Hunke v. Foote

• Decision Date: 11 July 1962
• Docket Number: No. 9061,9061
• Citation: 84 Idaho 391,373 P.2d 322
• Parties: Donald HUNKE, Robert L. Drexler and Derald Wright, Plaintiffs and Respondents, v. Donald FOOTE, Karl Page, Phillip Leahy and Alex Creek, Councilmen of the City of Idaho Falls, Idaho, W. J. O'Bryant, Mayor of the City of Idaho Falls, Idaho, Defendants and Appellants.
• Court: Idaho Supreme Court

Page 322

373 P.2d 322

84 Idaho 391

Donald HUNKE, Robert L. Drexler and Derald Wright, Plaintiffs and Respondents, v. Donald FOOTE, Karl Page, Phillip Leahy and Alex Creek, Councilmen of the City of Idaho Falls, Idaho, W. J. O'Bryant, Mayor of the City of Idaho Falls, Idaho, Defendants and Appellants.

No. 9061.

Supreme Court of Idaho.

July 11, 1962.

George Barnard, Idaho Falls, for appellants.

Eugene Bush, Idaho Falls, for respondents.

KNUDSON, Justice.

This appeal is from a decision of the district court granting a peremptory writ of mandamus requiring appellants (defendants) as administrative officers, mayor and councilmen of the city of Idaho Falls (hereinafter referred to as City) to remove an electrical substation from an area zoned by the city ordinance as residential. Respondents (plaintiffs) are residents of and taxpayers in the immediate vicinity of such substation.

The City owned parcel of land involved is rectangular in shape and is situate in the northwest portion of Temple View Park, a subdivision of the City, upon which the City has for some time prior to 1955 maintained a water well and pump house.

By ordinance No. 852 enacted by the City in 1955, the area surrounding and including the City owned tract was zoned as 'R 1 Residence District' (specifically limited to residences).

Subsequent to September 1, 1960, and prior to the filing of this action (April 11, 1961) the City caused to be constructed upon the City owned tract, an electrical power substation which is to be used in part to distribute for sale electrical energy for power and light to private customers of the City. The substation consists of a large transformer, switch gear, 6 towers on steel legs with support structures placed in concrete.

Appellants admit that respondents' properties will be depreciated in value to some extent by the installation and use of the substation.

Although error has been assigned as to a number of the court's rulings and findings the principal question presented to and considered by the trial court and which is here for decision is whether the City is subject to and bound by its own zoning ordinance No. 852.

The validity of ordinance No. 852 is not questioned. Under its provisions the well and pump house, having been in existence on the subject property prior to the effective date of the ordinance, may be continued as non-conforming uses, but may not be enlarged. The ordinance also provides that an unauthorized or non-permitted use of property within the respective districts created thereunder, is declared to be a common nuisance and may be abated as such.

Appellants do not contend that the construction and maintenance of the electrical power substation which the City has caused to be erected is a use permitted under the terms of said ordinance within the area involved, but they do contend, inter alia, that the City is not bound by the provisions of said ordinance. In support of appellants' argument they cite Nehrbas v. Incorporated Village of Lloyd Harbor, 1 A.D.2d 1034, 152 N.Y.S.2d 28 and Washington Twp. v. Ridgewood Village, 26 N.J. 578, 141 A.2d 308. In each of these cases the court determined that the use sought to be restrained was a governmental function and therefore we do not consider them to be in point in this case since we are not here dealing with a governmental function.

The authority of the City to enact a zoning ordinance or to own and operate its own electric light and power plant and distribution system is not questioned. The ordinance specifically prohibits the use of any territory embraced in the district within which the substation has been constructed for anything but residential purposes as defined in the ordinance. In reliance upon the ordinance the district has been developed pursuant to its limitations and mandates. The City now proposes to destroy its own plan which it imposed upon the property holders of the district. We think that cannot be done.

It has long been generally recognized that while municipal corporations are primarily incorporated as political subdivisions of the state for the purpose of performing local governmental functions, they generally are authorized to and frequently do exercise two classes of power of which one is governmental while the other is referred to as proprietary. When operating in its proprietary capacity a municipal corporation is subject to the same burdens, responsibilities and liabilities as a private corporation or individual acting in the same capacity. (Eaton v. City of Weiser, 12 Idaho 544, 86 P. 541)

It is admitted the substation herein involved will be used largely to distribute for sale electrical energy for power and light to private customers of the City. In Eaton v. City of Weiser, supra, this Court had under consideration a city owned and operated electrical light system for the purpose of lighting its streets and selling to the inhabitants of the municipality electrical energy for lights, etc., and in determining the capacity in which the city was acting stated:

'The city was engaged in a private enterprise, namely, that of manufacturing and selling electric light to its inhabitants. Such an engagement or enterprise is not one of the public governmental duties of municipalities. Municipal ownership in the usual and common acceptation of that term must of necessity carry with it the same duty, responsibility, and liabilities that are imposed upon and attach to private owners of similar enterprises. If the city owns and operates an electric light system, and sells lights to its inhabitants, there is no reason why it should not be held to the same responsibility for injuries received on account of its negligent conduct of the business as would a private individual be who might be running an opposition plant in the same municipality and selling light to the citizens thereof.'

The applicable general rule is stated in 18 Am.Jur. 432, § 34, as:

'A city, in operating an electric plant to supply current to its inhabitants when authorized to do so, acts in its private, proprietary capacity and not in its public, governmental sphere, and, in the absence of a specific prohibition, it may exercise its rights and powers in the same manner and on the same footing as private individuals or corporations under the same circumstances.'

The general rule is also stated in 63 C.J.S. Municipal Corporations § 746, p. 32 as:

'In the functions comprising the second class, that is, in the exercise of its purely municipal or proprietary functions, or the doing of those things which relate to special or private corporate purposes, the corporation stands on the same footing with a private corporation, * * *.'

The decision in Eaton v. City of Weiser, supra, has been cited with approval many times and consistently followed by this Court. Boise Development Co., Ltd., v. Boise City, 30 Idaho 675, 167 P. 1032; Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651; Lundahl v. City of Idaho Falls, 78 Idaho 338, 303 P.2d 667, 61 A.L.R.2d 866; Gilbert v. Village of Bancroft, 80 Idaho 186, 327 P.2d 378.

The trial court's finding 'That in the operation and distribution of electrical power the City of Idaho Falls is acting in a proprietary capacity.' is correct. The City's rights, powers and privileges while acting in that capacity are tantamount to individuals or corporations engaged in the same functions.

In O'Brien v. Town of Greenburgh et al., 239 App.Div. 555, 268 N.Y.S. 173, the Court had under consideration a request by property owners to enjoin the defendant town and its town board from erecting a garbage incinerator upon a designated plot within its corporate limits in violation of its own zoning ordinance. The Court held that in disposing of garbage the defendants were acting in a proprietary capacity and were bound by the ordinance. The following are excerpts from the opinion:

'Briefly, the question presented is whether the town is precluded by its adopted ordinance from exercising the function of disposing of its garbage, as proposed by it, within the residence A district. In its present form, the question is novel and turns upon a proposition of law not briefed upon this appeal, and that is, whether the disposition of garbage and refuse constitutes a corporate or governmental function. If corporate, the plaintiffs are entitled to the relief sought, for the reason that in that capacity the town is bound equally with all other persons, whether individual or corporate, by the terms of its own ordinance. If governmental, the question of plaintiffs' rights may not be determined in advance of the construction and operation of the incinerator,...