65 P.2d 133 | Nev. | 1937
Lead Opinion
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The plaintiff has not shown a special injury to himself not common to all persons in general. Consequently, he is not entitled to sue. If there be an injury to the public generally, the action must be brought in the name of the state. 6 McQuillin Mun. Corp. (2d ed.) 695; Schefflien v. Craig,
It is hard to see how the legislature could have used more expressive or language broader in scope to grant the city full and complete power to establish light plants for all purposes, than that in chapter 36 of the 1935 session laws. We find in section 4 of chapter I that the city may acquire, purchase, operate, and maintain, etc., municipal power plants, electrical or otherwise "or other public utility"; and in subsection 5 of section 5 of chapter II we find that the said board shall have power to acquire or establish municipal power plants "or other public utility, only in the manner herein provided." In determining the legislative intent, this language is tremendously important.
"Public utility" is defined as a "public organization *337 which regularly supplies the public with some commodity or service, as electricity, gas, water, transportation, telephone or telegraph service." Webster's New International Dictionary. See, also, 51 C.J. 5; 66 C.J. 379; 50 C.J. 845; The New Century Dictionary, pp. 1423, 2118. A consideration of the doctrine of ejusdem generis will be helpful at this point. 59 C.J. 981, 982.
It would be well here to consider the meaning of words granting authority to the city, as defined in the following authorities: "Purchase": 2 Blackstone Comm. 241; 41 C.J. 94, n. 63; "receive": Century Dictionary; Sulman v. State,
It would be an impeachment of reason and common sense to say that the legislature, by its amendments of 1935, intended to give the city power to erect a plant to light its streets and public buildings only, for the city had that authority by virtue of subsections 37 and 38 of section 31 of the original act.
No appeal was taken by the respondent from the order dismissing the second and third alleged causes of action. Obviously, then, there is nothing before the court other than so much of the decree as has been appealed from, which is paragraph four only. Section 8375 N.C.L. merely states what questions may be reviewed upon appeal; but it does not undertake to supply the mechanics with which an appeal may be taken. So far as procedural matter is concerned, we must look exclusively to the practice act of 1935. The judgment upon the second and third causes was not an intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment. It became as final as it was judicially possible to make it, and, consequently were appealable orders and were, therefore, expressly excepted from section 12 of the *338
practice act. Furthermore, it is well settled in this state that the appellate court will not consider errors committed against the respondent. Maher v. Swift,
Under the authority of the charter and the proclamation, the board was empowered to make the bonds a general lien against all of the property of the city.
The bonds contemplated to be issued under the authority of the ordinance in question are public utility bonds and payable wholly from the revenues to be derived from the sale of power. Hence, the provisions of section 6090 N.C.L. apply, and not those of section 6085 N.C.L.
Where a special act of the legislature deals with the subject matter of a proposition and provides the procedure to be followed, such special law is exclusive and cannot be controlled by any general law. National Bank v. Boise City, 100 P. 93; Owens v. Doxey,
A municipal corporation possesses no powers or faculties not conferred upon it, either expressly or by fair implication, by the law which created it, or by other laws, constitutional or statutory, applicable to it. Dillon on Municipal Corporations (5th ed.), sec. 237; McQuillin, vol. 1, pp. 909-911, 921; Consumer's Coal Company v. Lincoln (Neb.),
In the grant of power in the original charter act, the city is authorized to provide for lighting the streets and *339
other public places specifically enumerated. The effect of such specific enumeration is clearly to exclude the furnishing of power for their private uses to the inhabitants of the city, under the well-settled rule of statutory construction peculiarly applicable to the powers of a municipal corporation, expressio unius est exclusio alterius. 14a C.J. 269; Ex Parte Arascada,
To give a meaning to the word "acquire," added by the amendatory act, that would deem same to include "construct" would be destructive of the clear limitations of the act so limiting the grant of power in that respect, and would render section 4 of chapter I of the original charter act, as amended by section 1 of said Act of 1935, directly and hopelessly in conflict with subdivisions 34, 36, 37 and 38 of section 31 of chapter II of said original charter act, as reenacted in section 5 of the amendatory act of 1935. Specific provisions rather than general provisions are controlling. McQuillin Munic. Corp., vol. 1, p. 921, n. 56; City of Chicago et al. v. Gunning System,
The words "municipal power plants, electrical," as used in section 1 of the amendatory act of 1935 must be given a meaning that will harmonize with, and not transcend, the only purpose or objective stated in the original charter act and in said amendatory act, which involves the use of power to provide for lighting the streets or other public places of the city.
The legislature, by employing in said section 1 of the act of 1935 the words "power plants," rather than "light works," merely described the contemplated plants or works more accurately.
It is certain that the word "establish" cannot be deemed to include the word "construct." Words and Phrases (1st series), vol. 3, p. 2470; Village of Brockport v. Green,
The decision or order sustaining the demurrers to the second and third causes of action not being an *340 appealable order (sec. 8885 N.C.L., as amended), and the so-called judgment whereby those causes of action were dismissed is not a final judgment within the meaning of the term as used in subdivision 1 of sec. 10, Stats. 1935, p. 197, then this court is expressly authorized by sec. 12 of Stats. 1935, p. 198, to review and consider the correctness or otherwise of the ruling of the lower court sustaining said demurrers, and in fairness and justice should do so.
It is clear that the ordinance does not conform to the proclamation in the vital matter of manner of the redemption of the bonds, and is, therefore, in violation of the charter provisions.
If the proposed bonds are general obligation bonds, then the proposed bond issue does not conform to section 6085 N.C.L. which requires that all bonds of a municipality shall be redeemed in equal annual installments.
And if the bonds are not wholly payable from the earnings of the utility, sec. 6085 N.C.L. would apply and govern the bond issue.
The proceedings leading up to the proposed bond issue do not conform to the provisions of ch. 95, Stats. 1933, p. 116.
On October 4, 1935, the board of city commissioners *341 issued a proclamation proposing to bond the city for the acquisition or construction of a municipal power distribution system for furnishing electrical energy to the inhabitants of said city. Said proclamation was published for three successive weeks, as required by the statute, and on the 4th day of November 1935, the board enacted an ordinance providing for the bond issue set forth in said proclamation.
On December 5, 1935, respondent (plaintiff in the court below), a citizen of this state, and a resident and taxpayer of said city, commenced an action in said district court praying that the defendants be enjoined from issuing the contemplated bonds. The first cause of action alleged that the defendants were without power to acquire or construct a power plant or lighting system for the purpose of furnishing electrical energy to the individual inhabitants or power users of said city. The amended second cause of action alleged that defendants had failed to comply with the requirements of the statute as to the essential proceedings necessary to be taken before issuing such bonds. The amended third cause of action alleged that defendants had failed to submit the proposal for said bond issue to the electors of said city, as required by the provisions of chapter 95 of the 1933 Statutes of Nevada. The district court, on general demurrer, held that the first cause of action stated facts sufficient to constitute a cause of action, but that neither the second nor third cause of action stated sufficient facts to constitute a cause of action. Defendants having elected to stand on their demurrer to the first cause of action, and plaintiff having failed to further amend his second and third causes of action, the court dismissed said second and third causes, and granted plaintiff a perpetual injunction against the issuance of the proposed bonds.
1. We shall first consider whether defendants had the power to issue and sell bonds for the purposes set forth in the aforesaid proclamation. In Tucker v. Virginia City,
2. McQuillin, in his work on Municipal Corporations, vol. 1, sec. 367, p. 910, uses this language: "Wherefore the usual formula, invariably supported by judicial utterances and judgments, in substance is: That the only powers a municipal corporation possesses and can exercise are: (1) Those granted in express terms; (2) those necessarily or fairly implied in, or incident to, the powers expressly granted; and (3) those essential to the declared objects and purposes of the municipality, not merely convenient, but indispensable." In the same work, section 356, the author says: "While a strict construction should be applied to the grant of powers to municipalities and especially those which result in public burdens, yet if the power is clearly implied, it should not be impaired by a strict construction. A strict construction must yet be a sensible construction and be based upon the entire context. Or, as it is sometimes put, the power given by a charter is a matter of reasonable construction."
In Chapman v. Hood River,
Dillon Municipal Corporations (5th ed.) vol. 1, sec. *343 237: "It is a general and undisputed proposition of law that amunicipal corporation possesses and can exercise the followingpowers, 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. Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not authorized thereby, or by some legislative act applicable thereto. All acts beyond the scope of the powers granted are void."
Respondent does not contend that the legislature cannot confer upon a city the power to acquire a municipal light and power plant and furnish lights and power to the inhabitants for their private uses; nor that, if the legislature had conferred such powers upon the city of Las Vegas, it could not enter into competition with Southern Nevada Power Company, which now is and for many years last past has been lawfully engaged in the business of furnishing light, heat, and power to the inhabitants of said city. "What we have contended, and do contend," say counsel, "is, that the City has no power or authority to construct such a plant, and to take such action as the published proclamation and the ordinance passed pursuant thereto clearly show to be contemplated, and has no right to issue and sell its bonds for the purposes stated in said proclamation and ordinance, and not having such power or authority, conferred by the statute or statutes, the City is not authorized, and has no right, to undertake any such ultra vires and unauthorized action, and, therefore, has no power or authority to do so in competition with the existing power company, or otherwise, or at all." *344
Inasmuch as the city of Las Vegas derives its powers solely from the legislative enactment incorporating it (chapter 132, Statutes of Nevada 1911, and amendments thereto), it becomes necessary to examine the pertinent provisions of that act and of the amendments which have been made to it; for, as has been said by the supreme court of the United States, "No matter how much authority there may be in the legislature to grant a particular power, if the grant has not been made the city cannot act under it." City of Ottawa v. Carey,
Section 4 of subchapter 1 of c. 132 of said act of 1911, as amended (Statutes of Nevada 1935, c. 36, p. 41), provides in part that the city "may purchase, receive, hold and acquire, manage and enjoy, operate and maintain, municipal water works and municipal power plants, electrical or otherwise, or other public utility."
Clause 5 of section 31 of subc. 2 of said act of 1911, as amended (Statutes of Nevada 1935, c. 36, pp. 43-46), which deals with the power of the city to borrow money and limits the amount of outstanding bonds, warrants, certificates, script, etc., provides in part that: "Nothing herein contained shall be construed to restrict the powers of said city as to taxation, assessment, borrowing money, contracting debts or loaning its credit for procuring supplies of water, municipal water works, municipal power plants, electrical or otherwise, or other public utility. * * * The board shall have the power to acquire or establish municipal water works, municipal power plants, or any public utility, only in the manner herein provided. The board shall issue a proclamation which shall set forth briefly the supply of water, municipal water works, the municipal power plant, or other public utility proposed to be acquired or established."
Clauses 34, 36, 37, and 38 of said amended section 31, which, except for inconsequential changes in clause 36, remain as enacted in 1911, provide that the city shall have power — *345
"34. To provide for the lighting, sprinkling and cleaning of the streets, alleys, avenues, sidewalks, crosswalks, parks and public grounds. * * *
"36. To contract with, authorize or grant to any person, company or association a franchise to construct, maintain, and operate gas, electric or other lighting works in the city, and to give such persons, company or association the privilege of furnishing light for the public buildings, streets, sidewalks and alleys of said city.
"37. To provide for the lighting of streets, laying down of gas pipes and erecting of lamp posts; to regulate the use of gas, natural gas and electric and other lights and electric power, and to regulate the inspection thereof.
"38. To construct and maintain waterworks, gasworks, electric-light works, street railways, or bathhouses, or to authorize the construction and maintenance of the same by others, or to purchase or lease any or all of said works from any person or corporation."
Appellants suggest that even without the 1935 amendments it might well be held, in view of the language of said clause 38, that the city would have power to acquire a power plant and furnish the inhabitants, as well as the city's public places with electrical energy. Were it to be conceded that under said clause 38 the city would have power to furnish electric lights to the inhabitants and private places of business in Las Vegas, the rules of strict construction make it doubtful, to say the least, whether the city would have power, by virtue of that clause, also to furnish them with electrical energy for motors and heating. Appellants, however, rely chiefly upon amended section 4 of subc. 1 and amended clause 5 of section 31, subc. 2 (Stats. of Nevada 1935, c. 36, pp. 41, 43). It thus becomes necessary to examine into the meaning of some of the language used in the 1935 amendments, particularly the phrases "public utility" and "municipal power plants," and the word "acquire."
3. The definition of the term "public utility" given *346
in section 6106 N.C.L. is confined to the particular classes of public utilities dealt with in the public service commission act of March 28, 1919, as amended (sections 6100-6146 N.C.L.). Said definition is not applicable to the term "public utility" as used in the statutes heretofore quoted in this opinion. Payne v. City of Racine,
Municipal gas plants (Pierce v. City of Hamilton,
In Thompson-Houston Electric Co. v. City of Newton (C.C.), 42 F. 723, a statute conferring power to establish and maintain electric light plants, or to authorize the erection of the same and providing that the city should have power to issue bonds for the purpose of establishing electric plants, was held by the court to authorize the city to erect an electric plant for furnishing lights for use in the houses and stores of the inhabitants as well as for lighting the streets and public places of the city.
In Platt v. City and County of San Francisco, supra, a taxpayer sought to enjoin the city from proceeding to issue and sell "Geary Street Railway Bonds." The charter provided that: "The city and county shall have power to acquire, construct or complete any public utility from funds derived from taxes levied for that purpose." In its opinion the court said: "The only question, then, is as to the meaning of the term `public utility' as used in this section and in the other sections *347 of the same article. The term is certainly broad enough to include a street railroad; is one that would ordinarily be understood as including any such utility as is employed in the rendition of quasi public service, such as waterworks, gasworks, a telephone system, street railroads, etc."
Cary v. Blodgett,
In Christensen v. City of Fremont,
In the case of Jacksonville Electric Light Co. v. Jacksonville,
In Smith v. Mayor of Nashville,
4. In the light of the foregoing, we are clearly of opinion that the legislature, in conferring upon the city of Las Vegas the power to "purchase, receive, hold and acquire, manage and enjoy, operate and maintain, municipal water works and municipal power plants, electrical or otherwise, or other public utility," intended to confer and did confer, amongst other powers, that of furnishing electrical energy to the inhabitants of the city in their homes and places of business. This conclusion is supported by the views expressed by Doctor Pond in his work on Public Utilities.
But we are now confronted with another question. The proclamation published by the board of city commissioners set forth that it was proposed to acquire or construct a municipal power distribution system; but the grant of power in amended section 4 of subc. 1 of the act incorporating the town of Las Vegas does not use the word "construct." We are thus called upon to decide whether the words "may purchase, receive, hold and acquire, manage and enjoy, operate and maintain" empower the city of Las Vegas to construct a municipal power plant.
In Clark v. City of Los Angeles,
The construction placed upon the word "acquire" by the supreme court of California in Clark v. City of Los Angeles, supra, was quoted with approval by the supreme court of Idaho in King v. Independent School District,
In Hartigan v. City of Los Angeles,
In Verner v. Muller,
5. The word "establish" is not used in the grant of power contained in amended section 4 of subc. 1 of said act of 1911. It does occur, however, several times in said amended clause 5 of section 31, subc. 2, of said act. In said clause 5 we find the following sentence, already quoted herein: "The board shall have the power to acquire or establish municipal water works, municipal *350 power plants, or any public utility, only in the manner herein provided." On page 44 of the 1935 Statutes of Nevada, at the end of the paragraph from which we have just quoted, we find also the following provision: "provided further, however, that even though no such petition be filed, or if at such election the question is carried by such majority vote, the said board may, in its discretion, abandon and discontinue all such proceedings to acquire or establish such municipal water works, municipal power plant, electrical or otherwise, or other public utility, upon adoption of a resolution to the effect that such board does not at such time deem it to the best interests of said city to acquire or establish such municipal water works, municipal power plant, electrical or otherwise, or other public utility."
It is proper that we should consider the meaning of the word "establish," as used in said clause 5, in endeavoring to arrive at the proper construction to be placed upon the grant of power in said amended section 4.
In Iowa Service Co. v. City of Villisca,
In Caldwell v. City of Alton,
In People ex rel. Reynolds v. Atchison, T. S.F. Ry. Co.,
In Ketchum v. City of Buffalo, 21 Barb. (N.Y.) 294, the supreme court of New York construed the words "to establish and regulate markets in the city" in the charter of the city of Buffalo, and held that said language conferred upon the city the power to purchase land and to erect buildings thereon for market purposes. The court said: "The authority to any one to establish a thing, is an authority to take the proper measures to produce, accomplish or bring into existence the thing."
In Georgia Public Service Commission v. Georgia Power Co.,
The only case we have had called to our attention or found, holding that "establish" is not used in the sense of "construct," is Village of Brockport v. Green,
Besides the word "establish," we also find the word "procuring" in said amended clause 5, in the following provision already quoted in this opinion: "Nothing herein contained shall be construed to restrict the powers of said city as to taxation, assessment, borrowing money, contracting debts or loaning its credit for procuring supplies of water, municipal water works, municipal power plants, electrical or otherwise, or other public utility." One of the definitions of the word "procuring" in Webster's New International Dictionary is, "to obtain by any means." This word does not occur in the grant of power in said amended section 4, but, like the word "establish," has received our consideration in placing a proper interpretation upon said grant of power.
6. The foregoing authorities leave no substantial doubt in our mind that the legislature, in the said amendments of 1935, intended to and did confer upon the city of Las Vegas the power to construct a municipal power plant, as well as to acquire one in other ways, such as by purchase.
It is our opinion, therefore, that the general demurrer to plaintiff's first cause of action should have been sustained.
Respondent contends that the demurrers to his amended second and third causes of action should have *353 been overruled by the district court; but, according to appellants, the question whether there was error in sustaining said demurrers is one which this court is without power to consider. They take the position that the only matters of which we have jurisdiction are those presented by them on this appeal. They say that the action of the lower court in sustaining the demurrers to, and dismissing, the amended second and third causes of action constituted a final judgment adverse to plaintiff, from which he could have appealed. Furthermore, in line with their contention that only the questions raised by them on this appeal can be considered, they claim that even if the sustaining of said demurrers and dismissal of said two amended causes of action were not appealable, this court is nevertheless without power, on this appeal, to decide whether the district court committed error in taking said action.
7. The rulings of the district court sustaining defendants' amended second and third causes of action, and dismissing the same, were intermediate orders, not a final judgment. Salchert v. Rice,
The order sustaining said demurrers and dismissing said causes of action was not appealable. Statutes of Nevada 1935, c. 90, p. 197, sec. 10; Chartz v. Cardelli,
Furthermore, our statute contemplates appeal by aggrieved persons only. Statutes of Nevada 1935, c. 90, p. 196, sec. 8; Warren v. Wilson,
Section 12 of the 1935 new trials and appeal act, Statutes of Nevada 1935, c. 90, p. 198, reads as follows: "Upon an appeal from a judgment, the court may review the decision, and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment, or which substantially affects the rights of a party, which comes within the *354 specifications of error and record on appeal or is embraced in the bill of exceptions. The provisions of this section do not authorize the court to review any decision or order from which an appeal might have been taken."
It is true that Maher v. Swift,
It may be observed here that orders sustaining demurrers are deemed excepted to (section 8874 N.C.L.); also that the district court's rulings complained of by respondent involved the merits, substantially affected the rights of respondent, come within the record on appeal, are embraced in the bill of exceptions, and are specified as errors in respondent's answering brief.
The second alleged cause of action presents two questions for our consideration: First, does the ordinance enacted by the defendants conform in all respects with their previously published proclamation? Second, would the proposed bond issue be in violation of the provisions of section 6085 N.C.L., to be later quoted herein?
8. Amended clause 5 of section 31 of subc. 2 of the act of incorporation provides, in part, that to acquire or establish a public utility, the board shall issue and publish a proclamation which shall set forth briefly "the proposed bonded indebtedness to be incurred therefor, the terms, amount, rate of interest, and time within *355 which redeemable, and on what fund." At a later meeting the board must enact an ordinance "which shall conform in all respects to the terms and conditions of the previously published proclamation," unless, in the meantime, a petition be presented to the board, signed by a certain percentage of the qualified electors of the city, asking for a special election upon the question whether or not the proposed ordinance shall be passed. If such petition be presented, the ordinance shall not be enacted unless and until such election shall have been called, held, and carried by a majority of the votes cast.
The proclamation in the instant case proposes to issue "interest bearing coupon general obligation bonds" and further sets forth that such bonds "shall be redeemable from a fund to be created for that purpose from the sale of power distributed over such system." No petition for a special election having been presented, the board enacted an ordinance for the issuance of 250 "general obligation bonds." According to the ordinance, the bonds are to be made "a legal and effective general obligation against the City of Las Vegas"; the proceeds from the sale of the bonds are to be placed in a city fund designated as the "City power bond fund"; this fund is to be used for the purpose of "establishing, creating or acquiring by purchase or through construction" a municipally owned power plant. * * *" Section 6 of the ordinance reads: "When such plant shall be acquired as herein provided, the Board of City Commissioners shall charge a price for power distributed over such system sufficient, in addition to the operating costs, to pay the interest upon the said bonds as the same shall become due, and in addition thereto, a sum shall be collected by the Board of City Commissioners from the sale of such power sufficient to redeem and retire the said bonds upon their respective maturity dates." In section 7 of the ordinance it is provided, inter alia, that "in the event that the fund created from the sale of power distributed over such system shall be insufficient to pay the principal upon and redeem the said *356 bonds and to pay the interest thereon as the respective amounts become due, then and in such event, the deficiency shall be paid by the Treasurer of the City of Las Vegas from the general fund of the city, and each of the bonds issued under the authority of this ordinance shall contain a provision to that effect."
Respondent contends that the ordinance does not conform in all respects to the terms and conditions of the proclamation for the reason that the latter makes the bonds redeemable from a fund to be created for that purpose from the sale of power, while the ordinance goes further and provides that if the proceeds from the sale of power be insufficient to pay the principal or interest, the deficiency shall be paid from the general fund of the city.
While entertaining some doubt on this question, the conclusion we have arrived at is that any lack of conformity of the ordinance with the proclamation consists in the choice of different words which, however, have the same meaning. In the case of City of Eugene v. Willamette Valley Co.,
We shall now consider the question whether the proposed bond issue would be invalid under section 6085 N.C.L., which reads as follows: "Hereafter all bonds, including refunding bonds issued under lawful authority by any county, city, town, school district, or municipal corporation, shall be serial in form and maturity and numbered from one upwards consecutively. Interest on all such bonds shall be payable either annually or semiannually, as may be set forth in the act of the officers of the issuing municipal corporation. The various annual maturities shall commence not later than the third year after the date of issue of such bonds; all such bonds shall be redeemed in equal annual installments; provided, however, that the first installment may be for a greater or lesser amount than the remaining installments."
The aforesaid section is section 1 of "An Act relating to bonds issued by counties, cities, towns, school districts, and other municipal corporations, and repealing all acts and parts of acts in conflict therewith," approved *358 March 23, 1927 (Stats. 1927, c. 110, p. 194). We are here concerned with the last portion of the section, which requires that "all such bonds shall be redeemed in equal annual installments; provided, however, that the first installment may be for a greater or lesser amount than the remaining installments." In the case at bar the proposed bonds are to be redeemed in equal installments of $30,000, except the last installment, which is $40,000.
9. In State v. Allen,
It is plain that the proposed bonds would be public utility bonds, but we cannot agree with appellants that they would be payable wholly from the earnings of such utility. The court cannot disregard the word "wholly," and we are convinced that, although the proclamation states that the bonds are to be redeemable from a fund to be created for that purpose from the sale of power distributed over such system, they would not be payable wholly from the earnings of the power plant, because *359
they would be general obligation bonds, and if the proceeds from the sale of power should be insufficient to redeem them the deficiency would have to be paid from the general fund of the city. General obligation bonds create a debt against the city, whereas bonds payable wholly from the earnings of a public utility do not. If the holders of the proposed bonds would have a claim solely on the net revenues of the power plant, they would be payable wholly from its earnings. The following are a few of the authorities where bonds and other liabilities of this type are mentioned: Shields v. Loveland,
The second reason given by appellants in support of their contention that section 6085 N.C.L. is not applicable to the city of Las Vegas, is that the 1935 amendments to its charter set up a new, full, and complete method for acquiring and establishing municipal public utilities in said city, different from the method set forth in said municipal bond act of 1927. It was upon this ground that the district court sustained defendants' demurrer to plaintiff's second cause of action. Respondent takes the position that said municipal bond act of 1927 has not been superseded by the 1935 amendments *360 to the Las Vegas charter. It thus becomes necessary to closely scrutinize these statutes.
Section 1 of the municipal bond act has already been quoted (section 6085 N.C.L.). Section 2 (section 6086 N.C.L.) makes provision for an annual tax levy, sufficient to meet the payments of principal and interest on municipal bonds. Section 3 (section 6087 N.C.L.) provides that before any bonds be offered for sale, the corporate authorities issuing them shall designate the maximum rate of interest such bonds shall bear. This section goes on to state that when a vote of the electors shall have been taken on the question of the issuance of such bonds and the proposition submitted to the electors shall have specified the maximum rate of interest to be borne by said bonds, no increase of such maximum rate of interest shall be made by the corporate authorities. Said section 3 further provides that all such bonds shall be sold at public sale, and that a notice of the sale shall be published in a newspaper for a certain length of time, and a copy mailed to the state board of finance. The notice must specify the maximum rate of interest such bonds shall bear, and further sets forth what the bids must specify. The bonds are to be sold to the highest bidder and no bound is to be sold at less than par and accrued interest, nor is any discount or commission to be allowed or paid on the sale of such bonds. Section 5 of said act, as amended (Statutes of Nevada 1933, c. 50, pp. 45, 46 [N.C.L. sec. 6089]), provides that bonds issued under the act shall not run for a longer period than twenty years from the date of issue, and shall, as near as practicable, be issued for a period which shall be equivalent to the life of the improvement to be acquired by the use of the bonds. Section 6, as we have already seen, states that the act shall not apply to public utility bonds payable wholly from the earnings of such utility. There are other provisions in the act, but the foregoing are deemed sufficient for the purposes of this discussion. *361
The first four sentences of amended clause 5 of section 31 of subc. 2 of the city charter (incorporating act of 1911), from which some quotations have already been made in connection with other questions involved on this appeal, read as follows: "To borrow money on the credit of the city for corporation purposes and to issue warrants and bonds therefor in such amounts and forms and on such conditions as the board of commissioners shall determine; and the board may secure the payment of any bonds of the city by making them a preferred lien against the real or other property of the city; provided, that said city shall not issue nor have outstanding at any time bonds to an amount in excess of 20 percent of the total valuation of the taxable property within its limits, as shown by the last preceding tax list or assessment roll; nor shall said city have issued or outstanding at any time warrants, certificates, scrip or other evidence of indebtedness, excepting the bonded indebtedness, in excess of 2 percent of said assessed valuation; and providedfurther, that nothing herein contained shall be construed to restrict the powers of said city as to taxation, assessment, borrowing money, contracting debts or loaning its credit for procuring supplies of water, municipal water works, municipal power plants, electrical or otherwise, or other public utility. The said board shall provide for the payment of interest on such bonds as the same shall become due, and for a sinking fund for the payment of the principal within twenty years after issuing same. The board shall have the power to acquire or establish municipal water works, municipal power plants, or any public utility, only in the manner herein provided. The board shall issue a proclamation which shall set forth briefly the supply of water, municipal water works, the municipal power plant, or other public utility proposed to be acquired or established, the estimated cost thereof as shown by the report provided by the board and mayor, or an engineer or party theretofore appointed by the board for that *362 purpose, the proposed bonded indebtedness to be incurred therefor, the terms, amount, rate of interest, and time within which redeemable, and on what fund." Said amended clause 5 then provides for the publication of the proclamation, the holding of a special election if petitioned for, and the enactment of an ordinance conforming to the previously published proclamation — the statute providing that such ordinance shall be enacted if no petition be presented for a special election, and further providing that if such petition be presented, no ordinance shall be enacted unless such special election be held and carried by a majority of the votes cast. This clause also gives the board power to call and hold such special election whether petitioned for or not, and contains the further provision that if at such election the question is carried by a majority vote, or even though no petition for a special election be filed, the board may, nevertheless, in its discretion, by resolution, abandon and discontinue all proceedings to acquire or establish the municipal public utility when it is deemed to the best interests of the city not to acquire or establish the same.
Section 8 of the 1935 act (Statutes of Nevada 1935, p. 60), amending the 1911 act incorporating the town of Las Vegas, provides that "all acts or parts of acts in conflict herewith are hereby repealed." Said amendatory act of 1935 makes no express reference to the municipal bonds act of 1927.
10. Respondent does not challenge the constitutionality of those portions of the 1935 amendatory act relied upon by appellants, further than to call our attention to section 8 of article 8 of the state constitution (section 138 N.C. L), which provides in part that: "The legislature shall provide for the organization of cities and towns by general laws and shall restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, except for procuring supplies of water." It is our opinion that this constitutional provision does not invalidate said amended clause *363
5, or any part of it. Kornegay v. City of Goldsboro,
11, 12. In our endeavor to ascertain whether said amended clause 5 entirely supersedes, so far as the proposed bond issue is concerned, the municipal bonds act of 1927, and if not, whether said clause 5 supersedes that portion of section 1 of said act of 1927 which requires redemption of municipal bonds in equal annual installments except as to the first installment, we must bear in mind that our chief concern is to learn the intent of the legislature. Thorpe v. Schooling,
13. An amendment of an existing charter supersedes, within the corporate limits and as to matters of purely municipal concern, such, and only such, provisions of a general law as are inconsistent with the provisions of the new amendment. Presson v. Presson,
Clause 5 does not expressly supersede the act of 1927, or any portion thereof. The question is, therefore, whether it impliedly supersedes said act, or any part of it. The question is not one relating to "repeal," as that word is ordinarily used, but we think the rules governing repeal by implication are applicable. *364
14. Repeals by implication are not favored, and the intent of the legislature to have a local law control a general one must be clearly evinced by appropriate language. Thorpe v. Schooling, supra; Estate of David Walley,
15. Where two statutes are flatly repugnant, the later, as a general rule, supplants or repeals the earlier. Thorpe v. Schooling, supra,
16. A general law will not be held to be repealed or modified by implication by a subsequent special law, unless the subsequent special act is so clearly in conflict with the existing general law that both cannot stand. Thorpe v. Schooling, supra,
17. Where express terms of repeal are not used, the presumption is always against an intention to repeal an earlier statute, unless there is such inconsistency or repugnancy between the statutes as to preclude the presumption, or the later statute revises the whole subject-matter of the former. State v. Donnelly,
18. Where a statute or city charter provides a new, full, and complete scheme for the acquisition of municipal improvements, a prior general public improvements act is superseded, being inconsistent. Thorpe v. Schooling, supra,
19. Where one statute deals with a subject in general and comprehensive terms, and another deals with another part of the same subject in a more minute and definite way, the special statute, to the extent of any necessary repugnancy, will prevail over the general one. Norton-Johnson Buick Co. v. Lindley,
20. The provisions of general and special acts must be harmonized when reasonably possible. State v. Rogers,
In the light of the foregoing rules, can we say it is clear that the statutes in question in this case conflict to such an extent, or in other words are so inconsistent and irreconcilable, that they cannot be harmonized so as to give effect to both? If appellants' contention that the 1927 act is wholly superseded by clause 5 is correct, that ends the matter. But after all, the only part of the act of 1927 with which we are specifically concerned here is that which requires municipal bonds to be redeemed in equal installments — except the first which may be greater or less than the others.
22. We have reached the conclusion that the requirement last mentioned is not applicable to the proposed bond issue, and we base that conclusion chiefly on the *367
language occurring in the first three and a fraction lines of said amended clause 5. By this language the legislature of 1935 expressly conferred upon the board of commissioners of the city of Las Vegas the power to borrow money on the credit of the city and to issue bonds therefor "in such amounts and forms and on such conditions as the board of commissioners shall determine." We have not been cited to any case construing the quoted words. There may be many such statutes in the various states, but the only one discovered in our research is mentioned in People vs. Chicago N.W. Ry. Co.,
If there is doubt whether the provision requiring bonds to be redeemable in equal installments (except the first) is a matter of "amounts" or "forms," it seems clear that such a requirement is a "condition." In Dillon's Municipal Corporations (5th ed.), vol. 2, sec. 889, the author says: "The legislature in granting to a municipality power to issue its bonds may impose suchconditions as it may choose. * * *" He cites statutes limiting the term within which bonds shall be payable; authorizing an issue of bonds "not to extend beyond ten years from the date of issuance"; "payable in not less than five nor more than thirty years from date"; and providing that bonds may be issued making part of them mature annually and running through a series of not more than twenty years from the dates of their issuance. While still dealing with the subject of conditions, the author cites City and County of Denver v. Hallett,
The requirement of the general statute that municipal bonds "shall be redeemed in equal annual installments; provided,however, that the first installment may be for a greater or lesser amount than the remaining installments" (section 6085 N.C.L.), and the grant of power *368 in the special statute "To borrow money on the credit of the city for corporation purposes and to issue * * * bonds therefor in such amounts and forms and on such conditions as the board of commissioners shall determine" (amended clause 5 of section 31, subc. 2 of the act incorporating the town of Las Vegas, Stats. of Nevada 1935, c. 36, p. 43), are so conflicting, inconsistent, and irreconcilable that in our opinion they cannot be harmonized, and cannot both stand. Such being the case, the special statute, being later, must prevail.
As bearing on the all-important question of the legislative intent in amending said clause 5, we call attention to the fact that the first part of the original clause 5, in the incorporating act of 1911, reads as follows: "To borrow money on the credit of the city for corporate purposes in the manner andto the extent allowed by the statutes and the laws, and to issue * * * bonds therefor in such amounts and forms and on such conditions as the board of commissioners shall determine." Obviously the omission of the italicized words in the 1923, 1925, 1927, 1931, and 1935 amendments (Stats. of Nevada 1923, c. 68, p. 83; 1925, c. 56, p. 78; 1927, c. 154, p. 236; 1931, c. 215, p. 378; 1935, c. 36, p. 43) was ex industria, and indicates an intention on the part of the legislature to allow the city board of Las Vegas to borrow money for corporate purposes in such manner and to such extent as the board shall determine, subject of course to constitutional provisions and those of the amended Las Vegas incorporating act itself, and regardless of other conflicting legislation, except such as would clearly show an intent to supersede said amended clause 5.
We hold that the district court did not err in sustaining defendants' demurrer to plaintiff's second cause of action.
23. Defendants' demurrer to plaintiff's third cause of action raises the question whether, as a condition precedent to the issuance of the proposed bonds in the *369
instant case, a proposal for such bond issue should have been submitted, at an election, to electors who were not real property owners or the spouses of real property owners, and also to electors who were the owners of real property or the spouses of real property owners, as required by the bond election act of March 20, 1933 (Stats. Nevada 1933, c. 95, p. 116). The provisions of this act were set out, in substance, in the case of State ex rel. Cooper v. Reese,
We think the action of the district court in sustaining defendants' demurrer to plaintiff's third cause of action was correct.
24. While it is not necessary to decide whether appellants' contention that plaintiff has no legal capacity to maintain this suit is well taken, we may state that in our opinion it is without merit. *370 25. This case would have been disposed of at an earlier date had appellants, when the case was first submitted, briefed and argued the issues of law arising out of the demurrers to plaintiff's second and third causes of action, particularly the second. Besides arguing the contention that this court is without power to consider said two causes of action, appellants, without risk of any waiver, could and should have briefed and argued the above-mentioned questions in the first instance.
The judgment appealed from is reversed, and the orders appealed from set aside. Appellants and respondent will pay their and his own costs, respectively.
Addendum
