Whipps v. Town of Greybull

• Decision Date: 04 February 1941
• Docket Number: 2165
• Citation: 56 Wyo. 355,109 P.2d 805
• Parties: WHIPPS ET AL. v. TOWN OF GREYBULL
• Court: Wyoming Supreme Court

109 P.2d 805

56 Wyo. 355

WHIPPS ET AL. v. TOWN OF GREYBULL

No. 2165

Supreme Court of Wyoming

February 4, 1941

APPEAL from the District Court, Big Horn County; P. W. METZ, Judge.

Suit by J. J. Whipps, Sr., against the Town of Greybull, Wyoming, and others, to enjoin the town from issuing bonds to obtain funds for the construction of a municipal light and power plant wherein the Mountain States Power Company was granted leave to intervene as plaintiff. From a judgment for the plaintiffs, the defendants appeal.

Judgment affirmed.

For the appellants, there was a brief by F. A. Little of Greybull and Myles P. Tallmadge of Denver, Colorado, and oral argument by Mr. Tallmadge.

Municipalities have inherent, implied, or police powers to provide means for lighting their streets without specific statutory authority. Fawcett v. Mt. Airy Appt., 134 N.C. 125, 63 L. R. A 872; Overall v. Madisonville, 102 S.W. 278. Wyoming statutes give towns authority to provide for street lighting and no one method is exclusive of another. Sec. 22-1427, R S.; Sec. 22-125, R. S.; Chapter 92, Laws 1907; Chapter 73, Laws 1931; Chapter 59, Laws 1921; Sections 22-1601, 1603 1609, R. S.; Section 22-149, 155, R. S.; Chapter 33, Special Session Laws 1933. The power to light streets carries with it the implied power to furnish electricity to the inhabitants of a town. Ronnow v. City of Las Vegas (Nev.) 65 P.2d 133; Cary v. Blodgett, 10 Cal.App. 463, 102 P. 668; Christensen v. Fremont, 45 Nebr. 160, 63 N.W. 364, et seq.; City of Crawfordsville v. Braden (Ind.) 14 L. R. A. 268; Opinion of Justices (Mass.) 8 L. R. A. 487; Keenan & Wade v. City of Trenton, 168 S.W. 1053; Chandler v. Seattle (Wash.) 141 P. 331; Juett v. Williamstown, 58 S.W.2d 411. When the means for carrying out a municipal power are not prescribed, any appropriate means, not prohibited, may be adopted. McCulloch v. Maryland, 4 Wheat. 316; Wadsworth v. Santaquin City (Utah) 28 P.2d 161; Lang v. City (N. D.) 228 N.W. 819; Arnold v. Bond, 47 Wyo. 236. The issuance of revenue bonds is not only not prohibited, but is a valid and accepted method of accomplishing a proper municipal purpose. Winston v. Spokane, 41 P. 888; Shields v. Loveland (Colo.) 218 P. 913; Barnes v. City (Utah) 279 P. 878; Fjeldsted v. City, 28 P.2d 144; Light Co. v. Provo City, 74 P.2d 1191; Carr v. Fenstermacher (Nebr.) 228 N.W. 114; Underwood v. Fairbanks Co., 185 N.E. 118; Williams v. Village of Kenyon (Minn.) 244 N.W. 558; Butler v. City of Ashland (Ore.) 232 P. 655; Garrett v. Swanton, 13 P.2d 725; Shelton v. City of Los Angeles (Calif.) 275 P. 421; State v. City of Miami (Fla.) 152 So. 6. It will be found that the cases holding against the "special fund doctrine" in a number of states, such as Maryland, Missouri, South Dakota, Illinois, California, North Dakota, Georgia, Indiana, New York, Pennsylvania, Idaho, Minnesota and Wisconsin, have been overruled. Revenue bonds do not constitute indebtedness within constitutional and statutory provisions, and the agreement to maintain rates imposes no pecuniary liability. Annotation 72 A. L. R. 688; 96 A. L. R. 1385; Company v. Wagoner (Okla.) 81 F.2d 209. The above authorities dispose of the contention that the revenue bonds will exceed the limitations specified in Section 3, Article XIII of the Wyoming Constitution. City of Bowling Green v. Kirby (Ky.) 295 S.W. 1004. An election is necessary only when it is proposed to issue general obligation bonds involving taxation. State v. Miami (Fla.) 152 So. 6; Cathcart v. City of Columbia, 170 S.E. 435. The town is not obliged to secure a certificate of public convenience and necessity because: (A) The law providing therefor is unconstitutional; (B) The question can be raised by the state only; and (C) Respondents' action in this respect is premature. The state of Montana, Colorado and Utah have constitutional provisions similar to Article III, Section 37 of the Wyoming Constitution. The following cases are pertinent: Holyoke v. Smith (Colo.) 226 P. 158; Logan City v. Public Utilities Commission, 271 P. 961; Commission v. City of Helena (Mont.) 159 P. 24; Baxter Co. v. Telephone Association (Kan.) 146 P. 324. The ordinance providing a sale of the property is lawful. The manager of the plant will not be a town officer, and his appointment will not deprive the council of its control over town property. State v. Hawkins, 257 P. 411. The ordinance and bonds will be binding on succeeding officers of the town. Pikes Peak Power Co. v. City of Colorado Springs, 105 F. 1; Heberer v. Chaffee County (Colo.) 293 P. 349. Respondents' fears and conjectures do not warrant judicial interference with the municipal discretion. See Ogden case, supra.

For the respondent, there was a brief by Joseph O. Spangler of Greybull.

There is no statutory power for the issuance of revenue bonds. The ordinance is contrary to Section 4, Article 16 of the Constitution and Section 22-1603, R. S. 1931. The amendment of the ordinance likewise violates the constitution and statutes of the state. The Town of Greybull is without power or authority to issue revenue bonds of the class proposed. 43 C. J. 186; 19 R. C. L. 768, Article 13, Section 3, Constitution. While there is some conflict to be found in the authorities as to the power of municipalities to borrow money, we believe the weight of authority is to the effect that the power exists only when conferred by express legislative grant. 44 C. J. 1107, Sec. 4030; Sections 4 and 5 of Article 16 of the Constitution. The rule of strict construction applies. 43 C. J. 195. It is true that municipalities in Wyoming have authority to establish and regulate light plants. Section 22-1601, R. S. But the amount of the debt and the manner of creating it is limited. Section 22-1603, R. S. 1931. Bonds cannot be issued without the vote of the people. Section 22-1605, R. S. Such bonds must be advertised for public bidding. Section 22-1608, R. S. Light plants may be acquired by eminent domain (Chapter 78, Laws 1933), but the bonds must be within the debt limitation fixed by statute and authority for issuance must be voted by the people. Sections 36-402-405, R. S. None of the above have been observed or followed by the Town of Greybull. Ordinance No. 247 unlawfully delegates power to a manager. 19 R. C. L. 798; 43 C. J. 239, 245. The so-called revenue bonds here in question created an indebtedness against the town and charge the town with duties prohibited by law. Annotation 72 A. L. R. 687 and 96 A. L. R. 1385; Feil v. Coeur d'Alene, 129 P. 634; Miller v. City of Buhl, 284 P. 843. The California cases cited by appellant are not in point. The Wyoming case of Arnold v. Bond, 47 Wyo. 236 relates to the peculiar facts arising in that case. Moreover, it was based upon a special statute. Another element of obligation that creeps into the present case is that of damages for which the town makes itself liable to the contractor, if it has neglected lawful means for the payment of the improvement. 44 C. J. 1238; 44 C. J. 406; Henning v. City of Casper (Wyo.) 57 P.2d 1264. The case of Richardson v. City of Casper, 48 Wyo. 219 is similar to the Henning case, but the difference in facts justified an opposing decision. The ruling of the court below should be affirmed.

For the intervener, there was a brief by Hagens & Wehrli of Casper, and oral argument by Mr. Hagens.

The appeal should be dismissed for want of jurisdiction. The appeal record is defective in several particulars, among them, a lack of proper certification. Farmers Bank v Investors Co. (Wyo.) 45 P.2d 1057; Canal Company v. Akin, 27 Wyo. 88; Lindback v. Lackey, 41 Wyo. 493. The record fails to show a proper service of notice of appeal. Culbertson v. Ainsworth, 26 Wyo. 214. The record fails to show the entry of the judgment. Faulkner v. Faulkner, 27 Wyo. 62; Holliday v. Bundy, 42 Wyo. 61; Hahn v. Bank, 25 Wyo. 467. The following cases hold that the filing of the record within seventy days after the ten days allowed for filing and service of notice is jurisdictional. Coffee v. Harris, 27 Wyo. 394; Peterson v. Spaugh, 31 Wyo. 26; Berry v. Sample, 28 Wyo. 272; Scott v. Wyo. Rock Products Company, 37 Wyo. 527; Woodruff v. Cokeville Company, 38 Wyo. 70; Wy-Tex Corp. v. McCullough, 49 Wyo. 406; Wolfe v. Carroes, 37 P.2d 680. The filing and serving of notice of appeal, within ten days after a judgment, must be shown by the record to give the court jurisdiction. Spencer v. Lowenstein, 29 Wyo. 31; Koch v. Koch, 41 Wyo. 450. Statutory authority to issue bonds for enumerated purposes, pursuant to outlined statutory procedure, precludes the right to issue bonds in any other way. The ordinance relied on by appellant is invalid on its face. The following statutes cited by appellant have no bearing on this case: Sections 22-125; 22-149; 22-155, Chapter 33, Special Laws 1933. The statutes bearing some relation to the case and which should be considered are: Article XVI, Chapter 22, R. S. 1931; Section 22-1603, R. S., 22-1605 and 22-1609, R. S. There is no provision in any of them for the issuance of any so-called "revenue bonds." Chapter 78, Laws 1933 and Section 22-1427, R. S. 1931 authorizing towns to provide for street lighting are entirely foreign to the question. 19 R. C. L. 993; 44 C. J. 1177; McQuillin on Municipal Corporations, 6th Ed., Sec. 2439, p. 159; Hesse v. City of Watertown (S. Dak.) 232 N.W. 53; City v. Foster (Okla.) 48 P.2d 289; Kaw Valley v. Kansas City (Kan.) 239 P. 760; People v. Chicago Heights (Ill.) 150 N.E. 262; Keel v. Pulte (Tex.) 10 S.W.2d 694; Byrum v. City of Shawnee (Okla. ) 200 P. 183; Bohannon v. City of Louisville, 233 S.W. 750; Bradbury v. City (Idaho) 177 P. 388. The case of Arnold v. Bond, 34 P.2d 28 applies to the peculiar facts in that case and to none other. The authority to...