Burkett v. Youngs

• Decision Date: 18 May 1938
• Citation: 199 A. 619
• Parties: BURKETT, Atty. Gen., v. YOUNGS et al., City Council.
• Court: Maine Supreme Court

199 A. 619

BURKETT, Atty. Gen.,

v. YOUNGS et al., City Council.

Supreme Judicial Court of Maine.

May 18, 1938.

On Certification from Supreme Judicial Court, Penobscot County, at Law.

Petition by Franz U. Burkett, Attorney General, on the relation of a taxpayer and voter of Bangor, for a writ of mandamus to coerce Frank O. Youngs and others, composing the City Council of Bangor to refer, for the local electorate's acceptance or rejection the general appropriation resolve which the council passed for the fiscal year 1938. On certification to the chief justice. Peremptory writ denied, and petition dismissed.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Pattangall, Goodspeed & Williamson, of Augusta, for plaintiff. James B. Mountaine and Charles P. Conners, both of Bangor, and Cook, Hutchinson, Pierce & Connell, of Portland, for defendants.

DUNN, Chief Justice.

This mandamus proceeding was instituted by the Attorney General, upon the relation of a taxpayer and voter of Bangor, to coerce the respondents, who compose the city council of Bangor, to refer, for the local electorate's acceptance or rejection, the general appropriation resolve which the council passed for the fiscal year 1938.

The majority of the council members allegedly refused a petition for a referendum.

Procedure has been this:

On application for the writ, rule issued to the adverse parties, to appear and show cause, if they could, why the prayer of the relator should not be granted.

Service was duly proven.

The respondents conceded that the petition would, in respect to form, as the antithesis of, and in opposition to substance, justify the issuance of an alternative writ.

In mandamus, the alternative writ corresponds to a common-law declaration in an ordinary action., and is usually deemed the first pleading in the cause. By the writ, the respondent is called upon to perform the act sought to be enforced, or, by way of answer, commonly termed a return, aver why it should not be done.

The concession with regard to premise for the alternative writ having been made, thereupon the parties stipulated that whether the issue for the peremptory writ should be maintained might be determined on the application and answers, implemented by evidence of relevancy and legal admissibility.

The peremptory writ requires doing the thing absolutely.

At the time for hearing on the merits, agreement as to the facts was stated.

Upon that, the case was, the parties consenting, certified to the Chief Justice. Rev. St. c. 91, § 9; chapter 116, § 17. See, in analogy, Welch v. Sheriff, 95 Me. 451, 50 A. 88.

Bangor's new city charter vests certain powers of government in a city council. Priv. & Sp.Laws, 1931, c. 54; Priv. & Sp. Laws 1935, c. 49. The members, nine in all, constitute the municipal officers of the city; they have the powers and authority of municipal officers, as well as those of mayors of cities.

The city council appoints the superintending school committee, and fills vacancies in membership; it chooses annually a chief administrative officer, called a city manager.

Agreeably to a charter provision, the school committee furnished the city council with an estimate, inclusive of the particulars, the details and all the incidents of the cost of supporting the existing grade schools, as well as the high school and the evening school, for the year 1938.

The city manager submitted his budget for expenses and improvements; he indicated the extent to which, to provide revenue in addition to that expected from other sources, there should be, to defray both estimate and budget, exercise of the power of taxation.

The resolve, as passed by the city council, is as follows: "Resolve, Appropriation for the Municipal.

Year of 1938. "By the City Council of the City of Bangor:

"Resolved, That the sum of Eight Hundred Eighty-five Thousand Seven Hundred & fifty-four dollars ($885,754.00) be raised by assessments upon the polls and estates of the inhabitants of the City of Bangor and upon the estates of non-resident proprietors within said city for the present municipal year and the same is hereby appropriated in addition to sums otherwise provided, the amount for each purpose being specified in the schedule hereto annexed —to wit:"

The schedule is, for present purposes, in these words and figures:

"Summary

Budget 1938

General Government......................$ 68,062

Protection of Persons & Prop..........197,137

Health Department.............................13,038

Public Works....................................161,865

All Charities......................................125,304 Education....................................366,790

Library..........................................20,000

Recreation.......................................1,800

Unclassified..................................26,175

Public Service Enterprises..........170,560

Cemeteries......................................2,900

Interest..........................................39,523

Municipal Indebtedness................20,000

Bangor Bridge District....................6,000

Municipal Airport...................................

Notes...............................................7,500

Total.................................1,226,654

Revenue Received...........................

Estimated Revenue.............340,900

885,754

"Amount to be provided for by assessment upon the polls and estates of the in habitants of Bangor and up on the estates of non resident proprietors for the expenses of the City for the fiscal year..........................1938 —885,754."

Some of the appropriations were, under State law, obligatory on the city; for illustration, common schools. The Legislature defines, in minimum requirement, what amount of money must be raised and expended, in such connection. Rev.St. c. 19, § 16; Piper v. Moulton, 72 Me. 155, 166; Farmington v. Miner, 133 Me. 162, 175 A. 219.

The proportion of the State tax, as determined by the Legislature, which each city, town and plantation shall pay, respectively, is required to be added to the local taxes, assessed and collected locally, and paid to the State. Rev.St. c. 13, § 33, as amended by Pub.Laws 1933, Sp.Sess., c. 285, § 1; Priv. & Sp.Laws 1937, c. 102; Rowe v. Friend, 90 Me. 241, 38 A. 95. The county tax, too, is, by statute, for local assessment, commitment and collection. Rev.St. c. 13, § 68.

The Thirty-First Amendment to the Constitution of Maine is, in section 21, of this tenor:

"Sec. 21. The city council of any city may establish the initiative and referendum for the electors of such city in regard to its municipal affairs, provided that the ordinance establishing and providing the method of exercising such initiative and referendum shall not take effect until ratified by vote of a majority of the electors of said city, voting thereon at a municipal election. Provided, however, that the legislature may at any time provide a uniform method for the exercise of the initiative and referendum in municipal affairs."

The Legislature has not provided a uniform method for the exercise of the initiative and referendum in municipal affairs.

The initiative and referendum do not supersede city government, but are consistent with it. The city remains a governmental unit; even in instances of the rejection, on referendum, of submitted propositions, the city government, as such, would still function. However, the initiative and referendum may well be a means of obtaining, on the part of a city government, in the field of legislation, a sense of direct responsibility to the people. Munro, The Initiative, Referendum and Recall, p. 88.

The constitutional amendment employs, without definition, the expression "municipal affairs".

Hereon, this opinion will later say more.

The Bangor City Council established the initiative and referendum. The ordinance was ratified at a popular election on December 7, 1931. It appears to have been retained in 1935.

This right of initiative and referendum was necessarily restricted to "municipal affairs".

What are municipal affairs?

There are no well laid rules or principles by which to ascertain the answer to that question. McQuillin, Municipal Corporations, 2d Ed., § 194, citing Sapulpa v. Land, 101 Okl. 22, 223 P. 640, 35 A.L.R. 872; Browne v. New York, 241 N.Y. 96, 149 N. E. 211.

Municipal affairs, it has been said, comprise the internal business of a municipality. Fragley v. Phelan, 126 Cal. 383, 58 P. 923.

"The referendum as applied to municipal affairs affects only those ordinances or resolutions that are municipal legislation." State v. White, 36 Nev. 334, 136 P. 110, 50 L.R.A.,N.S., 195, note, at page 204; Long v. Portland, 53 Or. 92, 98 P. 149.

The city of Bangor is a territorial and political division of the State of Maine. Lovejoy v. Foxcroft, 91 Me. 367, 40 A. 141; Hone v. Water Company, 104 Me. 217, 71 A. 769, 21 L.R.A.,N.S., 1021. Purely of legislative creation, the municipality, as an instrument of government, a hand of the State, is always subject to public control through the Legislature. Thorndike v. Camden, 82 Me. 39, 19 A. 95, 7 L.R.A. 463; Bayville Village Corporation v. Boothbay Harbor, 110 Me. 46, 85 A. 300, Ann.Cas. 1914B, 1135; Frankfort v. Waldo Lumber Company, 128 Me. 1, 145 A. 241.

The city has, by delegation, a measure of ordinance power.

When, in 1834, the Legislature conferred the city charter, there was empowerment to ordain such acts, laws and regulations, not inconsistent with the Constitution and laws of the State, as needful for good, order therein. Priv. & Sp.Laws, 1833-34, c. 436.

In 1935, the Bangor City Council was specifically authorized to enact thirty or more regulatory ordinances. Priv. & Sp. Laws 1935, c. 14.

A city may not legislate without limit; it is subordinate to the State.

"As well might we speak of two centers in a circle as two sovereign powers in a state." Timlin, J., concurring, in State ex rel....