State ex rel. Gebhardt v. City Council of Helena

• Citation: 55 P.2d 671,102 Mont. 27
• Decision Date: 07 March 1936
• Docket Number: 7487.
• Parties: STATE ex rel. GEBHARDT et al. v. CITY COUNCIL OF HELENA et al.
• Court: United States State Supreme Court of Montana

55 P.2d 671

102 Mont. 27

STATE ex rel. GEBHARDT et al. v. CITY COUNCIL OF HELENA et al.

No. 7487.

Supreme Court of Montana

March 7, 1936

Appeal from District Court, Lewis and Clark County; George W Padbury, Jr., Judge.

Mandamus action by the State, on the relation of Fred Gebhardt and others, against the City Council of the city of Helena and others. From the judgment, the defendants appeal.

Affirmed.

John W Mahan, of Helena, George S. Smith, of Billings, and Donovan Worden, of Missoula, for appellants.

Weir Clift, Glover & Bennett, of Helena, and Church & Jardine, of Great Falls, for respondents.

MORRIS Justice.

This action involves the constitutionality of chapter 55 of the 1935 Session Laws of the legislative assembly relating to the salaries of policemen in cities of the first class, and to all other cities which have or may elect to come under the provisions of chapter 120 of the 1929 Session Laws defining the qualifications of police officers and providing for the creation of police reserves.

Plaintiffs in the action are members of the police force of the city of Helena, a city of the first class, and they seek to compel the city to pay their salaries as provided by the act referred to. The complaint sets out the essential jurisdictional facts, alleges that the salaries of the plaintiffs have been fixed by ordinance and paid at less than that provided by chapter 55; and they also allege their demand upon the defendants as officials of the city for the payment of salaries in accordance with the provisions of the act and refusal by the defendants. An alternative writ of mandate was issued as prayed for, directing defendants to fix and pay plaintiffs' salaries as provided by the act or appear at the time specified and show cause why the writ should not be complied with. At the hearing on the order to show cause the defendants moved to quash the writ, contending, among other things, that the complaint did not allege facts sufficient to justify the issuance of the writ; the motion to quash was denied and defendants given ten days in which to plead further; their answer was duly filed, which contained, among other things, an alleged affirmative defense based upon the budget law. After the pleadings were complete, plaintiffs moved for judgment on the pleadings; the court took the matter under advisement, directed that briefs be filed, and thereafter granted plaintiffs' motion for judgment and directed that the writ issue commanding defendants to comply with the provisions of chapter 55 by fixing and paying the plaintiffs' salaries as provided in that act, and also allowing plaintiffs attorneys' fees and costs. From that judgment, defendants appeal. Defendants assign six specifications of error, five of which are founded on their allegation that chapter 55 is unconstitutional, and the sixth on the court's allowance of attorneys' fees and costs, and, in addition to such assignments, defendants again raise the question here of the sufficiency of the complaint to justify the issuance of the writ. We think the complaint meets all the essential requirements of good pleading and that defendants' contention on this point cannot be sustained. The only material issue raised by the pleadings goes to the constitutionality of the act.

The allegation of unconstitutionality and the argument in support thereof are directed against section 1, which is as follows:

"Section 1. That from and after the passage and approval of this Act there shall be paid to each member of the Police Department of cities of the first class of the State of Montana, a minimum wage, for a daily service of eight consecutive hours' work, of at least One Hundred Sixty ($160.00) Dollars per month for the first year of service, and thereafter of at least One Hundred Sixty ($160.00) Dollars per month plus One ($1.00) Dollar per month for each additional year of service up to and including the tenth year of such additional service; provided, however, that members of the Police Department of said cities of the first class, and of those cities and towns that have heretofore elected to come under the provisions of Chapter 120 of the Session Laws of the Twenty-first Legislative Assembly of the State of Montana, at the time of the passage and approval of this Act, shall thereafter be paid a monthly minimum wage of at least One Hundred Sixty ($160.00) Dollars, plus One ($1.00) Dollar per month for each year of active service after the first year, theretofore rendered by them, not exceeding ten (10) years of such service, after the first year."

Section 4 of article 12 of our Constitution with which defendants contend the above act conflicts is: "The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes, but it may by law invest in the corporate authorities thereof powers to assess and collect taxes for such purposes."

The merits of this controversy will turn upon whether the city of Helena exercises governmental or proprietary powers in the organization and maintenance of its police department.

We see nothing in section 4 of article 12 of the Constitution to support the contention of the defendants. The title of article 12 is "Revenue and Taxation," and its entire eighteen sections deal with the subject announced by its title, and we confirm the interpretation placed upon section 4 by this court in State ex rel. Gerry v. Edwards, 42 Mont. 135, 111 P. 734, 738, 32 L.R.A. (N.S.) 1078, Ann.Cas. 1912A, 1063, cited by defendants, where it is said: "We cannot conceive of any purpose which the framers of our Constitution had in drafting section 4, art. 12, above, except to secure to the people of these cities that measure of local self-government which they enjoyed at the time the Constitution was framed and adopted." Defendants' interpretation by which they would apply the section to prohibit the Legislature from fixing the minimum wage of city policemen becomes manifestly erroneous when it is noted that the section applies to counties, cities, and school districts with equal force, and the Legislature from the time the government was established has specifically directed by legislative act what county officers should be elected and fixed their salaries, and directed county commissioners to fix the salaries of appointive officers within certain bounds. The Legislature, of course, has the same power in each subdivision in all matters coming under the head of governmental functions. Long acquiescence in legislative interpretation of a constitutional provision is entitled to great consideration. State ex rel. Wallace v. Callow, 78 Mont. 308, 319, 254 P. 187, and cases cited. Section 5095, Revised Codes 1921, commands the city to provide a police department; section 5107 fixes the salary of the chief of police in cities of the first class at not less than $100, nor more than $300 per month. The last-mentioned section was enacted in 1907 and it has not heretofore been attacked in this court.

This court said in the case of Griffith v. City of Butte, 72 Mont. 552, 234 P. 829, 831, that "the authorities are all agreed upon the proposition that the functions of municipal corporations, although all of a public nature, are properly divisible into two great classes: (1) Governmental, which are those conferred upon such a corporation as a local agency of prescribed and limited jurisdiction to be employed in administering the affairs of the state and promoting the public welfare generally; and (2) municipal, being those granted for the special benefit and advantage of the urban community embraced within the corporate boundaries. 28 Cyc. 267." These two functions are usually referred to as the dual powers of municipalities or governmental and proprietary powers. Proprietary powers of a municipality are synonymous with the terms home rule and local self-government.

The powers of cities and towns were outlined and defined in State ex rel. City of Missoula v. Holmes, 100 Mont. 256, 47 P.2d 624, 629, 100 A.L.R. 581, and reaffirmed in State ex rel. Kern v. Arnold, 100 Mont. 346, 49 P.2d 976, 100 A.L.R. 1071. The extent to which the theory of home rule or local self-government is recognized in the various jurisdictions in municipal affairs is treated at length in the annotation on page 1078 et seq. of 100 A.L.R. in connection with the Arnold Case, supra. Numerous cases are there grouped that clearly distinguish between the variations of the rule as laid down in different jurisdictions. The rule is applied with such variations, particularly as to the rights of municipalities to exercise home-rule powers, that it is apt to lead to confusion to rely on the decisions of other courts in determining the scope of such municipal powers here. The rule as applied in this jurisdiction is somewhat at variance with the rule laid down in City of Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 537, 67 L.Ed. 937, 29 A.L.R. 1471. In that case it was said that: "In the absence of state constitutional provisions *** municipalities have no inherent right of self-government which is beyond the legislative control of the state."

This court has said: "A city is but a political subdivision of the state for governmental purposes, owing its very existence to the legislative will, and capable of exercising only such powers as are granted, either directly or by necessary implication." City of Helena v. Helena Light & Ry. Co., 63 Mont. 108, 207 P. 337, 339. This rule in substance, has been reaffirmed in numerous decisions by this court and is in substantial harmony with the decisions in many other jurisdictions. In applying this rule, however, we are not to be unmindful of the rule referred to...