Jensen v. Town of Afton

• Decision Date: 16 November 1943
• Docket Number: 2273
• Citation: 143 P.2d 190,59 Wyo. 500
• Parties: L. C. JENSEN, as Town Clerk of the Town of Afton, Plaintiff and Appellant, v. TOWN OF AFTON, a body politic and corporate, BEN NIELD, as Mayor of the Town of Afton, and ORIN JENKINS, C. S. WRAY, G. A. NEWSWANDER and S. T. MERRITT, as Members of and constituting the Town Council of the Town of Afton, Defendants and Respondents
• Court: Wyoming Supreme Court

143 P.2d 190

59 Wyo. 500

L. C. JENSEN, as Town Clerk of the Town of Afton, Plaintiff and Appellant, v. TOWN OF AFTON, a body politic and corporate, BEN NIELD, as Mayor of the Town of Afton, and ORIN JENKINS, C. S. WRAY, G. A. NEWSWANDER and S. T. MERRITT, as Members of and constituting the Town Council of the Town of Afton, Defendants and Respondents

No. 2273

Supreme Court of Wyoming

November 16, 1943

Appeal from District Court, Lincoln County; H. R. Christmas, Judge.

Action for declaratory judgment by L. C. Jensen, Clerk of the Town of Afton, against the Town of Afton and others. From a judgment for defendants, plaintiff appeals.

Reversed with instructions.

Reversed.

For the plaintiff and appellant there was a brief and oral argument by R. Dwight Wallace of Evanston, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

Municipal Corporation possesses the following powers: First, those granted by express words; second those necessarily implied in the powers expressly granted; third, those essential to the accomplishment of the declared objects: Dillon on Municipal Corporations, 5th Ed., Sec. 237; Whipps v. Town of Greybull, 109 P. 2d 807. Incorporated cities in Wyoming are given express power to establish, maintain and regulate electric light plants: 22-1605, W. R. S. 1931. The law authorizes the town to issue bonds, prescribing the terms and conditions and provides that no bonds shall be issued unless approved by the people at a bond election: 22-1605, W. R. S 1931. Section 22-1608 provides that the bonds shall be sold to the highest bidder after advertisement. The proposed issuance of bonds as set out in Ordinance No. 121 violates the procedure set up, Section 22-1601. Authority to issue revenue bonds to acquire a public utility is not implied: 44 C. J. 1177, § 4141. The granting of implied power should be merely for the purpose of effectuating powers granted by the legislature and it is necessary that some weight be given to legislative intent. Whipps v. Greybull, supra. Authority to issue bonds can be conferred only by language which leaves no reasonable doubt of an intention to grant it: McQuillan Municipal Corporations, 2nd Ed. Vol. 6, § 2438, p. 155; Chickasha v. Foster, 48 P. 2d 289; Kaw Valley v Kansas City, 239 P. 760 (Kansas); Keel v. Pulte, 10 S.W.2d 694 (Texas). Municipal corporations are prohibited from, in any manner, creating an indebtedness in excess of two per cent of the assessed valuation: Article 16, Section 5, Constitution of State of Wyoming and of Section 22-1603, W. R. S. 1931; 72 A. L. R. 687, 96 A. L. R. 1385; 124 A. L. R. 1459.

For the defendants and respondents there was a brief by Ivan S. Jones of Kemmerer and Pershing, Bosworth, Dick & Dawson, Winston S. Howard of Denver, Colorado, and oral argument by Mr. Howard.

POINTS OF COUNSEL FOR RESPONDENTS

It is not necessary to imply any grant of power because the power grant is express and explicit. The doctrine of strict construction applied to grants of power does not apply to the mode or method adopted in carrying out the power: Dillon, Municipal Corporations, 5th Ed., Sections 237, 239, 369; McQuillin's Law of Municipal Corporations 2nd Ed., Section 367; Whipps v. Town of Greybull, 100 P. 2d 805; Lakota Oil & Gas Co. v. City of Casper, 166 P. 2d 861, 867. The test of the Town's action in providing for the financing of the purchase of the utility by the issuance of revenue bonds is its reasonableness. The method of financing public utility acquisitions through revenue bonds is a reasonable method of financing: Arnold v. Bond, 34 P. 2d 28. Municipalities have the power to pledge their income from revenue-producing business enterprises: Dillon, Section 195; McQuillin, Section 390, Section 2337; East St. Louis & The Treasurer of East St. Louis v. United States ex rel. Zebley, 110 U.S. 321; Crouch v. City of McKinney, 104 S.W. 518; City of Yale v. Excise Board of Payne County, 10 P. 2d 403; McQuillin, Section 390. The income of a public body may be used for other than current expenses and may be pledged to secure bonds: Arnold v. Bond, 34 P. 2d 28. The principle that a grant of power to acquire a utility, without specification of the means or mode of acquisition, carries with it the power to acquire by the issuance of revenue bonds, is recognized in other jurisdictions: Lang v. City of Cavalier, 228 N.W. 819; Shields v. Loveland, 218 P. 913; Barnes v. Lehigh City, 74 Utah 321, 279 P. 878; Utah Power & Light Co. v. Provo City, 94 Utah 203, 74 P. 2d 1191; Utah Power & Light Co. v. Ogden City, 95 Utah 161, 79 P. 2d 61. The proposed revenue bonds are not debts within constitutional and statutory limitations: Utah cases, supra; Shields v. Loveland, supra; 72 A. L. R. 688. The "Special Fund Doctrine" recognized: Arnold v. Bond, 34 P. 2d 28. An agreement to pay for election light from current revenues incurs no indebtedness: Scranton Electric Co. v. Old Forge, (Pa.) 163 A. 154. The acquisition of the physical plant of the private corporation now owning and operating the Electric Utility serving the Town of Afton, in the manner proposed, is not unconstitutional: Walker v. City of Cincinnati, 21 Ohio St. 14, 54; Day v. Buckeye Drainage District, 237 P. 636, 638; Wheeler v. Philadelphia, 77 Pa. St. 338; People ex rel. Murphy v. Kelly, 76 N.Y. 475.

There was a brief by Wilfred O'Leary and John C. Pickett of Cheyenne as Amici Curiae and a brief by Louis J. O'Marr, Attorney General; John J. McIntyre, Deputy Attorney General; and Arthur Kline, Asst. Attorney General, in behalf of the Public Service Commission.

POINTS OF COUNSEL FOR PUBLIC SERVICE COMMISSION

To give a municipality the power to make its own electric rates is to upset the long established policy of this State which created an agency, the Public Service Commission, to determine and fix all utility rates, whether the utility was publicly or privately owned and operated. The utility act has never been changed. It has been in existence since 1915. The Legislature has made no amendments which diminish the exclusive jurisdiction of the Commission to fix rates: Subdivision (c), Secs. 94-101, 94-111, 94-116, 94-120, W. R. S. 1931.

POINTS OF AMICI CURIAE

No controversy between the parties is presented as contemplated by the Uniform Declaratory Judgment Act. Plaintiff does not allege any special interest in the proceedings. It is not alleged that plaintiff will suffer any damage; nor that he is prosecuting the action as a taxpayer. There is no liability on the part of the Town Clerk in the performance of his statutory duties. Public officers, when acting in good faith within the scope of their authority, are not liable in private actions: 46 C. J. p. 1042, Section 326; Erskine v. Hohnbach, 16 Wall. 613, 20 L.Ed. 745. The Town Clerk was not required to exercise any judgment or discretion but was only required to perform ministerial acts: City of Casper v. Joyce, et al., 54 Wyo. 198, 88 P. 2d 467; Commercial Trust Company v. Burch, 267 F. 907; American Jurisprudence, Vol. 43, p. 73, Section 256; Willett v. Young, 47 N.W. 990 (Iowa); Hupe v. Sommers, 129 P. 136 (Kans.); Sandborn v. Neal, 7 Minn. 126; Robbins County v. Cook, 173 N.W. 445. The Uniform Declaratory Judgments Act of Wyoming, 89-2401 to 89-2416, Wyoming Revised Statutes, 1931, expressly excludes the consideration by the Court of any matters not representing an actual controversy. There must be an actual or potential controversy between the parties, and common interests: Treges v. Modesto Irrigation District, 164 U.S. 179, 41 L.Ed. 395, 17 S.Ct. 52; State ex rel. Mellott v. Wyandot County, 279 P. 1 (Kans.); Reese v. Adamson, 146 A. 262 (Pa.); County Board of Education v. Borgen, 275 N.W. 92 (Minn.); Coke v. Shanks, 273 S.W. 552; Holt v. Custer County, et al., 243 P. 811 (Mont.). The question for determination is one of legislative intent as shown by the history of legislation and action and non-action of the Legislature in certain instances to adopt Revenue Bond Acts. The Court may take judicial notice of that which has a bearing on legislative intent: People v. Shawyer, 30 Wyo. 366, 222 P. 11; Bunton v. Rock Springs Grazing Association, 215 P. 244, 29 Wyo. 461. The Legislature in 1933 saw fit not to incorporate any authority empowering municipalities to acquire facilities by the issuance of bonds, and in the very next session, a bill was introduced to authorize municipalities to acquire power facilities by issuing revenue bonds, but in that session and in every session thereafter, the Legislature has consistently refused to adopt such legislation: 59 Corpus Juris, p. 1042, Section 620. In determining the meaning of a particular statute, resort may be had to the established policy of the Legislature: United States v. Sweet, 38 S.Ct. 193, 245 U.S. 563; Feitler v. United States, 34 F.2d 30; Stockton Plumbing & Supply Co. v. Wheeler, 229 P. 1020 (Calif.); Griswold v. Griswold, 129 P. 560, 23 Colo.App. 365; Hastings v. Rathbone, 188 N.W. 960 (Iowa); Morril v. Bentley, 126 N.W. 155 (Iowa).

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

The review of a declaratory judgment rendered by the District Court of Lincoln County is asked by this direct appeal proceeding. The action was brought in the court just mentioned by the appellant, L. C. Jensen as Town Clerk of the Town of Afton in this state, hereinafter usually referred to as the "plaintiff" or the "Clerk", against the town of Afton subsequently generally mentioned as the "Town" and its officers, Ben Nield, the Mayor, and named members of and "constituting the town council of" said town as defendants and now the respondents here.

Summarized the material facts needful to be at this time kept in mind are:

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