Straughan v. City of Coeur D'Alene , 53 Idaho 494 ( 1932 )

While respondents do not raise the point, it has been suggested that the complaint is not sufficient to show that appellants are entitled to injunctive relief because they fail to indicate how they will, or may, be specifically injured by the proposed acquisition by the municipality of the utilities in question.

The complaint in substance as to this phase of the matter alleges that the appellants are taxpayers, residents and citizens, and at present patrons of the respective utilities exclusively serving the inhabitants of Coeur d'Alene; that the obligations will be those of the municipality, and that no sinking fund is provided for, nor has any election for the issuance of the bonds been held, as required by sec. 3 of art. 8 of the Constitution; that the proposed plan will cause citizens and taxpayers great and irreparable injury. The answer denied that there would be irreparable injury, but admitted that appellants are taxpayers, residents and citizens, and affirmatively justified the proposed scheme under chap. 152, Sess. Laws 1931. Copies of the various supporting ordinances were attached as exhibits, which, at the trial of the case, were admitted in evidence.

There was also evidence as to the equipment of the utilities now serving the community, and as to the city's finances, bonded indebtedness, etc., which, to the extent indicated, supported the allegations of the complaint.

If the proposed plan of acquiring these utilities imposes any liability upon the taxpayers and citizens of the municipality, it would seem at least in the absence of the point being raised, that the complaint was sufficient on that score, and there is the possible liability of the municipality for torts in connection with the to be acquired utilities; the possibility of attempted financial support similar to chap. 134, Sess. Laws 1929, as considered in Oregon Short Line R. Co.v. Berg, 52 Idaho 499, 16 P.2d 373. There is also the necessity of the imposition of increased rates, not only to pay the maintenance and operation of the plants, but their purchase price, and such contingencies, if not direct liabilities, are sufficient to justify these appellants in bringing the action, and supported by the following authorities: Doan v. Board ofCommissioners of Logan County, 3 Idaho 38, 26 P. 167; Woodruffv. Welton, 70 Neb. 667, 97 N.W. 1037; Fischer v.Marsh, 113 Neb. 153, 202 N.W. 422; Neumann v. Knox,115 Neb. 679, 214 N.W. 290; Harris v. City of Philadelphia, 299 Pa. 473,149 A. 722. In connection with the last case, it will be noted that the statute referred to granted equity powers sufficiently similar to the general equity powers possessed by courts in this state to be in point. (See, also, Milligan v. Miles City,51 Mont. 374, 153 P. 276, L.R.A. 1916C, 395; 32 C. J. 48; 50 C. J. 694.)

The Feil case fully considered the argument that the situation here is similar to that involved in special and local municipal improvement districts, but since this point is again stressed, it is important to notice this difference: In local special improvement districts, the charge is only against the property, and only the property can be taken. Herein, while the tangible liability, if it may be so expressed, consists only of the property purchased, the statute requires that rates, though reasonable, be made in contemplation of their sufficiency to pay for the property.

Attention is also called to the statutes passed in 1933, chap. 186, p. 351, chap. 187, p. 357, with regard to the acquisition and development of water plants and sewerage systems, which enable the municipality to acquire such systems by pledging the revenues therefrom, though evidently considering them general obligations, thus recognizing the binding force and effect of the Constitution as construed in the Feil and Miller cases, and we are entitled to assume the 1933 legislature considered the original opinion in this case, issued December 21, 1932, the present opinion being on rehearing.

We adhere to Feil v. City of Coeur d'Alene and Miller v. Cityof Buhl, supra.

Judgments reversed, with instructions to grant the injunctions prayed for. Costs to appellants.

Budge, C.J., and Johnson, D.J., concur.

Morgan and Holden, JJ., dissent.