The clerk of the city council testified that a motion authorizing the lease of former hospital to state for use as correctional facility was presented at the December 20, 1989, meeting of the city council and that the city council took a final vote at that time. The trial court concluded that the oral motion made and passed by the city council amounted, in substance, to a “resolution” within the meaning of§ 50-902 prior to execution of the lease. The trial court did not abuse its discretion in admitting the copy of the resolution into evidence. Foster v. City of St. Anthony, 122 Idaho 883, 841 P.2d 413 (1992). Power Discretionary.

This section permits a municipality to lease city property “not needed for city purposes, upon such terms as may be just and equitable”; this power to lease is a purely discretionary function entrusted to the elected officials of the municipality and, absent a clear abuse of that discretion, any decision made thereunder will not be overturned on appeal. Bopp v. City of Sandpoint, 110 Idaho 488, 716 P.2d 1260 (1986).

Property Not Needed for City Purposes.

Lease between telephone and telegraph company and the city of property being used for city hall and police station to telephone company was valid, and this section which authorizes “the lease of any property not needed for city purposes” does not prohibit a city council by resolution from determining that the leased property was not needed for city purposes in the present or future and was subject to city’s right of occupation during transitional period prior to obtaining new premises. Mountain States Tel. & Tel. Co. v. City of Boise, 95 Idaho 264, 506 P.2d 832 (1973).

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49 of tit. 50.

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Compiler’s Notes.

Section 1 of S.L. 1969, ch. 250 amended this section to read as follows: “The following are definitions of terms used in sections 50-1501 through 50-1524:

“(a) ‘Paid policeman’ means any individual who is on the payroll of any city in the state of Idaho and who devotes his or her principal time of employment to the care, operation or maintenance of a regularly constituted police department of such city; “(b) ‘Industrial accident board’ means the board as authorized and created under the provisions of chapter 5 of title 72, or as the same may be hereafter amended;

“(c) ‘Workmen’s Compensation Law’ means the Workmen’s Compensation Law as authorized and created under title 72, or as the same may hereafter be amended;

“(d) ‘Twenty years active service’ — an individual whose principal means of livelihood for the period of twenty years has been through employment by a city in a regularly constituted police department, and has actually been carried on the payroll for twenty years;

“(e) ‘Five years continuous service, ten years continuous service, fifteen years continuous service’ — an individual who has been employed by a regularly constituted police department for a period of five years, ten years, or fifteen years continuously, without having engaged in any other gainful occupation;

“(f) ‘Leave of absence’ means a period of time which a paid policeman shall have been out of the service of said police department of the city of which he was a member, and who, for that like period of time was off the payrolls thereof;

“(g) ‘Mandatory retirement at age sixty-five’ — retirement to become mandatory when age of sixty-five years has been reached;

“(h) The meaning of the term ‘incapacitated in a degree which prohibits efficient service’ means that degree of mental or physical disability which prohibits the efficient performance of the duties of a paid policeman during any occasion when his said services as a policeman shall be necessary;

“(i) ‘Twenty years of accumulated service’ — an individual who has been employed by a regularly constituted police department without having engaged in any other gainful occupation and has (been) had twenty years of accumulated service with the same police department and has been carried on the payrolls of such department for that period of accumulated time.”

However, chapter 250 is probably invalid. Such chapter, which was Senate Bill 1178, was passed by the senate as set out above. The bill in the house was amended by striking out the amendment to the section in its entirety. The bill was then returned to the senate but was not submitted to the senate for the approval of the amendments. The bill, without such amendments, was then enrolled and sent to the governor for signature.

Pursuant to§ 72-502, references to the “industrial accident board” and “board” are deemed to be references to the “industrial commission.”

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Constitutionality.

In disbursing the retirement fund to the beneficiaries, as provided in this section, the commissioners are not discharging an unconstitutional liability of the city to a private association, but are disbursing public funds from a public trust for a public purpose, i.e., compensation of faithful public servants for services rendered over the years. Hanson v. City of Idaho Falls, 92 Idaho 512, 446 P.2d 634 (1968).

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Decisions Under Prior Law

Form of Action.

Where the board denied the application of one under disability retirement for permanent retirement on the ground that, having previously been retired, the enactment of§ 50-2116(i) [now§ 50-1516(h)] did not affect his rights, his action for declaratory judgment was the proper form of action. Engen v. James, 92 Idaho 690, 448 P.2d 977 (1969).

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Cross References.

Deductions from wages for pension funds,§ 50-1016.

Amendments.

This section was amended by two 1996 acts which appear to be compatible and have been compiled together.

The 1996 amendments, by ch. 208, and ch. 322, both deleted the second sentence of this section which read: “The levy, as authorized herein, shall be exempt from the provisions of section 63-2220, Idaho Code.”

Effective Dates.

Section 22 of S.L. 1996, ch. 208 declared an emergency and provided that this section should be in effect July 1, 1996. Approved March 12, 1996.

Compiler’s Notes.

Section 2 of S.L. 1969, ch. 250, also purported to amend this section, but, since it was passed by the House in a different version than was passed by the Senate, it was deemed invalid.

Effective Dates.

Section 2 of S.L. 1973, ch. 103 declared an emergency. Approved March 27, 1974.

Decisions Under Prior Law

Disability Retirement.

The requirements for retirement under former similar section did not preclude the eligibility for retirement of those who complied with the requirements of§ 50-2116(i) [now§ 50-1516(h)]. Engen v. James, 92 Idaho 690, 448 P.2d 977 (1969).

Compiler’s Notes.

The bracketed insertions in paragraph (a)(3) and subsections (b) and (g) were added by the compiler to correct the name of the referenced law. See§ 72-101 et seq.

Section 3 of S.L. 1969, ch. 250 also purported to amend this section, but, since it was passed by the House in a different version than was passed by the Senate, it was deemed invalid.

The term “this act” in paragraphs (a)(3) and (a)(4) and subsection (b) refers to S.L. 1967, Chapter 429 which is generally compiled as chapters 1 to 3, 6 to 10, 13 to 19, and 21 to 23, title 50, Idaho Code.

Effect of Repeal on Existing Rights.

The repeal of former provision allowing retirement at half-pay of disabled policeman did not affect the rights of one who had become entitled to retirement and applied therefor prior to such repeal, as the existing rights of such a one could not be taken away by a later act of the legislature. Engen v. James, 92 Idaho 690, 448 P.2d 977 (1969).

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertion at the end of the section was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertions were added in three places by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertions were added by the compiler to conform to the statutory citation style.

Cross References.

Making a false claim,§ 50-1526.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Cross References.

Public employee retirement system,§ 59-1301 et seq.

Compiler’s Notes.

The phrase “the effective date of this act” in the first and second sentences refers to the effective date of S.L. 1967, Chapter 429, which was effective April 12, 1967.

The bracketed insertion in the first sentence was added by the compiler to conform to the statutory citation style.

Effective Dates.

Section 2 of S.L. 1969, ch. 307 declared an emergency. Approved March 27, 1969.

Section 2 of S.L. 1970, ch. 24 declared an emergency. Approved February 17, 1970.

Cross References.

Secretary of state,§ 67-901 et seq.

Compiler’s Notes.

Section 8 of S.L. 1971, ch. 26 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act”.

Effective Dates.

Section 9 of S.L. 1971, ch. 26 provided that the act should be in full force and effect on and after July 1, 1971.

Cross References.

Worker’s compensation applies,§ 72-205.

Prior Laws.

Section 472 of S.L. 1967, ch. 429 repealed former chs. 1 to 46, inclusive, and chs. 48, 49 of tit. 50.

Effective Dates.

Section 475 of S.L. 1967, ch. 429 declared an emergency. Approved April 12, 1967.

Firefighters.

The contract the city of Boise made with the Idaho national guard (IDANG) to provide air rescue fire fighting (ARFF) services at the Boise municipal airport did not violate the Idaho constitution or the Idaho civil service act; however, the firefighters were entitled to collectively bargain in anticipation of the city’s actions to replace union employees with IDANG firefighters to perform the work previously performed by union members, and, by refusing to negotiate with the union, the city violated the collective bargaining act. International Ass’n of Firefighters Local No. 672 v. Boise City, 136 Idaho 162, 30 P.3d 940 (2001).

Amendments.

The 2020 amendment, by ch. 175, rewrote paragraph (4)(b), which formerly read: “Conviction of a felony or a misdemeanor involving moral turpitude.”

ALR.

Determination as to good faith in abolition of public service or employment subject to civil service or merit system. 87 A.L.R.3d 1165.

Sexual misconduct or irregularity as amounting to conduct unbecoming an officer, justifying officer’s demotion or removal or suspension from duty. 9 A.L.R.4th 614.

First amendment protection for publicly employed firefighters subjected to discharge, transfer, or discipline because of free speech. 106 A.L.R. Fed. 396.

Nonsexual misconduct or irregularity as amounting to “conduct unbecoming an officer,” justifying police officer’s demotion or removal or suspension from duty. 19 A.L.R.6th 217.

Findings of Commission.

The civil service commission made findings which complied on their face with this section, where the commission determined that the police officer used excessive force when disciplining his stepchildren, causing injuries to those children, that his actions demonstrated an inability to control his temper and an inability to react appropriately as a result thereof, that his inability to control his temper cast serious doubt upon his ability to perform his duties as a police officer, and that no evidence was presented suggesting he was discharged for political or religious reasons. Dexter v. Idaho Falls City Police Dep’t, 113 Idaho 179, 742 P.2d 434 (Ct. App. 1987).

Judicial Review.

On judicial review of a civil service commission determination, the district court is required to conduct a full review of the whole record and, where the commission’s conclusions are unsupported by substantial evidence, its function encompasses stating, both for the benefit of the parties and the supreme court, its reasoning and conclusions which very well may but need not take the form of findings and conclusions. Local 1494 of Int’l Ass’n of Firefighters v. City of Coeur d’Alene, 99 Idaho 630, 586 P.2d 1346 (1978).

The character of the commission, the roles committed to it by statute, and the manner in which the commission functioned serve to vary the standard of judicial review. Local 1494 of Int’l Ass’n of Firefighters v. City of Coeur d’Alene, 99 Idaho 630, 586 P.2d 1346 (1978).

Summary Appeal in District Court.

Where the trial court heard oral argument of counsel, which consumed 30 minutes, following which the district court, within the confines of his chambers, made his review of the appeal record over a period of time extending from June 27, 1977, to August 25, 1977, it was clear that the district court proceeded in the “summary” manner required by this section, and the procedure was that which the parties envisioned as required by the section and their stipulation. Local 1494 of Int’l Ass’n of Firefighters v. City of Coeur d’Alene, 99 Idaho 630, 586 P.2d 1346 (1978).

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Prior Laws.

Former§§ 50-1701 — 50-1727, which comprised S.L. 1967, ch. 429,§§ 287-314; am. 1968 (2nd E.S.), ch. 21,§§ 1-3; am. 1969, ch. 41,§§ 1-3, 6; am. 1969, ch. 181, § 1; am. 1970, ch. 99, § 1; am. 1970, ch. 133, §§ 14, 15; am. 1971, ch. 159, § 1; am. 1974, ch. 55, § 1; am. 1975, ch. 93, §§ 1, 2; am. 1975, ch. 168,§§ 1-3, were repealed by S.L. 1976, ch. 160, § 1.

Prior to such repeal, section 472 of S.L. 1967, ch. 429 had repealed former chs. 1 to 46, inclusive, and chs. 48, 49 of tit. 50.

Compiler’s Notes.

Section 3 of S.L. 1976, ch. 160 read: “All local improvement districts heretofore created or attempted to be created, and all assessments heretofore levied therein or attempted to be levied therein, which have not heretofore been adjudicated invalid, and all notices, assessments and proceedings taken in relation thereto whether void, defective or invalid, in all cases where the improvements contemplated have been made or contracted for, are hereby ratified, validated and confirmed and made sufficient to the same extent as if the same were perfected in the first instance. All acts and proceedings of any municipality had under or by virtue of the local improvement district code, and all contracts heretofore or hereafter made, and all warrants and bonds heretofore or hereafter issued pursuant to said acts and proceedings, are hereby ratified, validated and confirmed. All sections of the local improvement district code not specifically repealed herein are hereby ratified, validated and confirmed and made sufficient to the same extent as if they had been properly enacted in the first instance.”

Validation of Void Assessments.

Inasmuch as Idaho Const., Art. XI, § 12 prohibits the imposition of laws imposing new pecuniary liabilities in respect to transactions or considerations already past, Laws 1976, c. 160, § 3, which claims to validate all invalid assessments previously levied, cannot be the basis upon which property owners could be reassessed for improvement project costs incurred prior to the time the city acquired jurisdiction to incur such costs. Butler v. City of Blackfoot, 98 Idaho 854, 574 P.2d 542 (1978).

Cited Ward v. Ada County Hwy. Dist., 106 Idaho 889, 684 P.2d 291 (1984); Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986). Decisions Under Prior Law

Constitutionality.

Costs incurred prior to creation of district.

Drainage districts.

Due process.

Statutory creation.

Validity.

Waiver of objections.

Constitutionality.

Provisions of former local improvement district code were not unconstitutional as violative of provision against taking of property without due process of law. Bell v. City of Moscow, 48 Idaho 65, 279 P. 1095 (1929); Wheeler v. City of Caldwell, 48 Idaho 77, 279 P. 412 (1929).

Costs Incurred Prior to Creation of District.

Inasmuch as a municipality acquired no statutory jurisdiction to incur costs to be assessed against abutting property owners under the 1967 local improvement district code until after the city council had held a hearing for public protests, any costs generated prior to the proper creation of a special improvement district could not be assessed against allegedly affected property owners. Butler v. City of Blackfoot, 98 Idaho 854, 574 P.2d 542 (1978).

Drainage Districts.

A drainage district was a local improvement district and because of the mere fact that it was not included within the local improvement code, it does not necessarily follow that it was not a local improvement district, if it was such in fact. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Due Process.

Due process in the organization of a special assessment district and issuance of bonds thereby was afforded by the municipality’s notice to all interested parties, hearing before the council, and city’s assessment of benefits for the district. Oregon S.L.R.R. v. Berg, 52 Idaho 499, 16 P.2d 373 (1932).

Statutory Creation.

Special improvement districts were purely creatures of statute. Meyers v. City of Idaho Falls, 52 Idaho 81, 11 P.2d 626 (1932).

Validity.

Former sections governing special assessments for street improvements violated no constitutional right of owners of property assessed, as long as benefits continued respectively to equal the individual assessments. Noble Estate v. City of Boise City, 19 F.2d 927 (D. Idaho 1927).

Waiver of Objections.

Paving assessment against abutting property was held not discriminatory because city paved street in front of other property abutting on line of improvement at its own expense. Noble Estate v. City of Boise City, 19 F.2d 927 (D. Idaho 1927). Waiver of Objections.

Property owners who failed to object to street assessments and to take advantage of opportunity for hearing before city council could not thereafter question assessment in federal court. Noble Estate v. City of Boise City, 19 F.2d 927 (D. Idaho 1927).

Prior Laws.

Former§ 15-1702 was repealed. See Prior Laws,§ 50-1701.

Compiler’s Notes.

For meaning of words “this code”, see§ 50-1701.

Assessment of Costs.

Engineering and design expenses incurred prior to the formation of the local improvement district were properly assessed against the property owners. Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986).

Cross References.

Department of environmental quality,§ 39-104.

Prior Laws.

Former§ 50-1703 was repealed. See Prior Laws,§ 50-1701.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Prior Laws.

Former§ 50-1704 was repealed. See Prior Laws,§ 50-1701.

Prior Laws.

Former§ 50-1705 was repealed. See Prior Laws,§ 50-1701.

Prior Laws.

Former§ 50-1706 was repealed. See Prior Laws,§ 50-1701.

Prior Laws.

Former§ 50-1707 was repealed. See Prior Laws,§ 50-1701.

Amendments.

The 2007 amendment, by ch. 58, inserted “or” preceding “in proportion to the benefits” in subsection (c).

Compiler’s Notes.

The term “this act”, in subsection (4), refers to S.L. 1976, Chapter 160, which is codified as§§ 50-1701 to 50-1703, 50-1704 to 50-1706, 50-1707 to 50-1721, and 50-1722 to 50-1727.

Effective Dates.

Section 2 of S.L. 2007, ch. 58 declared an emergency. Approved March 12, 2007.

Benefited Lands.

Any lands assessed within the proposed local improvement district must be “benefited” by such improvements. Ward v. Ada County Hwy. Dist., 106 Idaho 889, 684 P.2d 291 (1984).

Calculation of Assessments.

The commissioners of a local improvement district (LID) did not err in determining that the assessments to be made on the properties within the LID for the costs of street improvements should be calculated on the front foot method, and the said commissioners did not err in failing to modify the assessment so imposed on the plaintiff property owner by consideration of the benefits conferred by the project on the separate properties in the district. Ward v. Ada County Hwy. Dist., 106 Idaho 889, 684 P.2d 291 (1984).

Disqualification of Council Member.

The ownership of property in a local improvement district (LID) does not disqualify a council member from participating in proceedings to form a LID or assess property levies. Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986).

Method of Assessment.

A basic qualification of an assessment method is that there must be a factual correlation between the result of an assessment formula and the actual benefit conferred. Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986).

In applying the “benefits derived” method of assessment pursuant to subdivision (c) of this section, a municipality may consider square footage and zones based on the proximity to improvements made in reaching an equitable distribution of costs in relation to benefits. Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986).

In applying the “benefits derived” method of assessment pursuant to subdivision (c) of this section, the city supported its choice of a 100-40-20 ratio to allocate improvement costs with testimony that an architectural firm had described to the steering committee and the city council a number of assessment methods, including the use of a ratio, the city council deliberated over the methods available, considering a 100-50-25 ratio as well as the one ultimately selected, and the assessments levied appeared to be reasonable approximations of value of the benefits derived by each property owner. Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986).

When the “benefits derived” method of assessment is used pursuant to subdivision (c) of this section, “benefits” need not be defined as the increase in market value of each particular parcel of property before and after improvements, considering the property’s highest and best use. Instead, the city can consider special benefits, including stabilization of property values and rents; improved access to downtown businesses; enhanced ability to use the downtown area for public activities; increased safety for downtown pedestrians and business customers; improved appearance of the downtown area; and increased likelihood of preservation and restoration of historic downtown buildings. Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986). The front or square footage methods of assessment are a less flexible method of apportioning costs than the benefits derived method. The front and square footage methods may be satisfactory where an improvement is limited in scope and of proportionally equal benefit to all affected properties, such as a sewer, a roadway or a water line; however, where benefits are contemplated to be less immediate and measurable, a method of assessment based solely on front or square footage will be inadequate. Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986).

Decisions Under Prior Law

Basis of assessments.

Defective ordinance.

Estimate by engineer.

Failure to file affidavit.

“General character” defined.

General description and cost estimates.

Notice of organization as due process.

Notice to nonresident taxpayer.

Purpose of ordinance.

Substantial compliance.

Sufficiency of description.

Test of ordinance.

Waiver of defects.

Basis of Assessments.

Former section governing creation of sewerage districts contemplated that assessments be made in accordance with the benefits received by each tract of land. Veatch v. Gibson, 29 Idaho 609, 160 P. 1112 (1916).

Defective Ordinance.

Ordinance of intention which stated that sewerage district should not include, for assessment, property occupied by the cross streets and alleys in said district, omitting streets, was defective. Williams v. City of Caldwell, 19 Idaho 514, 114 P. 519 (1911).

Where ordinance was defective, it could be cured by positive statement in the law authorizing the ordinance; property owners and other persons interested had notice by the statute itself. Williams v. City of Caldwell, 19 Idaho 514, 114 P. 519 (1911).

Estimate by Engineer.

Former section governing creation of sewerage districts contemplated that, before assessment roll could be properly prepared or contract let for construction of sewer system, there was required to be basis for same which requires estimate of costs by city engineer. Lucas v. City of Nampa, 41 Idaho 35, 238 P. 288 (1925).

Failure to File Affidavit.

Mere failure to file affidavit of publication was not jurisdictional and, in such case, where publication was actually made, full notice was, in fact, given as required by statute and no property owner was in any way injured. McEwen v. City of Coeur d’Alene, 23 Idaho 746, 132 P. 308 (1913).

“General Character” Defined.

“General character of proposed improvement” did not mean that special, particular, minute or detailed description of work should be stated, but that general statement should be made pertaining to whole class or order; belonging to a whole rather than a part. It was optional with council whether it should adopt any system of universal application or pursue any plan which it may deem best suited to improvement contemplated at given time. McEwen v. City of Coeur d’Alene, 23 Idaho 746, 132 P. 308 (1913).

General Description and Cost Estimates.

Former sections governing resolutions of intention and ordinances contemplated that the general nature of the proposed improvements and the estimated costs be known prior to creation of a local improvement district; they did not provide that the actual improvements and costs should already have been decided since such a reading would negate the very purpose of the elaborate provisions for public input. Butler v. City of Blackfoot, 102 Idaho 608, 635 P.2d 1231 (1981).

Notice of Organization as Due Process.

Due process in the organization of special assessment district and issuance of bonds thereby was afforded by the municipality’s notice to all interested parties, hearing before the council, and the municipality’s assessment of benefits for the district. Oregon S.L.R.R. v. Berg, 52 Idaho 499, 16 P.2d 373 (1932).

Notice to Nonresident Taxpayer.

Notice of municipality’s organization of a special assessment district to a taxpayer outside of the district was unnecessary to afford due process where no burden was placed on such taxpayer’s land. Oregon S.L.R.R. v. Berg, 52 Idaho 499, 16 P.2d 373 (1932).

Purpose of Ordinance.

Resolution or ordinance of intention was for purpose of giving notice to property owners who would be subjected to costs and assessments of intention of council. McEwen v. City of Coeur d’Alene, 23 Idaho 746, 132 P. 308 (1913).

Substantial Compliance.

It was sufficient compliance with former section governing creation of sewerage districts for city council to pass an ordinance giving names and description of streets to be improved and character of improvement to be made, and reciting that public interest and convenience demand that such improvement be made, and designating a time on or before which protests could be made and filed with the city clerk against such proposed improvement. Clyde v. City of Moscow, 23 Idaho 592, 131 P. 381 (1913).

Where resolution or ordinance of intention described exterior boundaries of improvement district proposed to be established, and also contained number of lots and blocks within such district that would be affected by such improvement, it was sufficient compliance with former section governing creation of sewerage districts, since the streets and alleys could be readily ascertained and determined from said description. Coughanour v. City of Payette, 26 Idaho 280, 142 P. 1076 (1914). In assessing property for local improvements a substantial compliance with the law was sufficient. McQueen v. City of Moscow, 28 Idaho 146, 152 P. 799 (1915).

In ordinance ordering improvements and assessment, the lots and tracts of land to be assessed were required to be described by their subdivisions and present ownership, but this was not required in the ordinance of intention. Veatch v. Gibson, 29 Idaho 609, 160 P. 1112 (1916).

Sufficiency of Description.

Former section governing creation of sewerage districts was required to be liberally construed and substantial compliance was all that was required of council. Property sought to be charged was sufficiently described if it could be identified. Platt v. City of Payette, 19 Idaho 470, 114 P. 25 (1911).

Where ordinance declaring intention of council to organize a sewer district and construct a sewer system stated that character of proposed lateral system should be that of gravity and according to plans and specifications on file in office of city engineer it was sufficient compliance with former section governing creation of sewerage districts. Williams v. City of Caldwell, 19 Idaho 514, 114 P. 519 (1911).

Notice advising that certain proposed work would be done in accordance with plans and specifications in office of city engineer was sufficient. Dement v. City of Caldwell, 22 Idaho 62, 125 P. 200 (1912).

A proposed change in the plan of a sewer system which did not increase the cost, and no one was injured thereby, was not such a departure from the plan and construction described in the ordinance of intention as would render the proceedings void. City of Caldwell v. Village of Mt. Home, 29 Idaho 13, 156 P. 909 (1916).

Where a village passed ordinances declaring an intention to establish certain sewer districts and defining their boundaries and referring to certain plans, outlines and estimates of cost thereof in office of village clerk, where persons interested were thereby referred for more detailed information, such proceedings were sufficient compliance. City of Caldwell v. Village of Mt. Home, 29 Idaho 13, 156 P. 909 (1916).

Where boundary lines given in an ordinance were boundary lines of a city they were sufficient. Veatch v. Gibson, 29 Idaho 609, 160 P. 1112 (1916).

Test of Ordinance.

Test as to whether notice of intention complies with law was whether it furnished an effective opportunity to be heard and gave reasonable notice thereof to those interested. Coughanour v. City of Payette, 26 Idaho 280, 142 P. 1076 (1914).

Waiver of Defects.

Protest by property owner against creation of proposed improvement district waived objection to the sufficiency of notice of the description of district. Coughanour v. City of Payette, 26 Idaho 280, 142 P. 1076 (1914).

Prior Laws.

Former§ 50-1708 was repealed. See Prior Laws,§ 50-1701.

Decisions Under Prior Law

Nature of improvements and estimated costs.

Notice to nonresident taxpayer.

Nature of Improvements and Estimated Costs.

Former sections governing resolutions of intention and ordinances contemplated that the general nature of the proposed improvements and the estimated costs be known prior to creation of a local improvement district; they did not provide that the actual improvements and costs should already have been decided since such a reading would negate the very purpose of the elaborate provisions for public input. Butler v. City of Blackfoot, 102 Idaho 608, 635 P.2d 1231 (1981).

Notice to Nonresident Taxpayer.

Notice of city’s organization of special assessment district to a taxpayer outside of the district was unnecessary to afford due process, where no burden was placed on the land of such taxpayers. Oregon S.L.R.R. v. Berg, 52 Idaho 499, 16 P.2d 373 (1932).

Prior Laws.

Former§ 50-1709 was repealed. See Prior Laws,§ 50-1701.

Constitutionality.

This section, which sets out the procedure whereby a proposed local improvement district may be protested by affected property owners, is not unconstitutional as a denial of the due process rights of the protesting property owners. Mangum v. City of Orofino, 105 Idaho 307, 669 P.2d 196 (1983).

Statute of Limitations.

The 30-day limitation period of§ 50-1727 has application to a “contest or proceeding to question the validity or legality of any ordinance, resolution or proceeding or any bonds which may be authorized thereby,” and not to a constitutional attack on a statute. Thus, where property owners objecting to the formation of a local improvement district challenged the constitutionality of the authorizing statute (this section) itself, the statutory period of limitations did not apply. Mangum v. City of Orofino, 105 Idaho 307, 669 P.2d 196 (1983).

Decisions Under Prior Law

Decision of council.

Waiver.

Decision of Council.

Waiver.

Decision of city council on all protests to creation of district or making of improvements was final and conclusive, and after decision, said council was deemed to have acquired jurisdiction to order improvements. Bell v. City of Moscow, 48 Idaho 65, 279 P. 1095 (1929). Waiver.

If property owner did not object to creation of district, as herein provided, he would be deemed to have waived any right he had to object. City of Caldwell v. Village of Mt. Home, 29 Idaho 13, 156 P. 909 (1916).

Prior Laws.

Former§ 50-1710 was repealed. See Prior Laws,§ 50-1701.

Compiler’s Notes.

For meaning of words “this code” in third paragraph, see§ 50-1701.

Engineering and Design Expenses.

Engineering and design expenses incurred prior to the formation of the local improvement district were properly assessed against the property owners. Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986).

Decisions Under Prior Law

Character of bond.

Competitive bidding.

Contract to lowest bidder.

Costs incurred pursuant to invalid contract.

Description.

Discretion of council.

Hearing required.

Inclusion of property.

Nature of improvement and cost estimates.

Second ordinance.

Specifications.

Substantial compliance.

Valid contract.

When costs incurred.

Character of Bond.

Where public improvement contract provided for the giving of a surety company bond, acceptance of private bond did not invalidate contract. Pease v. City of Payette, 26 Idaho 793, 147 P. 290 (1915).

Competitive Bidding.

Contract to Lowest Bidder.

Where specifications called for patented pavement and owner of such patent was not a bidder and had no interest of any kind in any bid, but filed a written statement offering to sell its patent pavement and right thereto at a flat price to any bidder, the principle of competition was retained. McEwen v. City of Coeur d’Alene, 23 Idaho 746, 132 P. 308 (1913). Contract to Lowest Bidder.

Contract was required to be let to lowest bidder unless good reason existed why higher was best responsible bidder, and such reasons were required to be made of record. Seysler v. Mowery, 29 Idaho 412, 160 P. 262 (1916).

Costs Incurred Pursuant to Invalid Contract.

Under former similar section, where improvements were ordered prior to the date a hearing was held, engineering and construction fees added to the work after the hearing date because of the original work were “incurred” prior to the hearing date; accordingly, the city, which was without jurisdiction to order the original contract, could not assess property owners for any fees arising from completion of that contract. Butler v. City of Blackfoot, 102 Idaho 608, 635 P.2d 1231 (1981).

Description.

In ordinance ordering improvements and assessment, lots and tracts were required to be described by their subdivisions. Veatch v. Gibson, 29 Idaho 609, 160 P. 1112 (1916).

Discretion of Council.

Court should not set aside action of council under former similar section in absence of proof that such action was arbitrary and without regard to benefits accruing to adjacent property by reason of the improvement. Noble Estate v. City of Boise City, 19 F.2d 927 (D. Idaho 1927).

Hearing Required.

Under former similar section, a city did not have jurisdiction to order irrigation system improvements prior to the date of hearing, and the mere fact that the orders were not actually signed until after the hearing date did not validate them. Butler v. City of Blackfoot, 102 Idaho 608, 635 P.2d 1231 (1981).

Inclusion of Property.

Mere inclusion of property in improvement district was not final decision that it was subject to improvement. Bell v. City of Moscow, 48 Idaho 65, 279 P. 1095 (1929).

Nature of Improvement and Cost Estimates.

Former sections governing resolutions of intention and ordinances contemplated that the general nature of the proposed improvements and the estimated costs be known prior to creation of a local improvement district; they did not provide that the actual improvements and costs should already have been decided since such a reading would negate the very purpose of the elaborate provisions for public input. Butler v. City of Blackfoot, 102 Idaho 608, 635 P.2d 1231 (1981).

Second Ordinance.

Specifications.

After ordinance of intention had been enacted, stating the intention of city, the city council should have passed ordinance establishing improvement district, and, in later ordinance, general character of proposed improvement should have been stated and the more specific character of proposed improvement have been given. McEwen v. City of Coeur d’Alene, 23 Idaho 746, 132 P. 308 (1913). Specifications.

Power was vested in council to determine character and kind of materials to be used in proposed improvement. McEwen v. City of Coeur d’Alene, 23 Idaho 746, 132 P. 308 (1913).

Specifications were required to be sufficiently definite to enable strict enforcement of terms against successful bidder. Seysler v. Mowery, 29 Idaho 412, 160 P. 262 (1916).

Substantial Compliance.

Former section governing contracts for improvements was substantially complied with by council passing and mayor approving an ordinance providing for contract and authorizing its execution and prescribing terms and conditions thereof. Clyde v. City of Moscow, 23 Idaho 592, 131 P. 381 (1913).

Valid Contract.

Provisions in street improvement contract holding contractor responsible for defects and damages were held not to make the contract invalid. Pease v. City of Payette, 26 Idaho 793, 147 P. 290 (1915).

When Costs Incurred.

Where change orders for the installation of an irrigation system were authorized by a city prior to the date on which the hearing required by former similar section was held, the costs were “incurred” for purposes of determining whether the city had jurisdiction to assess property owners for improvements, even though the city had not actually expended the moneys. Butler v. City of Blackfoot, 102 Idaho 608, 635 P.2d 1231 (1981).

Prior Laws.

Former§ 50-1711 was repealed. See Prior Laws,§ 50-1701.

Prior Laws.

Former§ 50-1712 was repealed. See Prior Laws,§ 50-1701.

Decisions Under Prior Law

“Abutting on” and “contiguous”.

Basis of assessment.

Jurisdictional requirements.

Municipal property.

Obligation of indebtedness.

Owner not known and property not described.

Presumption of compliance.

Presumption of knowledge of city’s powers.

Public records.

Quiet title action.

Reassessments to cover deficiency.

Reconstruction of system.

“Abutting on” and “Contiguous”.

Terms “abutting on” and “contiguous” were synonymous, both conveying idea that lot borders on improvement. Amsbary v. City of Twin Falls, 34 Idaho 313, 200 P. 723 (1921).

Franchise, roadbed, tracks and like property of street railroads in pavement improvement district were taxable as “abutting, contiguous, tributary or included lands” in proportion to benefits accruing from the improvement. Reynard v. City of Caldwell, 55 Idaho 342, 42 P.2d 292 (1935).

Basis of Assessment.

It was both just and equitable that special assessments within a sewer district be imposed upon the land itself and not upon the improvements thereon. McGilvery v. City of Lewiston, 13 Idaho 338, 90 P. 348 (1907).

Assessment should be made with reference to the frontage of lots and lands and benefits to be derived to the abutting property by reason of sewer improvement; the number of fronting feet of lots and lands was not sole controlling fact for consideration in levy of a special assessment. Blackwell v. Village of Coeur d’Alene, 13 Idaho 357, 90 P. 353 (1907).

Paving assessments based on frontage were not invalid because of differences in value and depth of various properties assessed. Noble Estate v. City of Boise City, 19 F.2d 927 (D. Idaho 1927).

The measure of assessments of property of a drainage district was that of benefits received. Straus v. Ketchen, 54 Idaho 56, 28 P.2d 824 (1933).

Jurisdictional Requirements.

Municipal Property.

Under constitutional requirement of due process, requirement of statute that assessment roll name the owner of property assessed if known, and/or describe property if owner unknown was jurisdictional and did not relate to mere irregularities in assessment proceeding, and hence a statutory provision for appeal within five days as exclusive means of attack on assessment would not bar suit attacking assessment for failure to comply with such provision. Western Loan & Bldg. Co. v. Bandel, 57 Idaho 101, 63 P.2d 159 (1936). Municipal Property.

A city was without authority to levy special assessments against its own property for the cost of local improvements. Reynard v. City of Caldwell, 53 Idaho 62, 21 P.2d 527 (1933).

Obligation of Indebtedness.

Indebtedness created under former sections governing sewer construction was against property in the district and was not an obligation of the city or village. Broad v. City of Moscow, 15 Idaho 606, 99 P. 101 (1908).

Owner Not Known and Property Not Described.

Local improvement district assessment roll, made pursuant to ordinance requiring description of assessed property, purporting to assess property in the name of contract vendee by description merely referring to tax list in which property was misdescribed, was insufficient on which to base delinquency certificates, and deed to holder thereof, especially in absence of a showing by whom tax list was made or authorized and purpose thereof. Western Loan & Bldg. Co. v. Bandel, 57 Idaho 101, 63 P.2d 159 (1936).

Presumption of Compliance.

It would be presumed, in absence of evidence to contrary, that official acts connected with assessment were performed in substantial compliance with statute. Dement v. City of Caldwell, 22 Idaho 62, 125 P. 200 (1912).

Presumption of Knowledge of City’s Powers.

Knowledge of statute providing that all improvements made within paving improvement district, especially benefiting city property therein, should be payable out of general fund would be imputed to purchasers of improvement district bonds, since all persons were presumed to know extent of city’s powers to levy assessments against property in improvement district. Reynard v. City of Caldwell, 55 Idaho 342, 42 P.2d 292 (1935).

Public Records.

Local improvement district assessment roll was public record to which property owners were entitled to look for information as to whether their property had been assessed. Western Loan & Bldg. Co. v. Bandel, 57 Idaho 101, 63 P.2d 159 (1936).

Quiet Title Action.

In a suit to quiet title and recover possession of realty as against a grantee of an invalid deed, issued to purchaser of delinquency certificate for amount of invalid improvement assessments, amount paid by grantee for delinquency certificate, deed, recording fee, and taxes on and improvement of property was required to be deducted from the amount due owners by grantee as rental for use and occupation of the premises. Western Loan & Bldg. Co. v. Bandel, 57 Idaho 101, 63 P.2d 159 (1936).

Reassessments to Cover Deficiency.

Reconstruction of System.

Under statute providing for assessment of lands in improvement district in proportion to number of feet fronting thereon, or included therein, and in proportion to the benefits received, private property within paving improvement district could not be reassessed to make up deficiency for failure of street railroads to pay balance due under lawful assessments against their property. Reynard v. City of Caldwell, 55 Idaho 342, 42 P.2d 292 (1935). Reconstruction of System.

After the property of a city had once been assessed for a sewerage system, the same property could be again assessed for the purpose of building a new system where the old one had become inadequate. Veatch v. Gibson, 29 Idaho 609, 160 P. 1112 (1916).

Prior Laws.

Former§ 50-1713 was repealed. See Prior Laws,§ 50-1701.

Prior Laws.

Former§ 50-1714 was repealed. See Prior Laws,§ 50-1701.