Nelden v. Clark

• Decision Date: 24 November 1899
• Citation: 59 P. 524,20 Utah 382
• Court: Utah Supreme Court
• Parties: W. A. NELDEN, ET AL., RESPONDENTS v. JOHN CLARK, MAYOR OF SALT LAKE CITY, ET AL., APPELLANTS

59 P. 524

20 Utah 382

W. A. NELDEN, ET AL., RESPONDENTS v. JOHN CLARK, MAYOR OF SALT LAKE CITY, ET AL., APPELLANTS

Supreme Court of Utah

November 24, 1899

Appeal from the Third District Court, Salt Lake County, Hon. Ogden Hiles, Judge.

Action by plaintiff to restrain the Mayor and City Council of Salt Lake City, City Engineer and Superintendent of Water Works under the order of the city council, from constructing improvements to the city water works system and from constructing a bridge across the Jordan river. From a judgment for plaintiff, defendant appealed.

Affirmed.

W. C Hall, Esq., and C. B. Stewart, Esq., for Appellants.

The appellants insist that the defendant City, through its City Council, had the power and authority to purchase the materials and do the work in the way proposed by the Council under the provisions of Sec. 206 of the Rev. Stat. 1898, as follows:

36. "Bridges, etc. To construct and keep in repair bridges, viaducts, and tunnels, and to regulate the use thereof."

76. "Water works, fire signals, etc. To purchase, construct, lease, rent, manage, and maintain any system or part of any system of waterworks, hydrants, and supplies of water, telegraphic fire signals, or fire apparatus, and to pass all ordinances, penal or otherwise, that shall be necessary for the full protection, maintenance, management, and control of the property so leased, purchased or constructed."

The contention of the respondents is that by Section 286 of the Revised Statutes, 1898, the Board of Public Works alone has the power of making the contract for all such work and improvements and the supervision of the same, subject to the approval of the City Council.

A statute is not repealed by a later affirmative statute which contains no repealing clause, unless the conflict between them cannot be reconciled, or the latter covers the same ground as the former, and is clearly intended as a substitute therefor. Red Rock v. Henry, 106 U.S. 596.

Repeals of statutes by implication are not favored, and are never admitted where the former can stand with the new act. Heong v. United States, 112 U.S. 536.

The exposition of statutes passed at the same session, though apparently conflicting, but not directly repugnant, should be such as to give effect to what appears to be the main intent of the law-maker. LaGrange Co. v. Cutler, 6 Ind. 354.

Messrs. Stephens & Smith, for respondents.

The legislature of the State of Utah in 1890, passed an act, approved March 13, 1890, which took effect on the 1st day of May, 1890, creating in each city of the first class a board of public works. This act has ever since remained in force, but was in the Revised Statutes of 1898 modified in immaterial particulars so far as this action is concerned, the only modification being that the members of the board are now appointed by the mayor, with the consent of the council, the mayor designates the chairman instead of the council, and the proviso in regard to furnishing copy of charges against a member sought to be removed, etc., was in the 1898.

For the duties of the board, as defined by the statute, see laws of 1890, pages 62, 63; code of 1898, chapter 13, Sec. 283 to 286, inclusive.

"Where power is conferred upon public officers by legislative enactment, the said power can be exercised by them only in the way directed by the law, and unless the law granting the power is strictly complied with, the acts of the officers are void." Mayor of Baltimore v. Porter, 79 Am. Dec. 686; Zottman v. San Francisco, 81 Am. Dec. 96.

"An officer of municipal corporation has no power to make a contract except in the manner pointed out by the statute from which the power is derived." Murphy v. Louisville, 9 Bush. 194; Craycroft v. Selvidge, 10 Bush. 707.

"It is a general and indispensible proposition that a municipal corporation possesses and can exercise the following powers and no others:

"1st. Those granted in express words.

"2d. Those necessarily or fairly implied in or incident to the powers expressly granted.

"3d. Those essential to the declared objects and purposes of the corporation--not simply convenient, but indispensible.

"Any fair reasonable doubt concerning the existence of power is resolved by the court against the corporation and the power is denied."

MINER, J. BASKIN, J., concurs. BARTCH, C. J., concurring in the judgment.

OPINION

MINER, J.

This action was brought in April, 1899, to restrain the mayor and city council of Salt Lake City, the city engineer and superintendent of water works, under the order of the city council, from constructing about $ 30,000 worth of improvements to the city water works system, and also the construction of a bridge across the Jordan river at a cost of $ 2,500.

Plaintiffs claim that under the law, the board of public works were required to make contracts on behalf of the city for the performance of all such work, and the erection of the improvements described in the complaint and ordered by the city council, and that the city engineer and superintendent of water works, under the directions of the city council, had no right or authority to proceed with the construction of said work. The court decided the issues in favor of the plaintiffs, and found among other things, that this right and duty devolved upon the board of public works, as ordered by the city council, and that the city council had no right or authority under the law to instruct the city engineer to proceed with the construction of the bridge by purchasing materials and employing labor by the day's work, and that the mayor and city council had no authority to direct the superintendent of water works to purchase material and construct the improvements to the water works system aforesaid, nor to employ labor by the days' work thereon, instead of letting contracts to the highest bidder.

Defendants appeal from the judgment, and claim that the findings of fact are contrary to law. In support of this contention appellants rely on sub-divisions 36 and 76 of section 206 Rev. Stat., 1898, which were adopted prior to the year 1888, and which read as follows: "The city council shall have the following powers:

"36. To construct and keep in repair, bridges, viaducts, and tunnels, and to regulate the use thereof.

"76. Water works, fire signals, etc. To purchase, construct, lease, rent, manage, and maintain any system or part of any system of water works, hydrants, and supplies of water, telegraphic fire signals, or fire apparatus, and to pass all ordinances, penal or otherwise, that shall be necessary for the full protection, maintenance, management, and control of the property so leased, purchased, or constructed."

Prior to 1890, section 1 and 2 of the Rev. Ordinances of 1892, page 494, were adopted by the city council, providing that the water works shall be under the control of the city council who may direct the construction of reservoirs, water-mains, water-tanks, service pipes and fire-hydrants that may be necessary; that the superintendent of water works shall, under the direction of the city council, have charge of the reservoirs, water-tanks and machinery appurtenant to the water works, and shall have the direction of the laying of water-mains and putting in service pipes, and the regulation of the water supply, etc.

Respondents rely upon an act creating a board of public works in cities of the first class which took effect May 1, 1890, since the approval of Sec. 206, session laws, 1890, p. 62, being as amended Secs. 283, 286, Ch. 13 Rev. Stat. 1898. These sections read as follows:

"283. Appointment. Term. There shall be in each city of the first class a board of public works which shall consist of five members, residents and free holders of the city, appointed by the mayor, with the consent of the council, for the term of two years.

"286. Duties of board. It shall be the duty of such board of public works, and it shall have power, to make contracts on behalf of the city for the performance of all such work and the erection of all such improvements as may be ordered by the city council, but all such contracts shall be subject to the approval or rejection of the council; to superintend the performance of all such work and the erection of such improvements, except the supervision of the construction of city halls, market houses, jails or other public buildings. It shall also be the duty of said board to approve the estimates of the city engineer which may be made from time to time, of the value of the work as the same may progress; to accept any work done or improvement made, when the same shall be fully completed according to contract, subject, however, to the approval of the council; and to perform such other duties as may be devolved upon them by ordinance."

No express words of repeal are embraced in the act. If Sec. 286 is repugnant to Sec. 206, or so contradictory or irreconcilably in conflict with it that the two sections cannot be harmonized in order to effect the purposes of their enactment, then the latter act may repeal the former; but one act is not to repeal or defeat another if by reasonable construction the two can be harmonized and made to stand together. When a statute enumerates the persons and things to be affected by its provisions, there is an implied exclusion of others. "If two inconsistent acts are passed at different times, the last is to be obeyed, and if obedience cannot be observed without derogating from the first, it is the first that must give way." So, if an earlier statute is impliedly repealed by a later one on account of repugnancy or inconsistency between the two, the repeal will be measured by the extent of the conflict or inconsistency between the acts, and if any part of the earlier act...