Summary
In Girard, the Idaho Secretary of State asked the Court to issue a writ of mandate to compel the Attorney General to provide a ballot title for a referendum petition.
Summary of this case from American Civil Liberties Union, Idaho Chapter v. EchohawkOpinion
No. 6253.
April 2, 1935.
APPLICATION for peremptory writ of mandate. Granted.
J.L. Eberle and James F. Ailshie, Jr., for Plaintiff.
There is a clear legal duty on the part of the Attorney General to provide the ballot title for H. B. 76, and a clear legal right to have the same provided, as in the application and affidavit alleged, and the Attorney General, as the ministerial officer, has no right to pronounce an act unconstitutional and so disobey it. (Article 3, sec. 1, Const.; chap. 210, Sess. Laws 1933; Logan v. Carter, 49 Idaho 393, 288 Pac. 424; Aker v. Aker, 51 Idaho 555, 8 P.2d 777; Reynard v. Caldwell, 53 Idaho 62, 21 P.2d 527, 90 A.L.R. 1124; Taylor v. Girard, 54 Idaho 487, 36 P.2d 773.)
Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Defendant.
Where an act of a legislature falls within a class not subject to the referendum, the Attorney General may properly refuse to prepare the ballot title, and he cannot be compelled to do so by mandamus. ( Herbring v. Brown, 92 Or. 176, 180 Pac. 328; 38 C. J. 673, sec. 220; Clough v. Curtis, 2 Idaho 523, 22 Pac.)
Mandamus is a discretionary writ and will never be awarded unless the right to the thing sought to be done by it is clearly established. If the right is doubtful, the writ will be refused. ( State v. Banks, 37 Idaho 27, 215 P. 468; State. v. Malcolm, 39 Idaho 185, 226 P. 1083; Logan v. Carter, 49 Idaho 393, 288 P. 424.)
A.A. Fraser, Amicus Curiae.
Plaintiff seeks herein a writ of mandate to compel the defendant, who has heretofore refused, to provide a ballot title for a referendum petition, under chapter 210, Idaho Session Laws, 1933. An alternative writ issued and the case has been argued and submitted.
The defendant justifies his refusal on various statutory and constitutional grounds, and questions have been argued and presented to the court, none of which are deemed to be at the present time properly before the court, or essential to a decision of this matter.
The sole point now determined, and deemed necessary to be determined, is that the duty devolving upon the defendant is ministerial. ( Beem v. Davis et al., 31 Idaho 730, 175 P. 959; Logan v. Carter et al., 49 Idaho 393, at 402, 288 P. 424; Porter and Adams v. Adair, 48 Idaho 248, 282 P. 379.)
IT IS THEREFORE ORDERED, that a peremptory writ of mandate issue forthwith, requiring defendant to immediately provide and return to plaintiff a title for the referendum ballot, in accordance with section 9, chapter 210, supra.
Rice, District Judge, sat in place of Justice Ailshie.