Stewart v. City of Cheyenne

Decision Date13 December 1944
Docket Number2310
Citation154 P.2d 355,60 Wyo. 497
PartiesR. K. STEWART, THOMAS C. COWLEY, SIMON E. O. MEYER, PAUL LAVERENTS and R. A. MORTON, Plaintiffs, v. THE CITY OF CHEYENNE, a Municipal Corporation, IRA L. HANNA, Mayor, GUS E. FLESCHLI and BRUCE JONES, Commissioners of the City of Cheyenne, Wyoming, BOARD OF PUBLIC UTILITIES, WILLIAM A. NORRIS, WILLIAM J. DINNEEN, JOHN U. LOOMIS, DON H. WAGEMAN and FRED E. WARREN, Members of the Board of Public Utilities of said City of Cheyenne, Wyoming, Defendants
CourtWyoming Supreme Court

Reserved Case from Laramie County; Sam M. Thompson, Judge.

Action by R. K. Stewart and others against the City of Cheyenne and others to determine the constitutionality of Laws 1943, c 109, which permits the establishment of a Board of Public Utilities. On constitutional questions certified by the District Court.

Questions answered.

For the plaintiffs there was a brief and also oral argument by Clyde M. Watts and Howard B. Black, both of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR PLAINTIFFS

The principle of home rule, or the right of self government as to local affairs existed before we had a constitution. A statute which attempts to take away from a municipal corporation its power of self government, except as to matters which are of concern to the state as a whole is in excess of the power of the legislature and is consequently void. 37 Am. Jur. 690.

In all matters of general concern there is no local right to act independently of the State. Though municipal authorities are made use of in State government, and as such are under complete State control, they are not created exclusively for that purpose, but have other objects and purposes peculiarly local, and in which the state at large is legally no more concerned than it is in the individual and private concerns of its several citizens.

The legislature has the general right to prescribe the duty and authority of municipal officers, but unless there are some limitations upon that right, the constitutional guaranty of local self government would be without meaning. People v Hurlbut, 24 Mich. 44; 9 Am. Rep. 103; State v Edwards, 42 Mont. 135; 22 Ann. Ca. 1063.

The legislature has no power to vest the levying of a tax in a body not directly responsible to the people of the City. The levy and collection of a tax is a taking of the property of the tax payer against his will, and such a necessary, arbitrary, and far-reaching power ought not to be conferred upon a body of persons who are not the direct representatives of the people, who are not elected by them and who, therefore, are not directly responsible to them, unless the people assent thereto. State v. Mayor and City Council of Des Moines, (Iowa) 103 Iowa 76; 64 Am. St. Rep. 157.

When operating in its proprietary capacity a city is subject to the same burdens and responsibilities as a private corporation or individual acting in the same capacity, and it must logically follow that when acting in such capacity, it is entitled to the rights, privileges and immunities accorded to others. State ex rel. v. Holmes, (Mont.) 47 P. 2d 624; 100 A.L.R. 581.

A municipal corporation acts as a private corporation when it enters into contracts with its inhabitants, as to supply gas, and is subject to the same duties, liabilities, and disabilities as individuals. Western Sev. Fund Soc. v. Philadelphia, 31 Pa. St. 175; 72 Am. Dec. 730; People v. Coler, 166 N.Y. 1; 59 N.E. 716; 82 A.S.R. 605-609; Davidson v. Hine, 151 Mich. 294; 123 A.S.R. 267.

It is almost universally conceded that the operation of a waterworks system, by which a supply of water is brought into a town and distributed by means of pipes to the residences and places of business of the inhabitants, is undertaken by the municipality in its private or proprietary capacity. 19R.C.L. 764; People v. Detroit, 28 Mich. 228; 15 Am. Rep. 202; Ann. Cas. 1912A 1063 and note; City of Lexington v. Thompson, 113 Ky. 540, 68 S.W. 477, 101 A.S.R. 361-367; City of New Orleans v. City of New Orleans Water Works, 142 U.S. 79; 12 S.C. 142, 35 L.Ed. 943; People v. Mayor of Chicago, 51 Ill. 17; 2 Am. Rep. 278.

The constitutional validity of a law is to be tested not by what has been done under it, but by what may be done under it. Rd. Co. v. Board Rd. Comrs. 247 P. 163-165.

Section 6 of Chapter 109, Laws of 1943, is clearly unconstitutional for the reason that the amount of salary to be paid to the office manager is to be fixed by the Board of Public Utilities. State v. Sheldon, 29 Wyo. 233-249.

The legislature cannot deprive the city council, or other legislative body, of all discretion with respect to a local improvement within the limits of the city, when by the charter the matter of such improvements is confided to the judgment and discretion of the local body. People v. Lynch, 51 Cal. 15; 21 Am. Rep. 677; State v. Lynch, (Ohio) 88 Ohio St. 71; 34 Ann. Cas. 949; State v. Moores, (Neb.) 41 L.R.A. 624-629; People v. Coler, (N.Y.) 82 A.S.R. 605-609-610.

For the defendants there was a brief and also oral argument by Edward T. Lazear and Carleton A. Lathrop, both of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR DEFENDANTS

Municipal corporations are creatures of legislative enactment; and, in the absence of inhibitory or limiting constitutional provision, the legislature has plenary power to adopt such measures as shall in its judgment be most conducive to their efficiency and usefulness.

Section 37 of Article 3 of the Wyoming Constitution which forbids the delegation of municipal function to any special commissioner, is not applicable. The Board of Utilities, as created by the Act, is not such a person or body. "It is not a 'special commission,' within the meaning of that phrase as it was understood by the framers of the constitution. * * * It is, like the board of health, fire, and other departments, permanent in its nature, being charged with certain continuous duties and vested with certain perpetual powers. * * * The board is an administrative agency or instrument employed exclusively in the control and management of the city's improvements and other interests. In no material respect * * * does it essentially differ from the other departments by means of which the public interests are promoted, and the public health, peace and welfare protected, within the municipality." Senate Bill Providing for Board of Public Works (Colo.) 21 P. 481. Milheim v. Moffat Tunnel Improvement Dist., 211 P. 649; State v. Edwards, 99 P. 940, 942; Town of Holyoke v. Smith, 226 P. 158, 160; Crown Products Co. v. Pennsylvania P. Utility Com'n., 32 A.2d 305, 310; Tranter v. Allegheny County Authority, 173 A. 289, 294; Dornan v. Philadelphia Housing Authority, 200 A. 834, 844.

In Re Pfahler (Cal.) 88 P. 270, 277: The prohibition concerning the delegation by the Legislature to any "special commission" to perform any municipal function, was to prevent the State Legislature from interfering with local governments by the appointment of its own special commissions for the control of purely local matters.

The Legislature has the power to create offices, establish their tenure, define the eligibility of those seeking such offices, fix their compensation or duties, change the tenure, compensation or duties, and abolish all of such offices other than those provided for in the constitution. The Legislature may also delegate to cities and towns in furtherance of the administration of local governmental functions the power to create, maintain and abolish offices and to regulate and control the official conduct of their incumbents. Nichols v. Commissioner, (Mass.) 40 N.E. 2d, 275, 279.

The framers of the Constitution, and subsequent Legislators, have all treated the word "officer" in effect, as one who performs public functions, or who is required to take an oath of office, as distinguished from a mere employee whose job or position rests in contract.

The courts have stated certain distinctions, such as that a municipal office is created only by legislation, while the relation of an employee to a municipal corporation is based solely upon contract; an officer is generally required to take an oath of office, but an agent or employee is not required to do so; an officer performs public functions delegated to him as part of the sovereign power of the state, but no share of the sovereign powers or functions of the government is vested in an employee. Sec. 1613, 43 C.J. 887.

There is no constitutional requirement in connection with the fixing of the salary of an office manager, but the Board itself, under the ordinance, has full power to regulate and fix the same by contract. The office manager is an employee only. 43 C.J. 596, Sec. 973.

BLUME, Justice. KIMBALL, C. J. and RINER, J., concur.

OPINION

BLUME, Justice.

This action was brought by the plaintiffs herein as taxpayers of the City of Cheyenne, in the District Court of Laramie County, to determine the constitutionality of Chapter 109 S.L. 1943, which permits the establishment of a Board of Public Utilities. Chapter 1 of the legislative act provides that every city having a population of 10,000 and which operates municipal water works may establish a board of commissioners to be known as the Board of Public Utilities, and that when such Board has been appointed and established that it shall not be abolished except by a majority vote of the qualified electors at a regular city election. Section 2 provides that the Board of Public Utilities shall consist of five members to be appointed by the mayor with the advise and consent of the city council. One member of the Board shall be appointed for a term of two years, two for a term of four years, and two for a term of six years. Thereafter each member of the Board shall be appointed...

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