Schmidt v. Village of Kimberly

Decision Date22 April 1953
Docket NumberNo. 7983,7983
Citation256 P.2d 515,74 Idaho 48
PartiesSCHMIDT v. VILLAGE OF KIMBERLY.
CourtIdaho Supreme Court

Benoit & Benoit, Twin Falls, for appellant.

Robert E. Smylie, Atty. Gen., Blandford & Blandford, Twin Falls, for respondent.

TAYLOR, Justice.

In the trial court the parties stipulated the facts as follows:

'Plaintiff is now and for many years has been a citizen, resident property owner and taxpayer of the village of Kimberly, Idaho. Defendant is now a village having been duly incorporated as such in 1917.

'After the 1951 Legislature of the State of Idaho enacted the Revenue Bond Act, which is Chapter 47, 1951 Session Laws, some large bond brokerage concerns refused to bid on, and some nationally recognized bond attorneys refused to approve, revenue bond issues in Idaho until the Idaho Supreme Court had passed upon the validity and constitutionality of said Revenue Bond Act.

'This is a friendly action brought under the Declaratory Judgment Act [I.C. § 10-1201 et seq.] in order to reach a final determination by the Court as quickly as possible, in order to permit remedial legislation by the 1953 legislature, if necessary. The questions involved herein are of general interest to all citizens and municipalities in the State of Idaho.

'On November 13, 1951, the village of Kimberly, Idaho, passed Ordinance No. 134 ordering the acquisition of a sewage collection system and sewage treatment plant for Kimberly, and the extension of the municipal water system and water treatment plant, and calling for an election for purpose of submitting to the qualified electors of said village the following proposition:

'Shall the village of Kimberly, Idaho, issue and sell its revenue bonds to the amount of $130,000 for the purpose of providing funds with which to acquire through purchase and construction a sewage collection system and a sewage treatement plant and to extend the municipal water system and water treatment plant, the whole to constitute and be operated as a single public utility, as more fully provided in Ordinance No. 134, adopted on November 13, 1951.'

'Ordinance No. 134 was published in the Kimberly Advertiser on November 16, 1951, and is attached to the complaint herein as Exhibit 'A'.

'After Ordinance No. 134 became a law, the village of Kimberly, Idaho, posted notice of an election for the purpose mentioned in said ordinance on November 17, 1951, and published such notice on November 16, 23 and 30, and December 7, 1951. Said notice was posted 24 days before the election and the first publication thereof was 25 days before the election; that such posting and publication was done as required by Section 50-1702 of Idaho Code, which is part of the law relating to municipal elections, and as required by section 9 of said Revenue Bond Act. Said notice is attached to plaintiff's complaint as Exhibit 'B'.

'The election was held on December 11, 1951. The polls opened at 9:00 o'clock, A.M., and closed at 7:00 o'clock P.M. Persons who voted at said election were qualified electors, and of those voters, some were taxpayers and some were not, some owned real property and some did not, and some were wives of taxpayers and some were husbands of taxpayers. The proposition submitted to the voters carried by more than a two-thirds majority.

'In 1950 the village of Kimberly issued general obligation bonds to the amount of $56,000.00 for the purpose of enlarging, extending and improving its water distribution system. Bonds were duly sold and the purpose accomplished. A levy was made in 1951 and will be made each year thereafter for a period of twenty years to pay the principal and interest of said general obligation bonds.

'The village does not have a sewerage system. Sewage is handled by cesspools and sewer wells. The construction of the proposed sewage works is necessary to the preservation of the health of the citizens of the village of Kimberly and of the surrounding suburban area. The village intends to use a portion of said revenue bond funds to purchase property outside the city upon which to construct the sewage treatment and disposal plant.

'On June 10, 1952, the village of Kimberly passed Ordinance No. 139, Exhibit 'C', directing the issuance of $130,000 water and sewer bonds to pay the cost of extending the water system and water treatment plant and for a sewage collection system and sewage treatment plant. Said ordinance also fixed the form of the bonds and contained the usual provisions found in such ordinances.

'The village of Kimberly intends to pay the Revenue Bond Fund for all water service supplied the village by said water system, water treatment plant, sewage collection system and sewage treatment plant, including an annual rental for use of water from fire hydrants connected with said system. The amount of such rental will be not less than $10.00 for each fire hydrant and will be paid quarterly from general tax funds. Such payments are provided for in said Ordinance No. 139 in Section 10.

'Upon completion of construction as aforesaid, the village of Kimberly intends to compel all places of business and residence within the village which are within 150 feet of the sewer line to connect thereto and to abandon all private means of sewage disposal.

'After construction of the sewage collection system, sewage treatment and disposal plant, and extension of the municipal water system and water treatment plant, the whole project will then be operated as a single public utility. The charges for sewer services rendered and water supplied in connection with the water and sewerage system will be billed as a unit. Collection of such charges will be made from all persons using the system whether they be taxpayers, property owners, lessees, renters, or otherwise. If any of such persons fails to pay his bill, the village will shut off his water and he will thereafter be denied water and sewer service. The Revenue bond Act of Idaho provides at section 4, subdivision (e), for such denial of service. The village of Kimberly intends to collect from such persons the sewer and water charges set forth in said Ordinance No. 139, and if any person fails to pay the same and his water is shut off, as aforesaid, a penalty will be levied against him and, as above stated, he will be denied both water and sewer services.

'In the event of default in the payment of principal of or interest on said bonds for a period of 30 days, or in the event of failure of said Village officials, agents or employees to comply with any essential provisions of said Ordinance No. 139, then a receiver will be appointed for the system, which receiver will be authorized to enter and take possession of the system, operate and maintain the same, prescribe rates, fees and charges, and collect, receive and apply revenues arising therefrom in the same manner as the municipality might do.'

As to nine of the twelve propositions passed upon by the court, the judgment was in favor of the defendant, upholding the validity of the statute and ordinances in respect thereto. From these rulings the plaintiff appeals. As to the remaining three propositions the judgment was favorable to the plaintiff, holding invalid the provisions of Ordinance No. 139 in respect thereto. From these three rulings the defendant cross-appeals.

Pertinent constitutional provisions common to various of the issues are as follows:

'No county, city, town, township, board of education, or school district, or other subdivision of the state, shall incur any indebtedness, or liability, in any manner, or for any purpose, exceeding in that year, the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provisions shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principle thereof, within twenty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void: provided, that this section shall not be construed to apply to the ordinary and necessary expenses authorized by the general laws of the state.' Art. 8, § 3, Idaho Constitution.

This section of the constitution was amended in 1950 by the addition thereto of the following:

'and provided further that any city or village may own, purchase, construct, extend, equip, within and without the corporate limits of such city or village, water systems and sewage collection systems, and water treatment plants and sewage treatment plants, and off street parking facilities, and, for the purpose of paying the cost thereof may, without regard to any limitation herein imposed, with the assent of two-thirds of the qualified electors voting at an election to be held for that purpose, issue revenue bonds therefor, the principal and interest of which to be paid solely from revenue derived from rates and charges for the use of, and the service rendered by, such systems, plants, and facilities as may be prescribed by law.' 1951 S.L. p. 656.

The judgment of the trial court on the first issue presented is as follows:

'* * * the Village of Kimberly, Idaho, may combine its water system and its sewer system and issue water and sewer revenue bonds with a pledge of the net revenue of both as the sole security thereof, even though the water system now exists and the sewer system is non-existent since the water system will be extended when the sewer system is constructed, and the authority therein granted is not in violation of any of the provisions of the Constitution of the State of Idaho.'

This ruling is correct. § 50-2814 I.C. of the Revenue Bond Act defines 'works' as follows:

'(a) The term 'works' shall include water system, sewage collection system, waer treatment plant, sewage...

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    • United States
    • United States State Supreme Court of Idaho
    • 18 Marzo 1996
    ...of statute when and only insofar as it is being or about to be applied to his disadvantage); Schmidt v. Village of Kimberly, 74 Idaho 48, 62-63, 256 P.2d 515, 524 (1953) (question of constitutionality of ordinance can only arise out of attempt to enforce the regulation; therefore, the issue......
  • Peak v. City of Tuscaloosa, CR-09-0805
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    ...and use the system.'"Loomis v. City of Hailey, 119 Idaho 434, 437, 807 P.2d 1272, 1275 (1991) (quoting Schmidt v. Village of Kimberly, 74 Idaho 48, 63, 256 P.2d 515, 524 (1953)). See also Rupp v.Page 27Grantsville City, 610 P.2d 338, 341 n.6 (Utah 1980) ("[W]hile fulfilling a proprietary ro......
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    ...and use the system.’ ”Loomis v. City of Hailey, 119 Idaho 434, 437, 807 P.2d 1272, 1275 (1991) (quoting Schmidt v. Village of Kimberly, 74 Idaho 48, 63, 256 P.2d 515, 524 (1953)). See also Rupp v. Grantsville City, 610 P.2d 338, 341 n. 6 (Utah 1980) (“[W]hile fulfilling a proprietary role i......
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