Ronnow v. City of Las Vegas, 3153.

• Docket Nº: 3153.
• Citation: 65 P.2d 133, 57 Nev. 332
• Case Date: February 05, 1937
• Court: Supreme Court of Nevada

65 P.2d 133

57 Nev. 332

RONNOW
v.
CITY OF LAS VEGAS et al.

No. 3153.

Supreme Court of Nevada

February 5, 1937

Appeal from District Court, Clark County, Eighth District; J. M. Lockhart, Judge.

Suit by C. C. Ronnow against the City of Las Vegas, Nevada, and others. From four adverse orders and a decree for the plaintiff, the defendants appeal.

Decree reversed, and orders set aside.municipal improvements, prior general public improvements act is superseded, being inconsistent. [65 P.2d 135]

Ryland G. Taylor, A. W. Ham, and Ham & Taylor, all of Las Vegas, for appellants.

Chas. Lee Horsey, Lee A. McNamee, and Frank McNamee, Jr., all of Las Vegas, for respondent.

TABER, Justice.

This is an appeal from a decree of the Eighth judicial district court, Clark County, enjoining appellants (defendants in the court below) from issuing bonds of the City of Las Vegas for the purpose of acquiring or constructing a municipal power distribution system for said city, together with incidental equipment necessary and convenient for the distribution of electrical energy to the inhabitants of said City of Las Vegas. Four orders of said district court, adverse to defendants, are also appealed from.

On October 4, 1935, the board of city commissioners issued a proclamation proposing to bond the city for the acquisition or construction of a municipal power distribution system for furnishing electrical energy to the inhabitants of said city. Said proclamation was published for three successive weeks, as required by the statute, and on the 4th day of November, 1935, the board enacted an ordinance providing for the bond issue set forth in said proclamation.

On December 5, 1935, respondent (plaintiff in the court below), a citizen of this state, and a resident and taxpayer of said city, commenced an action in said district court praying that the defendants be enjoined from issuing the contemplated bonds. The first cause of action alleged that the defendants were without power to acquire or construct a power plant or lighting system for the purpose of furnishing electrical energy to the individual inhabitants or power users of said city. The amended second cause of action alleged that defendants had failed to comply with the requirements of the statute as to the essential proceedings necessary to be taken before issuing such bonds. The amended third cause of action alleged that defendants had failed to submit the proposal for said bond issue to the electors of said city, as required by the provisions of chapter 95 of the 1933 Statutes of Nevada. The district court, on general demurrer, held that the first cause of action stated facts sufficient to constitute a cause of action, but that neither the second nor third cause of action stated sufficient facts to constitute a cause of action. Defendants having elected to stand on their demurrer to [65 P.2d 136] the first cause of action, and plaintiff having failed to further amend his second and third causes of action, the court dismissed said second and third causes, and granted plaintiff a perpetual injunction against the issuance of the proposed bonds.

We shall first consider whether defendants had the power to issue and sell bonds for the purposes set forth in the aforesaid proclamation. In Tucker v. Virginia City, 4 Nev. 20, at page 26, the court says: "That municipal corporations have no powers but those which are delegated to them by the charter or law creating them; that the powers expressly given and the necessary means of employing those powers constitute the limits of their authority. It is conceded that beyond this they can have no active existence, and can do no act which the law can recognize as valid and obligatory upon them." And in State ex rel. Rosenstock v. Swift, 11 Nev. 128, at page 140, the court says that "a municipal corporation, in this state, is but the creature of the legislature, and derives all its powers, rights and franchises from legislative enactment or statutory implication."

McQuillin, in his work on Municipal Corporations, vol. 1, § 367, p. 910, uses this language: "Wherefore the usual formula, invariably supported by judicial utterances and judgments, in substance is: That the only powers a municipal corporation possesses and can exercise are: (1) Those granted in express terms; (2) those necessarily or fairly implied in, or incident to, the powers expressly granted; and (3) those essential to the declared objects and purposes of the municipality, not merely convenient, but indispensable." In the same work, section 356, the author says: "While a strict construction should be applied to the grant of powers to municipalities and especially those which result in public burdens, yet if the power is clearly implied, it should not be impaired by a strict construction. A strict construction must yet be a sensible construction and be based upon the entire context. Or, as it is sometimes put, the power given by a charter is a matter of reasonable construction."

In Chapman v. Hood River, 100 Or. 43, 196 P. 467, 470, the court said: "It is likewise a rule of construction that grants of power are not to be so construed as to defeat the intent of the Legislature or to withhold what is given either expressly or by necessary and fair implication."

Dillon, Municipal Corporations (5th Ed.) vol. 1, § 237: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation,--not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void."

Respondent does not contend that the Legislature cannot confer upon a city the power to acquire a municipal light and power plant and furnish lights and power to the inhabitants for their private uses; nor that, if the Legislature had conferred such powers upon the City of Las Vegas, it could not enter into competition with Southern Nevada Power Company, which now is and for many years last past has been lawfully engaged in the business of furnishing light, heat, and power to the inhabitants of said city. "What we have contended, and do contend," say counsel, "is, that the City has no power or authority to construct such a plant, and to take such action as the published proclamation and the ordinance passed pursuant thereto clearly show to be contemplated, and has no right to issue and sell its bonds for the purposes stated in said proclamation and ordinance, and not having such power or authority, conferred by the statute or statutes, the City is not authorized, and has no right, to undertake any such ultra vires and unauthorized action, and, therefore, has no power or authority to do so in competition with the existing power company, or otherwise, or at all."

Inasmuch as the City of Las Vegas derives its powers solely from the legislative enactment incorporating it (chapter 132, Statutes of Nevada 1911, and amendments thereto), it becomes necessary to examine [65 P.2d 137] the pertinent provisions of that act and of the amendments which have been made to it; for, as has been said by the Supreme Court of the United States, "No matter how much authority there may be in the legislature to grant a particular power, if the grant has not been made the city cannot act under it." City of Ottawa v. Carey, 108 U.S. 110, 2 S.Ct. 361, 365, 27 L.Ed. 669, at page 674.

Section 4 of subchapter 1 of C. 132 of said act of 1911, as amended (Statutes of Nevada 1935, C. 36, p. 41), provides in part that the city "may purchase, receive, hold and acquire, manage and enjoy, operate and maintain, municipal water works and municipal power plants, electrical or otherwise, or other public utility."

Clause 5 of section 31 of subc. 2 of said act of 1911, as amended (Statutes of Nevada, 1935, C. 36, pp. 43-46), which deals with the power of the city to borrow money and limits the amount of outstanding bonds, warrants, certificates, script, etc., provides in part that: "Nothing herein contained shall be construed to restrict the powers of said city as to taxation, assessment, borrowing money, contracting debts or loaning its credit for procuring supplies of water, municipal water works, municipal power plants, electrical or otherwise, or other public utility. *** The board shall have the power to acquire or establish municipal water works, municipal power plants, or any public utility, only in the manner herein provided. The board shall issue a proclamation which shall set forth briefly the supply of water, municipal water works, the municipal power plant, or other public utility proposed to be acquired or established."

Clauses 34, 36, 37, and 38 of said amended section 31, which, except for inconsequential changes in clause 36, remain as enacted in 1911, provide that the city shall have power--

"34. To provide for the lighting, sprinkling and cleaning of the streets, alleys, avenues, sidewalks, crosswalks, parks and public grounds. ***

"36. To contract with, authorize or grant to any person, company or association a franchise to construct, maintain, and operate gas, electric or other lighting works in the city, and to give such persons, company or association the privilege of furnishing light for the public buildings, streets, sidewalks and alleys of...