146 Minn. 413 | Minn. | 1920
The appeal is from an order sustaining a demurrer to the complaint. The action is to enjoin the city of Marshall and its officers from paving certain streets. The complaint alleges that plaintiff is a taxpayer in the city of Marshall, a city of the fourth class, organized under the laws of this state; that the city council has properly passed resolutions authorizing certain streets in the city to be paved, and all the steps prescribed by chapter 65, p. 62, Laws 1919, have been taken to make the improvement, including the letting of the contract therefor to the defendant Fielding & Shipley, a corporation; that unless restrained the cost of the improvement, except the paving at the street intersections, will be assessed upon abutting property; that there is not money in the city treasury to pay for the paving at street intersections and the cost thereof, to wit, $35,000, will be assessed as a general tax against the property subject to taxation within the city; that unless restrained the city will issue certificates of indebtedness to provide the means for paying the contractor for such paving, as provided in said chapter 65, and that no election has been held submitting the issuance of such certificates to the legal voters of the city, as required by chapter 10, G. S. 1913 (particularly sections 1854 and 1855). There is no allegation that the city has a home rule charter; it is conceded that it has not.
The question to be determined is whether the governing body of a city of the fourth class, not under a home rule charter, can pave its streets and issue certificates of indebtedness to provide the funds for such improvement, without the same being authorized by the electors at a duly called election. The same arguments now presented on this proposition were made in Lodoen v. City of Warren, supra, page 181, 174 N. W. 741, but it was not necessary to there deeeide it, for the city of Warren had a home rule charter, and as to such cities the act was held unconstitutional. However, it was decided that the act was valid as to all other cities of that class, so that now it is a matter merely of construing its require-» ments.
In section 783, R. L. 1905 (G. S. 1913, § 1854), found in chapter 10 relating to Public Indebtedness, is this inhibition: “No bonds of any municipality shall be issued without the approval, first obtained, of the majority * * * of the voters * * * voting at a special or general
The legislature may authorize a municipality to create bonded indebtedness either by a popular vote, or through their duly elected representatives — in this case the city council, its governing body. The one method, when properly authorized, is as legitimate as the other. Courts are not concerned as to which one is used. Wall v. County of St. Louis, 105 Minn. 403, 117 N. W. 611.
Chapter 65, p. 62, Laws 1919, does not in terms require submission of the question of pavement construction or of borrowing the funds to pay therefor to the electors, and hence section 784 does not directly call for an election in order to carry out the improvement.
It is to be borne in mind that, at the time of the enactment of the chapter on Public Indebtedness (chapter 10), few if any villages or cities of the fourth class had any street pavements. The problem of paving the main streets in and the state highways through the villages and smaller cities is a recent necessity largely occasioned, perhaps, by the ever increasing automobile traffic. The law under consideration seems designed to facilitate the construction of this new necessity, and the procedure is in line with the provisions in respect to paving obtaining in cities of the first class. It is a complete workable ‘law, prescribing the steps to be taken in detail from the inception of the determination to pave to the providing for the payment of the cost. The ultimate expense is to be borne by abutting owners, except that the council may pay for the cost of a payment across intersecting streets and alleys, and one-half the cost of
The provision, giving affected property owners an- opportunity to be heard before the city council is authorized to act upon a paving proposition, seems to negative the idea that a submission to the voters of the propriety of financing the project was contemplated. In this respect chapter 65 follows closely the drainage law and the so-called Elwell law. It is also to be remembered that since the earliest times in this state the keeping of its streets in proper condition for travel has been laid upon every city of whatever class as one of its general duties. Improvement of the streets of a city is not in the same category with such undertakings as providing armories, waterworks, or lighting systems or any other permissible business venture which a city may or may not elect to enter upon, and the funds for which must be provided .wholly by general taxa
That the absence from said chapter 65 of language excepting it from the operation of section 783, E. L. 1905 (G. S. 1913, § 1854), does not signify an intention to subordinate it thereto, is abundantly demonstrated by examining the following acts passed since the enactment of -said section 783, and which undoubtedly authorize city councils to issue and sell bonds without obtaining the electors’ consent, viz.: Chapters 16, 45, 46, 117, 149, 181, 242, 295, 300, 304, 349 and 461, pp. 17, 39, 40, 131, 174, 232, 333, 422, 429, 435, 500, 669, Laws of 1913; cc. 14, 214, 220 and 266, pp. 17, 315, 320, 369, Laws 1915; cc. 16, 93, 99, 102, 114* 199, 349, 368, 373 and 379, pp. 29, 113, 123, 126, 141, 286, 494, 526, 531, 536, Laws 1917; cc. 6, 41, 215, 274 and 524, pp.,9, 37, 211, 284, 731, Laws 1919. A number of these acts, no doubt, affect only the city of Minneapolis, but under none was an election held or thought necessary, although no language in the act excepts it from the operation of said section 783. By the same legislatures other bonding statutes were enacted wherein elections were provided for, or some other check imposed upon the governing body of the municipality, as, for instance, chapters '242 and 303, pp. 333, 431, Laws 1913; cc. 15, 258 and 420, pp. 26, 367, 628, Laws 1917; cc. 265 and 438, pp. 276, 511, Laws 1919.
Cases on repeals by implication are cited and discussed, but that question is not involved, as we view it. No intent to repeal section 783, E. L. 1905, can be spelled out of chapter 65, p. 62, Laws of 1919. The former section remains intact, but is not called into operation under the provisions for issuing certificates of indebtedness pursuant to the later act, which is full and complete in itself. The statute limiting the indebtedness to be incurred by a municipality is upon a somewhat different footing from one which selects the agency or method for contracting a municipal debt. The limit of indebtedness fixed by the legislature may not be exceeded, except by the legislature’s express sanction, no matter whether the indebtedness is contracted by the governing body or by
The case of Beck v. City of St. Paul, 87 Minn. 381, 92 N. W. 328, was decided on the proposition that the bonds proposed to be issued for the erection of an armory exceeded the limitation of the indebtedness imposed upon cities of the first class under home rule charters. The statute there involved was not a full and detailed enactment like the one before us.
Our conclusion is that chapter 65, p. 62, Laws of 1919, should be construed to authorize the city council of a city of the fourth class, not having a home rule charter, to issue certificates- of indebtedness to provide funds for the construction of a pavement without submitting the question to the electors for approval.
The order is affirmed.
