Lakota Oil & Gas Co. v. City of Casper

• Citation: 116 P.2d 861,57 Wyo. 329
• Decision Date: 19 September 1941
• Docket Number: 2184
• Parties: LAKOTA OIL & GAS CO. v. CITY OF CASPER ET AL
• Court: Wyoming Supreme Court

116 P.2d 861

57 Wyo. 329

LAKOTA OIL & GAS CO. v. CITY OF CASPER ET AL

No. 2184

Supreme Court of Wyoming

September 19, 1941

ERROR to the District Court, Natrona County; JAMES H. BURGESS Judge.

Action by the Lakota Oil and Gas Company against the City of Casper and the New York Oil Company for a declaratory judgment. From a judgment dismissing the action, the plaintiff appeals.

Affirmed.

For the plaintiff in error, there was a brief by E. E. Enterline and Madge Enterline of Casper, Wyoming, Leonard, Street & Deinard of Minneapolis, Minnesota, and Sidney J. Kaplan of Washington, D. C., and oral argument by Mr. Hyman Edelman of Minneapolis, Minnesota.

The City of Casper granted a franchise for a gas utility, which was acquired by defendant, New York Oil Company. It contained a reservation by the city, under which it might purchase the gas plant at any time for the appraised value thereof. Twelve years later, the City gave notice of its election to purchase said plant, and invited plaintiff to submit a proposal for supplying gas to said city and the inhabitants thereof, and negotiated with plaintiff for a lease upon the gas plant which it expected to acquire from defendant corporation, and by the subsequent enactment of ordinances induced plaintiff to expend large sums of money to its detriment, in reliance upon said negotiations. On February 18, 1933, the Legislature enacted what is published as Chapter 78 of the Laws of that Session, Section 6 of which prohibits cities from commencing proceedings for the acquisition of utility property, unless such action be authorized at a special election called for that purpose. The fundamental question presented by plaintiff's petition for a declaratory judgment is the applicability of said enactment in restraint of the city's action in the exercise of its optional rights to purchase said gas plant. The trial court sustained a demurrer to plaintiff's amended petition, and plaintiff declining to further plead, the court rendered judgment dismissing its action, from which it prosecutes error. The court erred in sustaining defendants' demurrers. Pleadings under modern codes are liberally construed. Cone v. Ivinson, 4 Wyo. 203; Smith v. Gorsuch, 36 Wyo. 430; 49 C. J Sec. 106, p. 107; Chambers v. Hoover (Wash.) 13 P 466; Bullock v. Parsons (Wash.) 74 P.2d 289; Griffith v. Thrasher (Mont.) 26 P.2d 995; Sec. 5532, Wyo. Comp. Stat. 1920. Proceedings for the acquisition of the gas plant were started by the city prior to the enactment of Chapter 78 on February 18, 1933. Terry v. Texas Co. (Tex Civ. App.) 228 S.W. 1019; Solberg v. Oil & Gas Co. (Mont.) 235 P. 761; Wilson v. Clear (N. J.) 89 A. 1031; Goldenberg v. Murphy, 108 U.S. 162. Statutes are to be construed prospectively. Brewster v. Gage, 280 U.S. 329; Fullerton-Krueger Lbr. Co. v. Northern Pacific Railway Co., 266 U.S. 435. Exhibit "B" did not as a matter of law nullify prior proceedings by the city in the exercise of its option of purchase. Wigmore on Evidence, 3d Ed. Sec. 2431. An ordinance can be repealed only by another ordinance. Ashton v. Rochester, 14 N.Y.S. 855; State v. Swindell (Ind.) 45 N.E. 700; Borough v. Clayton, 196 A. 584; Elgin Co. v. Ry. Co., 160 Ill.App. 364; Junction City v. Webb, 23 P. 1073; Comm. v. Meyers, 139 A. 374; American Life Ins. Co. v. State (Ala.) 147 So. 168; People v. B. & O. S.W. R. Co. (Ill.) 8 N.E.2d 655; Noonan v. City of Portland (Ore.) 88 P.2d 808; Bishop v. City of Omaha, 130 Nebr. 162. Chapter 78, Laws 1933 is inapplicable, because prior to its adoption plaintiff acquired vested rights in the subject matter of the suit. 58 C. J. 159; Berkner v. Segal (Minn.) 209 N.W. 536; Frank v. Stratford-Handcock, 13 Wyo. 37. The city could enforce specific performance. Halloran Co. v. Heath (Utah) 258 P. 342; Dallas v. Gates (Ore.) 289 P. 497; 58 C. J. Sec. 19, p. 866. The option was exercised before the passage of Chapter 78. Ashland Waterworks Co. v. City, 251 F. 492; Slade v. Lexington (Ky.) 132 S.W. 404. A statute which affects vested rights will be construed as prospective only. School Corporation v. Heiney (Ind.) 98 N.E. 628; Davidson v. Gaston, 16 Minn. 230. A statute will not be construed to impair the validity of a contract. Roundtree v. Baker, 52 Ill. 241; Chicago v. State (Nebr.) 66 N.W. 244; Gaston v. Merriam (Minn.) 22 N.W. 614; Hovelman v. Ry. Co., 99 Mo. 632. The court erred in sustaining defendants' demurrers and in entering judgment against plaintiff, and said order and judgment should be reversed.

For the defendant in error, there was a brief and the cause was argued orally by Wm. J. Wehrli and R. H. Nichols of Casper.

Until adoption of Chapter 78, Laws 1933, the city had no power to purchase a gas plant. 43 C. J. 176; 1 McQuillin on Municipal Corporations, 2d Ed., Sec. 367; Henning v. City of Casper, 50 Wyo. 1; Tobin v. Town Council, 45 Wyo. 219; Bass v. City of Casper, 28 Wyo. 387. Municipalities have powers only as provided by statute. Article XIII, Sec. 1, State Constitution; Platt v. City (Cal.) 110 P. 304; Phillips Corporation v. Phillips Water Co. (Mo.) 71 A. 274. Plaintiff's petition shows upon its face that the city did not exercise its option to purchase until August 29, 1933 or later. General averments as to a municipal ordinance are conclusions of law. 49 C. J. 78. An ordinance must be set out in pleading. 49 C. J. 930. No justiciable controversy between plaintiff and New York Oil Company can be found in plaintiff's petition. The contract of August 29, 1933, was the first indication that the city would exercise its option of purchase. Barber v. Sheridan Trust & Savings Bank, 53 Wyo. 65; Brogan v. State (Wis.) 252 N.W. 566; Little v. Union Oil Co. (Calif.) 238 P. 1066; Jones v. Hall (Mont.) 300 P. 232; Holmes v. Nursery Co. (Okla.) 45 P.2d 698. Specific provisions of a written instrument govern general allegations with reference thereto. Kirtman v. Upkins (La.) 135 So. 612; Patrick v. Smelting Co. (Colo.) 38 P. 236; 49 C. J. 119. The pleading was properly tested by demurrer. 49 C. J. 99; Michels v. Boruta (Tex.) 122 S.W.2d 216; Combined Metals, Inc. v. Bastian (Utah) 267 P. 1020; Stover v. Peacock (Ind.) 141 N.E. 889; Bryant v. Modern Woodmen of America (Nebr.) 143 N.W. 331; Johnson v. Steele (Ore.) 59 P.2d 237; Ricketts v. Crewdson, 13 Wyo. 284; State v. Irvine, 14 Wyo. 318; Villalpando v. City of Cheyenne, 51 Wyo. 300; Sanitation Company v. City of Casper, 28 Wyo. 452; Smith v. Stone, 21 Wyo. 62. Want of legal capacity to sue is a ground for demurrer. Littleton v. Burgess, 16 Wyo. 58. Plaintiff refused to set out copies of various instruments, and the assumption is that they would be against the pleader. California Holding Co. v. Merrill (Cal.) 46 P.2d 175. The record shows conclusively that the city did not exercise its option prior to August 29, 1933. Day v. Smith, 46 Wyo. 515; Payne v. Shelton (Ind.) 134 N.E. 918. The contract of August 29, 1933, is void in any event. It is in conflict with Article I, Section 32 of the State Constitution. As appears from its face, it was the purpose of the city to obtain the gas plant in order that it might lease the same to plaintiff. Wright v. Walcott (Mass.) 131 N.E. 291; Markley v. City, 51 N.E. 29; Edwards v. Cheyenne, 19 Wyo. 110. This case differs from Tobin & Town Council, 45 Wyo. 219 and Henning v. City of Casper, 50 Wyo. 1, in which this court discussed personal judgments against municipalities. The case of Whipps v. Town of Greybull, recently decided by this court, seems to settle the controversy in favor of defendants.

E. E. Enterline, Madge Enterline, Leonard, Street & Deinard in reply.

Defendants in challenging the validity of the reserved option to purchase by the city, failed to refer to Chapter 38, Section 104, Wyo. R. S. 1931, which empowers all incorporated cities and towns in the state to purchase property for the construction of sewer, gas and water lines. Similar statutes in other states have been construed to confer power to furnish such service to cities and their inhabitants. Electric Co. v. City of Newton, 42 F. 723; Christiansen v. Fremont (Nebr.) 63 N.W. 364; Jacksonville Light Co. v. Jacksonville (Fla.) 30 L. R. A. 540; Carey v. Blodgett (Cal.) 102 P. 668; Smith v. Mayor (Tenn.) 12 S.W. 924; Overall v. Madisonville (Ky.) 12 L. R. A. (N. S.) 433; Nelson v. District, 137 Nebr. 871. This court in the case of Whipps v. Greybull, 109 P.2d 805 refers to Section 22- 125, Wyo. R. S. 1931 as conferring general powers to acquire public utility facilities. Defendants' argument that the City of Casper was without power to acquire a gas plant prior to the enactment of Chapter 78 of the Laws of 1933 was apparently based upon a misapprehension. Exhibit "B" does not conclusively establish that the option was not exercised prior to February 18, 1933. That ordinance is not inconsistent with prior ordinances enacted on the subject. 49 C. J. 119. Specific allegations control general allegations. Horton v. Travelers Ins. Co. (Cal.) 187 P. 1070; Ft. Wayne Tract Co. v. Kumb (Ind.) 116 N.E. 309; Chicago R. Co. v. Roth (Ind.) 108 N.E. 971. The ruling on the first demurrer did not constitute the law of the case, as the original petition is not before the court. Darling v. Blazek (Iowa) 120 N.W. 961. A ruling on a demurrer affects only the pleading demurred to. Reo Motor Car Co. v. Barnes (Tex.) 289 S.W. 422; First State Bank v. Stevens Land Co. (Minn.) 137 N.W. 1101; King v. Giblin, 36 Wyo. 448; Hansoom v. Herrick, 21 Minn. 9; Post v. Pearson, 108 U.S. 418. The contract of August 29, 1933, does not involve the taking of private property for private use, nor the giving of public credit to a private individual or corporation. Paine v. Seattle (Wash.) 127 P. 580; Edwards v. City of Cheyenne, 19 Wyo. 110 did not involve the question of leasing of a public...