Bradbury v. City of Idaho Falls

• Decision Date: 02 December 1918
• Citation: 32 Idaho 28,177 P. 388
• Parties: W. A. BRADBURY, Appellant, v. CITY OF IDAHO FALLS, a Municipal Corporation, et al., Respondents
• Court: Idaho Supreme Court

177 P. 388

32 Idaho 28

W. A. BRADBURY, Appellant, v. CITY OF IDAHO FALLS, a Municipal Corporation, et al., Respondents

Supreme Court of Idaho

December 2, 1918

MUNICIPAL CORPORATIONS-BONDS-STATUTORY CONSTRUCTION.

1. The power of municipalities to issue bonds must be found in a legislative enactment. It is a grant of authority from the state and must be construed with strictness against the grantee.

2. A statute authorizing any city or village to issue and sell bonds for the purpose of providing necessary funds to pay the cost of acquiring, by purchase or otherwise, a waterworks plant and a water supply and to construct, enlarge, extend repair, alter and improve such plant; also to issue bonds in sufficient amount to acquire, by purchase or otherwise, a light and power plant does not authorize such municipality to issue and sell bonds for the purpose of providing necessary funds to pay the cost of enlarging, extending, repairing altering and improving a light and power plant which it owns.

[As to purpose for which municipal bonds may issue, see note in 59 Am.St. 849]

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge.

Action to enjoin the issuance and sale of municipal bonds. Judgment for defendants. Reversed.

Judgment reversed. Costs awarded to appellant.

Otto E. McCutcheon, for Appellant.

Grants of power to municipal corporations are to be strictly construed, and such corporations possess only such powers as are expressly conferred or necessarily implied. Doubts as to the existence of a power are resolved against the corporation. (2 Sutherland on Statutory Construction, sec. 551, p. 1027, and cases cited in notes; 1 Dillon on Municipal Corp., sec. 237, p. 449, and cases cited in notes; 2 Dillon on Municipal Corp., sec. 883, p. 1357; State v. Frederic, 28 Idaho 709, 155 P. 977; City of Ogden City v. Bear Lake & River W. W. & Irr. Co., 16 Utah 440, 52 P. 697, 41 L. R. A. 305; Farwell v. City of Seattle, 43 Wash. 141, 10 Ann. Cas. 130, 86 P. 217; State v. Superior Court, 93 Wash. 267, 160 P. 755, L. R. A. 1917B, 354; State v. Temple, 99 Neb. 505, 156 N.W. 1063; Oro Electric Corp. v. Railroad Commission, 169 Cal. 466, 147 P. 118; State v. Edwards, 40 Mont. 287, 20 Ann. Cas. 239, 106 P. 695; Sharkey v. Butte, 52 Mont. 16, 155 P. 266; People v. Oak Park, 268 Ill. 256, 109 N.E. 11; City of Independence v. Cleveland, 167 Mo. 384, 67 S.W. 216; Pond on Public Utilities, sec. 1, p. 13; City of Savanna v. Robinson, 81 Ill.App. 471; Boise City v. Boise Artesian H. & C. Water Co., 186 F. 705, 108 C. C. A. 523; Detroit Citizens' Street Ry. Co. v. Detroit, 110 Mich. 384, 64 Am. St. 350, 68 N.W. 304, 35 L. R. A. 859.)

The implied powers of a municipal corporation must be essential to the exercise of the express powers and not merely convenient thereto, and the intent of the legislature to confer them must be clear. (People v. Western New York & Pa. Traction Co., 214 N.Y. 526, 108 N.E. 847.)

Where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others. (2 Sutherland on Statutory Construction, sec. 493, p. 921; 1 McQuillin on Municipal Corp., sec. 343, p. 762; Long Beach v. Boynton, 17 Cal.App. 290, 119 P. 677; People v. Oak Park, 268 Ill. 256, 109 N.E. 11.)

"Where general words follow an enumeration of particular things, such words must be held to include only such things or objects as are of the same kind as those specifically mentioned." (2 Sutherland on Statutory Construction, sec. 422, p. 814; 1 McQuillin on Municipal Corporations, sec. 344, p. 764; Gundling v. Chicago, 176 Ill. 340, 52 N.E. 44, 48 L. R. A. 230; Nichols v. State, 127 Ind. 406, 26 N.E. 839.)

Charter power to issue bonds to construct a public improvement does not include power to issue bonds to repair such improvement, at least, unless the repairs are absolutely necessary to preserve the plant. (Neacy v. Milwaukee, 142 Wis. 590, 126 N.W. 8; State v. Wilder, 200 Mo. 97, 98 S.W. 465; Long Beach v. Boynton, supra.)

E. M. Holden, for Respondents.

"The strictness, then, to be observed in giving construction to municipal charters, should be such as to carry into effect every power clearly intended to be conferred on the municipality, and every power necessarily implied, in order to a complete exercise of the power granted." (1 McQuillin on Municipal Corporations, sec. 354, p. 789; 2 Sutherland on Statutory Construction, sec. 500, p. 933.)

"The general words are not to be rejected, and the maxim ejusdem generis must yield to the maxim that every part of a statute should be upheld and given its appropriate effect, if possible." (2 Sutherland on Statutory Construction, sec. 437, p. 835; National Bank of Commerce v. Ripley, 161 Mo. 126, 61 S.W. 587; State v. Woodman, 26 Mont. 348, 67 P. 1118; Ex parte Smith, 231 Mo. 111, 132 S.W. 607.)

Municipalities in Idaho, under chapter 16, Laws of 1917, have the implied power to incur an indebtedness and issue bonds, to enlarge, extend, repair, alter and improve an inadequate electric light and power plant already owned by a municipality, as an incident to its power to acquire an adequate electric light and power plant. (State ex rel. Fremont v. Babcock, 25 Neb. 500, 41 N.W. 450; Brown v. Graham, 58 Tex. 254; Butler v. Andrus, 35 Mont. 575, 90 P. 785; 2 Sutherland on Statutory Construction, sec. 682, p. 1244; Overall v. Madisonville, 125 Ky. 684, 102 S.W. 278, 12 L. R. A., N. S., 433; Chandler v. Seattle, 80 Wash. 154, 141 P. 331; Forrest City v. Bank of Forrest City, 116 Ark. 377, 172 S.W. 1148; Edwards v. City of Cheyenne, 19 Wyo. 110, 114 P. 677, 682, 122 P. 900; Clark v. City of Los Angeles, 160 Cal. 31, 116 P. 722; Seymour v. City of Tacoma, 6 Wash. 138, 32 P. 1077; Maxcy v. Oshkosh, 144 Wis. 238, 128 N.W. 899, 1138, 31 L. R. A., N. S., 787; Linn v. Omaha, 76 Neb. 552, 107 N.W. 983; People v. Seaman, 59 A.D. 76, 69 N.Y.S. 55; Dick v. Scarborough, 73 S.C. 150, 53 S.E. 86; Morse v. Granite County, 44 Mont. 78, 119 P. 286; Jack v. Grangeville, 9 Idaho 291, 74 P. 969; Ostrander v. City of Salmon, 20 Idaho 153, 117 P. 692.)

MORGAN, J., RICE, J. Rice, J., Morgan, C. J., concurring. BUDGE, C. J., Dissenting.

OPINION

MORGAN, J.

It appears from the pleadings and from a stipulation of facts, submitted to the district court in lieu of evidence, that the city council of Idaho Falls passed an ordinance declaring it to be necessary and advisable for the city to incur an indebtedness, and to issue bonds, in the sum of $ 35,000, for the purpose of providing necessary funds to pay the cost of acquiring an adequate electric light and power plant "by enlarging, extending, repairing, altering and improving" the plant it owned. Pursuant to the ordinance an election was held which resulted in favor of the indebtedness being incurred and the bonds being issued for the purpose above stated.

This action was commenced by a taxpayer to procure an injunction restraining the city, its officers and agents, from consummating the issuance and sale of the bonds. A judgment of dismissal was entered from which this appeal is prosecuted.

The one question presented is as to the right of the city to issue and sell bonds to raise funds for the purpose of providing an adequate electric light and power plant by enlarging, extending, repairing, altering and improving one it now owns.

The power of municipalities to issue bonds must be found in a legislative enactment. Such an enactment is a grant of authority from the state to the municipality and must be construed with strictness against the grantee. The rule is thus stated in Dillon on Municipal Corporations, 5th ed., vol. 1, sec. 237: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation,--not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. . . . " (State v. Superior Court, 93 Wash. 267, 160 P. 755, L. R. A. 1917B, 354; City of Independence v. Cleveland, 167 Mo. 384, 67 S.W. 216; State v. Temple, 99 Neb. 505, 156 N.W. 1063; Sharkey v. City of Butte, 52 Mont. 16, 155 P. 266; People v. Western etc. Traction Co., 214 N.Y. 526, 108 N.E. 847; Farwell v. City of Seattle, 43 Wash. 141, 10 Ann. Cas. 130, 86 P. 217; State v. Wilder, 200 Mo. 97, 98 S.W. 465; Boise City v. Boise Artesian H. & C. Water Co., 186 F. 705, 108 C.C.A. 523.)

The law of this state which grants to cities and villages authority to issue bonds in cases of this kind is to be found in Rev. Codes, sec. 2315. That section has been frequently amended since the codification of our laws in 1908, and the portion of it relating to waterworks and light and power plants, as it was prior to the 1917 amendment, appears in Sess. Laws 1915, chap. 44, p. 130, as follows:

"Every city, town or village, incorporated under the laws of the Territory of Idaho or of the State of Idaho shall have power and authority to issue municipal coupon bonds in a sufficient amount to acquire, by purchase or otherwise, a waterworks plant for such municipality and a water supply therefor.

"Every city, town or village, incorporated under the laws of the Territory of Idaho or of the State of Idaho, shall have power and authority to issue municipal coupon bonds in a sufficient amount to acquire, by purchase or otherwise, a light and power plant for such municipality."

Sec 2315 was...