Consumers Coal Company v. City of Lincoln

• Decision Date: 19 July 1922
• Docket Number: 22549
• Citation: 189 N.W. 643,109 Neb. 51
• Parties: CONSUMERS COAL COMPANY ET AL., APPELLANTS, v. CITY OF LINCOLN ET AL., APPELLEES
• Court: Nebraska Supreme Court

189 N.W. 643

109 Neb. 51

CONSUMERS COAL COMPANY ET AL., APPELLANTS, v. CITY OF LINCOLN ET AL., APPELLEES

No. 22549

Supreme Court of Nebraska

July 19, 1922

APPEAL from the district court for Lancaster county: ELLIOTT J CLEMENTS, JUDGE. Reversed, with directions.

REVERSED.

Field Ricketts & Ricketts, for appellants.

C Petrus Peterson and Charles R. Wilke, contra.

Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ., REDICK, District Judge.

OPINION

REDICK, District Judge.

This action is brought to enjoin the city of Lincoln from maintaining and operating a public market for the purchase and sale of coal and wood, and the allegations of the petition are substantially as follows: After stating the municipal character of the defendant as a city of the first class, and the official character of the other defendants as mayor and council thereof, it is alleged that on the 15th day of August, 1921, the mayor and council of said city duly passed an ordinance providing for the organization and operation of a fuel yard consisting of wood and coal, to be conducted under the management and control of the city for the purpose of purchasing coal and wood at remote points of supply, having it shipped to the city of Lincoln and sold at retail to the inhabitants thereof; that there was no actual or threatened shortage in the supply of fuel, nor was there any necessity or emergency which demanded that the city of Lincoln should engage in the retail fuel business; that said business is being conducted by the use of public moneys raised by taxation, and that the defendant city threatens to continue said business permanently. The plaintiffs are engaged in the retail fuel business and other merchandising in the city of Lincoln, and on that account and as taxpayers bring this action.

The claim of the plaintiffs is that there is no authority of law permitting the city of Lincoln as a municipal corporation to establish a coal and wood-yard, and that the ordinance purporting to do so is ultra vires. The defendants separately demurred to the petition, which demurrers were sustained, and the plaintiffs refusing to amend, but electing to stand on the petition, the case was dismissed and is now here on appeal by the plaintiffs alleging error in sustaining the demurrers.

Two questions are submitted for decision: First. Is the establishment and operation of a municipal coal and wood yard for the sale of those commodities at retail to the inhabitants of the city a public use for which tax money may be employed? Second. Has the city council of the city of Lincoln power to establish a municipal coal and wood-yard under a legislative act or under its charter as adopted under section 2, art. XIa of the Constitution?

The first question has been answered both ways: In the affirmative are the cases of Laughlin v. City of Portland, 111 Me. 486, 90 A. 318, and Jones v. City of Portland, 113 Me. 123, 93 A. 41, affirmed on appeal, 245 U.S. 217. These cases all involve the validity of the same statute expressly granting to the city of Portland the power to establish a permanent wood, coal and fuel-yard. Holton v. City of Camilla, 134 Ga. 560, 68 S.E. 472. See, also, Central Lumber Co. v. City of Waseca, 188 N.W. 275, following the Maine cases. In the negative are: Opinion of Justices, 150 Mass. 592, 24 N.E. 1084, and Opinion of Justices, 155 Mass. 598, 30 N.E. 1142, and Baker v. City of Grand Rapids, 142 Mich. 687, 106 N.W. 208, in which the Massachusetts cases were followed. In these cases, however, it was held that for the relief of the poor and in cases of emergency, while it lasted, the city could purchase and sell to its citizens who could not otherwise procure the same. Upon the same principles it is held that the manufacture and sale of ice is not a public purpose. Union Ice & Coal Co. v. Town of Ruston, 135 La. 898, 66 So. 262; State v. Orear, 277 Mo. 303, 210 S.W. 392; State v. Port of Seattle, 104 Wash. 634, 177 P. 671.

Metropolitan cities in this state have been granted the power to maintain municipal coal yards (Laws 1917, ch. 87, sec. 4 1/2), thus establishing the legislative view that it is for a public purpose, and while the final determination of that question is for the courts, the legislative expression upon the subject is of great weight. This principle and a consideration of the cases above cited lead us to adopt the reasoning in those cases which hold that a tax imposed to support a municipal fuel-yard is for a public purpose, and not contrary to any limitation on the taxing power.

The determination of the second question requires the construction of the constitutional provision permitting cities to form their own charters, the charter so formed by the city of Lincoln, and the legislation upon the particular subject under discussion.

We are requested by appellees in their brief "to state clearly and definitely the effect of the home rule charter provisions of our own Constitution," and "the effect of the action of the electorate of the city of Lincoln in using in its charter the provision for vesting all legislative power in the council." We shall attempt to do this in so far as it is found necessary for the disposition of this case; to exceed that limit, though the temptation is most alluring, would unduly extend this opinion.

Let us first set out the provisions and enactments to be construed: Section 2, art. XIa of the Constitution is as follows: "Any city having a population of more than five thousand (5,000) inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and Laws of this state." Then follow provisions for ratification by the electors, and that 60 days thereafter it shall "become the charter of said city, and supersede any existing charter and all amendments thereof."

We have recently held in Schroeder v. Zehrung, 108 Neb. 573, 188 N.W. 237, that "a city may enact and put into such charter any provisions for its government that it deems proper, so long as they do not run contrary to the Constitution or any general statute."

The charter ordained by the city of Lincoln under the above authority consists of an adoption of the legislative charter then existing, with a few merely verbal changes, and contains the following:

"Art. II, sec. 1. Without denial or disparagement of other powers, held under the Constitution and Laws of the state, the city of Lincoln shall have the right and power:"

"13. Inspection of Weights, Hay, etc. To provide for the inspection and weighing of hay and grain, and coal, the measuring of wood and fuel to be used in the city, and to determine the place or places of the same, and to regulate and prescribe the place or places of exposing for sale hay, coal and wood."

"50. General Welfare. To make all such ordinances, by-laws, rules and regulations not inconsistent with the laws of the state as may be expedient, in addition to the special powers in this article enumerated, maintain the peace, good government, and welfare of the city, its trade, commerce and manufactures."

"Art. IV, sec. 8. The council shall have, possess and exercise, by itself or through such methods as it may provide, all the executive, legislative and judicial powers and duties."

"Art. VIII, sec. 11. The city shall have power to purchase, construct and otherwise acquire, own and operate gas and electric plants and properties for the manufacture and distribution of gas, heat and electricity for the purpose of supplying the city and the inhabitants thereof with such service and utilities; and to purchase, lease, construct or otherwise acquire, own and operate street railways and telephone plants, lines and systems, and any and all other public service plants and properties, for the purpose of supplying the city and the inhabitants thereof with such service and public utilities."

Section 5195, Rev. St. 1913, provides: "Any city of the first * * * class * * * shall have the power and is hereby authorized to establish and maintain a heating or lighting system for such city."

What then is the nature and extent of the power granted by the Constitution? Without doubt it invested the electorate of the city within the corporate limits with all the powers possessed by the electorate of the state consistent with and subject always to the Constitution and Laws of the state; but necessarily with the restriction that such powers might be exercised only "for its own government," i. e., in matters appertaining to municipal affairs. Within the limitations and restrictions stated, the city has been well said by Justice Brewer to be "an imperium in imperio. Its powers are self-appointed and the reserved control existing in the general assembly does not take away this peculiar feature of its charter." St. Louis v. Western Union Telegraph Co., 149 U.S. 465, 37 L.Ed. 810, 13 S.Ct. 990. It must be borne in mind, however, that what may be done does not foreclose the question of what has been done.

Appellant cites State v. Missouri & Kansas Telephone Co., 189 Mo. 83, 88 S.W. 41. The Constitution of the state of Missouri permits a city to "form a charter for its own government, consistent with and subject to the Constitution and Laws of this state"--language identical with our own--and in discussing the nature of the power so granted, Valliant, J., said (p. 99):

"A charter framed under that clause of the Constitution within the limits therein contemplated has the force and effect equal to one granted by an act of the legislature. But it is not every power that may be essayed to be conferred of the city by such a charter that is of the same force and effect as if it were conferred by an act of the general assembly, because the Constitution does not confer on the city the...