Bradbury v. City of Idaho Falls

MORGAN, J. It appears from the pleadings and from a stipulation of facts, submitted to the district court in lieu of evidence, that the city council of Idaho Falls passed an. ordinance declaring it to be necessary and advisable for the city to incur an indebtedness; and to issue bonds, in the sum of $35,000, for the purpose of providing necessary funds to pay the cost' of acquiring an adequate electric light and power plant “by enlarging, extending, repairing, altering and improving” the plant it owned. Pursuant to the ordinance an election was held which resulted in favor of the indebtedness being incurred and the bonds being issued for the purpose above -stated. This action was commenced by a taxpayer to procure an injunction restraining the city, its officers and agents, from consummating the issuance and sale of the bonds. A judgment of dismissal was entered from which this appeal is prosecuted. [32] The one question presented is as to the right of the city to issue and sell bonds to raise funds for the purpose of providing an adequate electric light and power plant by enlarging, extending, repairing, altering and improving one it now owns. The power of municipalities to issue bonds must be found in a legislative enactment. Such an enactment is a grant of authority from the state to the municipality and must be construed with strictness against the grantee. -The rule is thus stated in Dillon on Municipal Corporations, 5th ed., vol. 1, sec. 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.....” (State v. Superior Court, 93 Wash. 267, 160 Pac. 755, L. R. A. 1917B, 354; City of Independence v. Cleveland, 167 Mo. 384, 67 S. W. 216; State v. Temple, 99 Neb. 505, 156 N. W. 1063; Sharkey v. City of Butte, 52 Mont. 16, 155 Pac. 266; People v. Western etc. Traction Co., 214 N. Y. 526, 108 N. E. 847; Farwell v. City of Seattle, 43 Wash. 141, 10 Ann. Cas. 130, 86 Pac. 217; State v. Wilder, 200 Mo. 97, 98 S. W. 465; Boise City v. Boise Artesian H. & C. Water Co., 186 Fed. 705, 108 C. C. A. 523.) The law of this state which grants to cities and villages authority to issue bonds in cases of this kind is to be found in Rev. Codes, sec. 2315.' That section has been frequently amended since the codification of our laws in 1908, and the portion of it relating to waterworks and light and power plants, as it was prior to the 1917 amendment, appears in Sess. Laws 1915, chap. 44, p. 130, as follows: “Every city, town or village, incorporated under the laws of the Territory of Idaho or of the State of Idaho shall have power qnd authority to issue municipal coupon bonds in a [33] sufficient amount to acquire, by purchase or otherwise, a waterworks plant for such municipality and a water supply therefor. “Every city, town or village, incorporated under the laws of the Territory of Idaho or of the State of Idaho, shall have power and authority to issue municipal coupon bonds in a sufficient amount to acquire, by purchase or otherwise, a light and power plant for such municipality.” See. 2315 was last amended in Sess. Laws 1917, chap. 16, p. 43, and now provides: “Every city, town or village, incorporated under the laws of the Territory of Idaho or of the State of Idaho shall have power and authority to issue municipal coupon bonds in a sufficient amount to acquire, by purchase or otherwise, a waterworks plant for such municipality and a water supply therefor, and to construct, enlarge, extend, repair, alter and improve such plant..... “Every city, town or village, incorporated under the laws of the Territory of Idaho or of the State of Idaho, shall have power and authority to issue municipal coupon bonds in a sufficient amount to acquire, by purchase or otherwise, a light and power plant for such municipality.” It will be observed that by the amendatory act express authority was granted to issue bonds in order to raise funds with which to enlarge, extend, repair, alter and improve a waterworks plant belonging to a city or village, but that the express authority with respect to bond issues for light and power plant purposes remains as it was before the amendment and is confined to acquiring such plants by purchase, or otherwise. The manifest purpose of permitting municipalities to issue bonds and to apply the proceeds of the sale of them to acquiring light and power plants is that they and their inhabitants may procure adequate light and power at reasonable rates and under management responsive to the will of their citizens. It does not follow, nor may it be fairly implied in, or as incident to, the power to acquire such a plant and to issue and sell bonds to raise funds with which to pay the cost of [34] acquiring it, that bonds may be issued and sold in order to raise funds with which to enlarge, extend, repair, alter and improve one already owned by a city, nor is power to do so essential to the accomplishment of the objects and purposes of such a municipal corporation. It appears to have been the legislative intent that, while a light and power plant may be acquired by means of a bond issue, it must be enlarged, extended, repaired, altered or improved, if found necessary or desirable to do so, with funds derived from its operation, or, at least, from some other source than the sale of bonds. Some of these items clearly are, and others may be, within the scope of maintenance, and there is nothing in the law to suggest a legislative intent that a municipality may raise money with which to maintain its light and power plant by the means here sought to be employed. Assistance in discovering the legislative intent is to be derived from’ the fact that authority has been expressly granted to issue bonds to enlarge, extend, repair, alter and improve waterworks plants, while such authority has not been so granted, for like purposes, with respect to light and power plants, although both subjects were treated in the same amendatory act. Had it. been intended to grant to municipalities the power here sought to be employed by the city of Idaho Falls, the legislature would have made that intention as clear and unmistakable in the one instance as it did in the other. The supreme court of the United States, in Thomas v. West Jersey R. R. Co., 101 U. S. 71, 25 L. Ed. 950, see, also, Rose’s U. S. Notes, said: “Conceding the rule applicable to all statutes, that what is fairly implied is as much granted as what is expressed; it remains that the charter of a corporation is the measure of its powers, and that the enumeration of these powers implies the exclusion of all others.” Power of municipal corporations in Idaho, to issue and sell bonds for the purposes sought to be served in this case, is neither expressed nor implied in the grant of authority from [35] the legislature. The judgment appealed from is reversed. Costs are awarded to appellant. Bice, J., concurs.