People ex rel. Boardman v. City of Butte

• Decision Date: 31 August 1881
• Parties: PEOPLE ex rel. WILLIAM T. BOARDMAN and others v. CITY OF BUTTE and others.
• Court: Montana Supreme Court

4 Mont. 174

PEOPLE ex rel. WILLIAM T. BOARDMAN and others

v.CITY OF BUTTE and others.

Supreme Court of the Territory of Montana.

August Term, 1881.

It is within the power of the legislature to enact laws, the taking effect of which may be conditional or contingent, depending upon some uncertain future event, or to delegate to one man, or to the people, the question as to when the contingency shall take place. The enactment becomes a law solely by the will of the legislature, though it may be delegated to others to say when the law already made shall take effect.

A city charter enacted complete in all its parts, and having its authority defined and powers prescribed by the legislature, is a law, and may be imposed upon the people without their consent; but it is in the power of the legislature to delegate to any class of persons it sees fit, the determining of when the law shall go into effect, or to make it depend upon any contingency not in violation of the constitution or the organic act.

Appeal from Deer Lodge county, second district.

Stephen De Wolfe, for appellant

WADE, C. J.

The act incorporating the city of Butte provides (article 4, § 2, Sess. Laws 1879) as follows: “All citizens of the United States, and those who have declared their intention to become such, of twenty-one years of age, who shall be tax-paying householders, and who shall have been actual residents of said city three months preceding said election, shall be entitled to vote for city officers and the adoption of this charter: provided, said voters shall give their votes in the wards in which they shall respectively reside.”

The validity of this act of incorporation is called in question, principally for the reason that it limits and restricts the right to vote upon the proposition to adopt or to reject the charter, to the tax-paying householders who shall have been actual residents of the city for three months preceding the election.

The organic act vests all legislative power of the territory in the governor and legislative assembly. The qualification of voters and of officers (after the first election) are such as shall be prescribed by the legislature. The legislative power of the territory extends to all rightful subjects of legislation consistent with the constitution and the organic act of the territory. The power to make laws, limited only by the boundaries of the constitution and the organic act, resides with the legislature, and there it must remain. But it is no violation of this principle that the legislature may confer upon municipal organizations certain powers of legislation concerning local regulation, for such municipal governments are mere auxiliaries to the state government in the business of municipal rule.

It is another well-settled principle that the legislature may create municipal organizations and governments upon its own motion, consulting only its own views as to the propriety or necessity of such action, and without the consent and against the protest of those upon whom such government is to take effect. Cooley, Const. Lim. 143. The theory of a government by the people is that they act through their representatives. They delegate their authority to their agents, who speak and act for them in making laws. The acts of an agent within the scope of his authority binds the principal; hence, laws enacted by a properly constituted legislature within the scope of its authority, and not in conflict with the constitution or organic law, bind the people. They give their consent to laws by clothing their agents with power and authority to make them. There is no reserved power in the people to consent to or reject laws properly enacted by their lawfully constituted agents. If they object to the laws for the reason that they are not within the limits of the organic law, they may have that question determined in the proper tribunals; if they object to them because they are oppressive, or do not fulfill their expectations, they may elect new agents to alter or abolish them, and to enact others in their place.

It is within the competency of a territorial legislature to create municipal corporations. Its authority extends to all rightful subjects of legislation. It may provide municipal courts, although by the organic act it is declared that the judicial power of the territory shall be vested in a supreme court, district courts, probate courts, and justices of the peace. 1 Dill. Mun. Corp. § 18, citing State v. Young, 3 Kan. 445;Burnes v. Atchison, 2 Kan. 454;Reddick v. Amelia, 1 Mo. 5;Vincennes Univ. v. Indiana, 14 How. 268;Vance v. Bank, 1 Blackf. 80;Myers v. Bank, 20 Ohio, 283;Deitz v. City of Central, 1 Colo. 323. The same author further says: “The rule which applies to private corporations, that the incorporating act is ineffectual to constitute a corporate body until it is assented to or accepted by the corporators, has no application to statutes creating municipal corporations. These are imperative and binding without any consent, unless the act is expressly made conditional. All who live within the limits of the incorporated district are bound by them, and can only withdraw from the corporation by removal. Over such corporations, the legislature, unless restrained by the constitution, has entire control, and unless otherwise provided by the act itself, or a different intention is manifested, the public corporation is legally constituted as soon as the incorporating act declaring it to exist goes into effect.” 1 Dill. Mun. Corp. § 23; Medical Inst. v. Patterson, 1 Denio, 61;5 Denio, 681;Myers v. Irwin, 2 Serg. & R. 368; Ang. & A. § 79, and cases cited; Wells v. Burbank, 17 N. H. 393;Society, etc., v. Town of Pawlet, 4 Pet. 480.

Having this authority, it has been doubted whether the legislature had the lawful right to submit the question of the adoption or rejection of a municipal charter to the people for whom it was created; but the weight of authority is, and the practice is now general, to submit to those interested, and who are to take upon themselves the burdens imposed by a municipal government, if the same is established, the question as to the adoption or rejection of the charter. And this is not the delegation of legislative authority to the people. It is merely attaching a condition to the law, and providing that it shall take effect upon the happening of a certain event. 1 Dill. § 23. The legislature having absolute authority to establish a municipal government for a town or city without consulting the people of such town or city, or obtaining their consent, it follows that the legislature may cause the establishing of such municipal government to depend upon the happening of any future contingency or event.

It is objected that this act of incorporation did not become a law by virtue of the will of the legislature, but by virtue of the will of the people to whom the question of its adoption was submitted. This objection is not supported by authority. The legislature may attach such conditions as to the taking effect of laws as it sees proper.

In the case of Slack v. M. & L. R. Co. 13 B. Mon. 23, the court says: “It is not essential to the character and force of a law that the legislative enactment should itself command to be done everything for which it provides. The legislative power to command a particular thing to be done includes the power to authorize it to be done. The act done under authority conferred by the legislature is precisly as legal and valid as if done in obedience to a legislative command. Each is entitled to the same force and efficacy, and each must be followed by all the consequences which, either by the general laws or by the particular statute, are annexed to the particular law, because such is done in effectuation of the legislative will, and each, when done according to that will, has all the sanction which the legislative power can give. Each is therefore entitled to the aid of the whole power of the government to uphold it, and to maintain the rights flowing from it. A peremptory statute is at once mandatory and requires obedience; and thus is at once a perfect law in all respects. A statute giving authority to do or not to do, and prescribing the consequences of the act done, has not, until the act is done, any mandatory effect requiring immediate obedience, except so far as it regulates the time and manner of doing the act, and expressly or impliedly commands that the agent shall not be prevented from doing it according to the discretion allowed. Beyond that it has not a mandatory effect until the act is done, and is not until then a perfect law as to all the purposes provided for. In other words, it does not take its final effect as to a mandatory law until the discretionary act is done upon which it is to have its final and peremptory operation. So far as such a statute confers authority and discretion, it is as obligatoryfrom the first as the legislative power can make it. Although its further practical efficacy may depend upon the discretionary act of some other body or individual, it is not derived from that discretion, but from the will of the legislature which authorized the act and prescribed its consequences.”

In Burr v. Blanding, 13 Cal. 358, the court say: “Laws may be absolute, dependent upon no contingency, or they may be subject to such conditions as the legislature may impose. They may...