Lodoen v. City of Warren

• Decision Date: 18 June 1920
• Docket Number: No. 21938.,21938.
• Citation: 146 Minn. 181,178 N.W. 741
• Parties: LODOEN v. CITY OF WARREN et al.
• Court: Minnesota Supreme Court

146 Minn. 181

178 N.W. 741

LODOEN

v.CITY OF WARREN et al.

No. 21938.

Supreme Court of Minnesota.

June 18, 1920.

Appeal from District Court, Marshall County; Grindeland, Judge.

Action for injunction by A. N. Lodoen against the City of Warren, the Bitulithic Contracting, Limited, and others. Demurrer to complaint sustained, and plaintiff appeals. Order reversed.

Syllabus by the Court

The provision of chapter 65, Laws of 1919, which permits each city of the fourth class having a home rule charter to determine for itself whether that law shall become operative therein, violates sections 33, 34 and 36 of article 4 of the Constitution and is void.

The powers conferred by that act are charter powers and the power to adopt them cannot be delegated by the Legislature except in the manner provided by section 36, article 4, of the Constitution.

Unless the invalid part of a law is so connected with its subject-matter and purpose as to overcome the presumption that the Legislature intended to keep within constitutional limits and to have the law become operative within such limits, the valid part of the law must be given effect.

Laws applying to cities of the fourth class may exclude from their operation cities of that class having home rule charters, as such further classification is permissible.

Chapter 65, Laws of 1919, does not apply to cities of the fourth class having home rule charters, and hence does not apply to the city of Warren. A. N. Eckstrom, of Warren, for appellant.

Charles Loring and G. A. Youngquist, both of Crookston, and Denegre, McDermott & Stearns, of St. Paul, for respondent Bitulithic Contracting, Limited.

Douglas, Kennedy & Kennedy, of St. Paul, amici curiae.

TAYLOR, C.

It appears from the complaint that the city of Warren is a city of the fourth class having a home rule charter; that in proceedings instituted under and pursuant to chapter 65 of the laws of 1919, the city has let a contract to defendant Bitulithic Contracting, Limited, to pave certain streets in the city, and is about to issue certificates of indebtedness to provide funds to pay for the work, and intends of levy assessments against the benefited property to reimburse the city for the expense so incurred; that the question of issuing such certificates of indebtedness has never been submitted to or approved by the voters of the city; and that plaintiff is a resident and taxpayer of the city and owns property abutting upon the streets proposed to be paved. The city, its officers and the contractor are made parties defendant, and plaintiff asks that they be enjoined from performing the contract, and that the city and its officers be enjoined from issuing certificates of indebtedness of the city and from assessing the cost of the work against the benefited property. The defendants demurred to the complaint, the demurrer was sustained, and plaintiff appealed.

[1][2] The proceedings attacked by plaintiff were instituted under and rest upon chapter 65 of the Laws of 1919, and the first question with which we are confronted is whether this statute applies to the city of Warren. The first section provides:

‘In any city of the fourth class or village of this state, howsoever organized, the council shall have power to improve any street or streets, or any alley or alleys by laying and maintaining pavements, gutters, and curbs thereon of any material which it may deem suitable or by grading or graveling the same.’

Succeeding sections prescribe the procedure to be followed, and authorize the letting of contracts to do the work and the issuance of certificates of indebtedness to pay for it, and provide for levying assessments against the benefited property to reimburse the municipality for the expense incurred. Section 12a of the act reads:

‘The provisions of this act shall not modify or repeal the provisions of the city charter of any city of the fourth class having a home rule charter, but any such city may, however, avail itself of the benefits of this act by ordinance duly passed by the governing body thereof.’

The city of Warren is a city of the fourth class having a home rule charter, and duly enacted an ordinance determining and declaring that it availed itself of the benefits of this act, and claims authority thereunder to make the improvements in controversy.

Section 33 of article 4 of the Constitution, amongst other things, provides:

‘The Legislature shall pass no local or special law regulating the affairs of * * * any county, city, village, township, ward or school district.’

Section 34 of the same article provides that all general laws regulating such affairs ‘shall be uniform in their operation throughout the state.’

In State ex rel. v. Copeland, 66 Minn. 315, 69 N. W. 27,34 L. R. A. 777, 61 Am. St. Rep. 410, an act establishing departments of public works and authorizing the making of public improvements in cities of over one hundred thousand inhabitants which act provided that it should ‘be enforced in any city whenever the common council of any such city embraced within its provisions shall adopt the same by a majority vote of all the members,’ was before the court, and after an exhaustive consideration of the question it was held that the act violated the constitutional provisions above quoted and was an unjustifiable delegation of legislative power and void.

In holding that the provision of the act which permitted one city to adopt it and another city of the same class to reject it violated the constitutional requirement that such laws ‘shall be uniform in their operation throughout the state,’ the court said:

‘Under these constitutional provisions, is a local option law which gives to each of a class of cities the right to accept or reject certain charter powers constitutional? Is such a general local option law one having a uniform operation throughout the state? How can a law which goes into effect in one city, and does not go into effect in another city of the same class, have a uniform operation throughout the state? It seems to us that the Legislature cannot bring about diverse charter powers in different cities by enacting any such local option law which may result in giving different cities different charter powers, unless the same result can be accomplished by a direct, unconditional law. The mere possibility that all the cities of the class may adopt the law will not save it. It must appear at the time the law is passed that it will have a uniform operation throughout the state; that is, that it will take effect in all cities of the class, and that the class is a proper one. The uniform operation of the law cannot be left to any future contingency.’

In Nichols v. Walter, 37 Minn. 264, 33 N. W. 800, it was held that chapter 272 of the Laws of 1885 violated the uniformity rule because it required a three-fifths vote to effect the removal of the county seat in certain counties and permitted such removal in other counties by a majority vote. In the course of the opinion the court observed:

‘The proposition that a general law, to be operative, must...