The opinion of the court was delivered by: Bistline, Justice.
On October 6, 1987, the Boise City Council met in regular session to discuss, among other things, the proposed annexation of the Crane Creek Country Club (Crane Creek). At that meeting a motion to annex Crane Creek was made, seconded, and passed, and the Department of Planning and Community Development was ordered to prepare an annexation ordinance. On October 16, 1987, Crane Creek filed a petition for writ of prohibition to restrain Boise City from annexing Crane Creek. Because all of the Fourth Judicial District judges disqualified themselves, the Honorable James J. May of the Fifth Judicial District was assigned to the Fourth Judicial District to preside over the cause. Judge May reviewed the contents of the petition and entered an order granting an alternative writ of prohibition which required the city of Boise to appear before the court and show cause why the city should not be permanently and absolutely prohibited from annexing Crane Creek. Boise City immediately filed its answer. After a hearing on the matter Judge May ruled that the alternate writ would remain in effect until trial was held.
At trial the central issue was whether the ownership of the property which is now Crane Creek ever at any one time satisfied the requirements established by Idaho Code § 50-222 for purposes of annexation. Evidence concerning the chain of ownership and the subdividing and platting of the relevant property was submitted by both sides. Based on that evidence the district court made its findings of fact, conclusions of law, and order.
The court found that Crane Creek had not belonged in its entirety to a single owner until it belonged to Crane Creek. Therefore, the court concluded, the sale of a parcel of less than five acres and the subdivision and platting of land by a prior owner of part of Crane Creek, The Highlands, Inc., had no bearing on the annexability of Crane Creek. The court further found that Crane Creek itself had never sold off parcels of less than five acres, nor had it ever subdivided or platted the property. The findings and conclusions of the district court also state that Crane Creek satisfied none of the other conditions which would make the property eligible for annexation under I.C. § 50-222. Finally, the court found that Crane Creek would receive no benefits from an annexation and that the proposed annexation therefore did not meet the test of reasonableness established in Hendricks v. City of Nampa, 93 Idaho 95, 456 P.2d 262 (1969). The district court therefore ruled that "[a]nnexation of Crane Creek by the City of Boise is precluded. The alternate Writ of Possession [sic, Prohibition] currently in place is hereby made permanent. Respondent is restrained and enjoined from further attempts to annex Crane Creek Country Club." It is from this ruling that Boise City appeals.
Unfortunately, because Crane Creek erred in its choice of remedial tools, we are unable to reach the merits in this case. As noted, Crane Creek petitioned for, and eventually was granted, a peremptory writ of prohibition. The statute which grants authority to the district courts to issue such writs is Idaho Code § 7-401:
7-401. Definition. — The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.
The decisions of this Court have consistently held that the writ of prohibition is extraordinary and is issued with caution. State v. Leonardson, 51 Idaho 646, 9 P.2d 1028 (1932); see also Rust v. Stewart, 7 Idaho 558, 64 P. 222 (1901). The Court has also held, on numerous occasions, that a writ of prohibition will only issue when the action sought to be prohibited is not within the lawful jurisdiction of the body attempting to take the action. Id. See also Clark v. Meehl, 98 Idaho 641, 570 P.2d 1331 (1977); Dey v. Cunningham, 93 Idaho 684, 471 P.2d 71 (1970). Thus, "[p]rohibition is primarily concerned with jurisdiction and is not available to review errors committed in the exercise of jurisdiction." Freiburghaus v. Freiburghaus, 100 Idaho 730, 731, 604 P.2d 1209, 1210 (1980); see also Gasper v. District Court, 74 Idaho 388, 391, 264 P.2d 679, 680 (1953); Gropp v. Huyette, 35 Idaho 683, 208 P. 848 (1922).
We conclude that the Boise City Council's proposed annexation was not without or in excess of the City Council's jurisdiction. The word "jurisdiction," in the context of the statute defining the writ of prohibition, pertains to the exercise of judicial or quasi judicial functions. Stein v. Morrison, 9 Idaho 426, 75 P. 246 (1904). While it is true that city councils on occasion act in a quasi judicial capacity, annexation is not such an occasion. Rather, annexation is a legislative act of city government accomplished by the enactment of an ordinance, Idaho Code § 50-222.[*fn1] Hence it is not subject to prohibition. The trial court therefore erred in issuing a writ of prohibition which barred the City of Boise from annexing the Crane Creek Country Club, because the court did not have jurisdiction to do so.
The judgment of the district court is reversed. Costs to appellants; no attorneys fees on appeal.
McDEVITT, J., concurs in the result.
BAKES, Chief Justice, concurring specially:
I concur in the Court's reversal of the district court's order which made the alternative writ of prohibition, which it had earlier issued, "permanent" and which restrained and enjoined the City of Boise "from further attempts to annex Crane Creek Country Club."
As the majority opinion correctly states, "[p]rohibition is primarily concerned with jurisdiction and is not available to review errors committed in the exercise of jurisdiction." Ante at ___, 826 P.2d at 447. The Court's opinion correctly points out that the City Council had jurisdiction to consider the annexation question, and therefore the proceedings in the district court should have been a judicial review of the validity of the particular action taken, not the issuance of a writ of prohibition to prohibit the City Council from exercising its statutory authority to annex.
However, the problem which the Court is faced with in this case arises from the fact that the appellant has not assigned as error the act of the district court in considering and granting a writ of prohibition against the city. Not having raised the issue on appeal, ordinarily this Court would not consider the issue. Nycum v. Triangle Dairy Co., 109 Idaho 858, 712 P.2d 559 (1985); Baldner v. Bennett's, Inc., 103 Idaho 458, 649 P.2d 1214 (1982). We would not ordinarily raise sua sponte the writ of prohibition issue. However, in the past we have held that where plain error or fundamental error has occurred, we will consider issues not raised on appeal. State v. Haggard, 94 Idaho 249, 486 P.2d 260 (1971); State v. Cariaga, 95 Idaho 900, 523 P.2d 32 (1974).
In this case if the district court had merely entered a judgment that the attempted annexation did not comply with the statutes, and therefore was invalid, I would not invoke the plain error doctrine. However, here the district court entered an order making the alternative writ of prohibition permanent and enjoining the City of Boise "from further attempts to annex Crane Creek Country Club." Enjoining a separate branch of government from carrying out in the future its statutorily authorized functions is a very serious matter and, as such, justifies the application of the plain error doctrine in reaching the issues which the Court's opinion does today. Accordingly, I concur that the judgment of the district court should be reversed and the court's order issuing a writ of prohibition against ...