Dietrich v. City of Deer Lodge

• Decision Date: 09 June 1950
• Docket Number: No. 8975,8975
• Citation: 218 P.2d 708,124 Mont. 8
• Parties: DIETRICH v. CITY OF DEER LODGE et al.
• Court: Montana Supreme Court

Page 708

218 P.2d 708

124 Mont. 8

DIETRICH v. CITY OF DEER LODGE et al.

No. 8975.

Supreme Court of Montana.

Submitted April 12, 1950.

Decided May 10, 1950.

As Amended May 16, 1950.

Rehearing Denied June 9, 1950.

Murphy, Garlington & Pauly, Missoula. J. M. Dietrich, Jr., Deer Lodge, for appellant.

J. M. Dietrich, Jr., Deer Lodge and H. C. Pauly, Missoula, argued the case orally for appellant.

S. P. Wilson, Deer Lodge, for respondents.

S. P. Wilson, Deer Lodge, argued the case orally for respondents.

Arnold H. Olsen, Atty. Gen., and Robert L. Word, Jr., Special Asst. Atty. Gen., argued the case amici curiae.

METCALF, Justice.

Suit in equity to enjoin the sale of bonds of the city of Deer Lodge, Montana, in the amount of $40,000. Upon the filing of the complaint the district court of Powell county issued a temporary restraining order against defendants and directed that, on a day certain, they show cause why the injunctive order should not be made permanent. Defendants interposed a general demurrer to the complaint and a motion to quash the injunctive order. Both the demurrer and motion were allowed, whereupon plaintiff elected to stand on his complaint and suffered judgment of dismissal to be entered against him, from which judgment he has taken this appeal.

The suit is by J. M. Dietrich, plaintiff, against the defendants, City of Deer Lodge, the mayor, city clerk and the eight councilmen of the city.

The complaint avers: The defendant city of Deer Lodge is a duly constituted political subdivision of the state of Montana and the other ten named defendants are the officials of the city;

Main street is a duly established public street and thoroughfare in the city and constitutes a portion of U. S. Highway No. 10 as it extends through the business section of the defendant city along which are located substantially all of the retail stores and business establishments of the city, situate on property abutting and fronting on such street;

Plaintiff is a freeholder paying taxes on real and personal property owned by him within the limits of the city situate approximately five blocks distant from Main street, none of which property abuts or fronts on Main street;

U. S. Highway No. 10 is a main transcontinental highway that has been given certain specifications by the Montana state highway commission and by the public roads administration of the federal works agency of the United States;

Main street as now established and constructed does not conform to specifications prescribed by the state highway commission and by the public roads administration of the federal works agency of the United States relating to U. S. Highway No. 10.

To make Main street conform to such specifications, it was proposed that under federal aid project No. FI-184(10) the street be improved by widening and repairing it with asphaltic concrete at a total cost of approximately $156,000, the city to contribute 25% thereof and the remaining 75% to be defrayed, paid out and liquidated by the United States Government through its public roads administration and the state of Montana through its state highway commission.

On order to carry out the arrangement, bonds were issued under the provisions of section 11-2301 et seq., R.C.M.1947. The plaintiff contends the contemplated improvement can be achieved only by the compliance with the special improvement district statutes, R.C.M.1947, sections 11-2201 to 11-2281, inclusive, secs. 5225-5277.5, R.C.M.1935, Ch. 149, Laws of 1943 and Ch. 260, Laws of 1947.

The sole question is whether or not in this state a municipality can issue general obligation bonds for the purpose of paving and widening its streets.

There are some fundamental precepts of long standing in this jurisdiction that govern the creation of indebtedness by a municipal corporation and guide us in the determination of this question.

In City of Helena v. Helena Light & R. Co., 63 Mont. 108, 207 P. 337, 339, this court declared: 'A city is but a political subdivision of the state for governmental purposes, owing its very existence to the legislative will, and capable of exercising only such powers as are granted, either directly or by necessary implication * * * The streets of a city are public highways (section 1612, R.C.M.1921), and though the city is charged with the duty of keeping them in repair, and the cost of maintenance is imposed upon the city, nevertheless jurisdiction over them is primarily in the state, and the city acts with respect to them subject to the general laws of the state.'

In State ex rel. Great Falls Housing Authority v. City of Great Falls, 110 Mont. 318, 328, 100 P.2d 915, 920, this court quoted with approval from McClintock v. City of Great Falls, 53 Mont. 221, 163 P. 99, saying: 'A city of this state is a creature of statute. Independently of legislation it cannot exist--cannot exercise and functions whatever.' (Citing many cases.)

The legislature has granted to the city or town councils the powers enumerated in R.C.M.1947, sections 11-901 to 11-989, specifically granting powers for many purposes. Other powers are exercised in accordance with other provisions of Title 11, R.C.M.1947.

The authority of the city or town council to contract an indebtedness on behalf of the city or town by borrowing money or issuing bonds is found in R.C.M.1947, section 11-966, wherein the following purposes are enumerated: 'Erection of public buildings, construction of sewers, bridges, docks, wharves, breakwaters, piers, jetties, moles, waterworks, lighting plants, supplying the city or town with water by contract, the purchase of fire apparatus, the construction or purchase of canals or ditches and water rights for supplying the city or town with water, and the funding of outstanding warrants and maturing bonds * * *'.

R.C.M.1947, section 11-937, authorizes the establishment of a jail; 11-947 a detention hospital; 11-955 a workhouse; 11-905 grants the power 'To build or hire all necessary buildings for the use of the city or town * * *'. But it is to section 11-966 that we must turn to find the authority of the city or town to incur an indebtedness or issue bonds for the erection of public buildings.

Likewise, section 11-909 gives the city or town council the power to provide for lighting and cleaning streets, requires snow removal and regulates the removal of ashes, garbage and other offensive matters. But the legislature has only granted authority for issuance of bonds for street lighting purposes and has made a special provision in section 11-909 for the cost of garbage removal.

Certain sections of the statute authorize the city to perform certain acts and specifically authorize the incurring of indebtedness therefor. For example, by section 11-988 the legislature granted the city or town council authority 'to contract an indebtedness * * * by borrowing money or issuing bonds for the construction, purchase or development of an adequate supply of natural gas,' etc.

In section 11-1008 the city or town is 'authorized to establish and maintain a public bathing place within said city or town, and to defray the cost and expense of maintaining said public bathing place, said city or town is hereby authorized and empowered to contract an indebtedness, upon behalf of said city or town, upon the credit thereof, by borrowing money or issuing bonds * * *'.

In section 62-201 the legislature has granted the city or town council the power 'To contract an indebtedness on behalf of a city or town, upon the credit thereof, by borrowing money or issuing bonds for the purpose of purchasing and improving lands for public parks and grounds; and/or for procuring by purchase, or construction, or otherwise, swimming pools, athletic fields, skating rinks, playgrounds, museums, a golf course, a site and building for a civic center, a youth center,' etc.

By section 11-986 the city or town council is granted the power to acquire lands for landing fields or parking areas of aircraft. This section was originally enacted in 1927 by Chapter 20, Laws of 1927. But in order to permit the cities and towns to borrow money and issue bonds for the acquisition of lands and equipment and construction of buildings at airports, a subsequent legislature deemed it necessary to enact legislation expressly authorizing such actions. Sec. 1-804, R.C.M.1947, enacted as sec. 4, Ch. 108, Laws of 1929.

This court has repeatedly stated that unless the power is vested in the municipality by express law or is necessarily implied or essential to the accomplishment of the purpose of the municipality the presumption is against the exercise by the city of any such powers. Stephens v. City of Great Falls, 119 Mont. 368, 175 P.2d 408; State ex rel. Housing Authority v. City of Great Falls, supra; State ex rel. Gebhardt v. City Council of Helena, 102 Mont. 27, 55 P.2d 671; City of Bozeman v. Merrell, 81 Mont. 19, 261 P. 876; Wibaux Improvement Co. v. Breitenfeldt, 67 Mont. 206, 215 P. 222; State ex rel. City of Billings v. Billings Gas Co., 55 Mont. 102, 173 P. 799; Sharkey v. City of Butte, 52 Mont. 16, 155 P. 266; Shapard v. City of Missoula, 49 Mont. 269, 141 P. 544; Helena Light & R. Co. v. City of Helena, 47 Mont. 18, 130 P. 446.

The inquiry must always be: '(1) Whether there is an express grant; (2) whether there is a grant by necessary implication; or (3) whether the power in question is indispensable to the accomplishment of the object of the corporation.' Milligan v. City of Miles City, 51 Mont. 374, 383, 153 P. 276, 278, L.R.A.1916C, 395.

'The reason for the rule is that it must be presumed that the state has granted in clear and unmistakable terms all that it intended to grant at all.' State ex rel. Quintin v. Edwards, 40 Mont. 287, 106 P. 695, 699, 20 Ann.Cas. 239.

Section 11-906 gives the city or town council the power 'To lay out * * * pave, or otherwise improve streets * * *' There is no mention of the power to incur indebtedness or issue...