Bidlingmeyer v. City of Deer Lodge , 128 Mont. 292 ( 1954 )

MR. JUSTICE FREEBOURN:

(dissenting).

I. dissent for the following reasons:

The question to be answered by this court is: Does or does not the complaint state facts sufficient to constitute a cause of action f

.In determining whether'or not the complaint states facts sufficient to constitute a cause of action as against the demurrer, every material allegation of fact well pleaded is deemed true. Mills v. Pope, 90 Mont. 569, 4 Pac. (2d) 485; Toomey v. Penwell, 76 Mont. 166, 245 Pac. 943, 45 A. L. R. 993. For the purpose of determining the sufficiency of a complaint, attacked by a general demurrer, “all facts alleged must be deemed true”. French v. Lewis & Clark County, 87 Mont. 448, 288 Pac. 455, 456.

However, respondents by a motion to dismiss plaintiffs’ appeal, contend this court should not pass upon the sufficiency of the complaint herein because it is asserted that no actual controversy now exists between the parties hereto since “every act and thing which plaintiffs sought to enjoin defendants from performing during the pendency of this action has been fully and completely done and performed.”

It being made to appear from the affidavit of the chief state highway engineer that the actual work consisting “of the asphaltic paving of Main Street in the City of Deer Lodge * * * between the south city limits and Conley Avenue and extending 0.743 miles northerly along Main Street to survey station 3927.7, between Cottonwood Avenue and California Avenue * * * was completed July 31, 1953,” before the appeal and motion to dismiss such appeal were argued in this court on March 9, 1954.

Notwithstanding that the actual work of paving Main street as shown by such affidavit, was all done “last fall,” there are issues as shown by the allegations of the complaint which are vital, alive and by no means moot.

It appears from the well pled allegations of the complaint that real properties of the plaintiffs have been wrongfully and illegally levied upon, assessed and taxed, and doubly so, in order to pay for such paving of Main street, and that such taxes are a lien on their property and are not uniform, thereby violating Article XII, sec. 11, of the Montana Constitution which provides: ‘! Taxes shall be levied and collected by general laws and for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” The issue of sueh taxes as raised by the complaint makes such complaint good as against defendants’ demurrer, and after issue joined, should be tried in the lower court for, notwithstanding defendants make it appear that all such taxes so levied have been paid, plaintiffs assert that such taxes have not all been paid and that the taxes paid were paid under protest.

The complaint alleges, among other things: That the defendants, in order to have Main street paved, on May 2, 1949, adopted and approved resolution No. 483, which provides in part as follows:

“2. That it [the defendants] will not pass any ordinances or laws fixing a speed limit on the above mentioned street of under 25 miles per hour.

“3. That it will not allow the erection of signs, semaphores or signals that will give preference to local routes which intersect with said above mentioned street with the exception of necessary traffic lights.

“4. That it will require stopping of traffic at all intersections, streets and alleys before entering the above mentioned street, with the exceptions of those intersecting streets where traffic is regulated by traffic lights and when traffic lights are in operation.

“5. That it will modify its city ordinance to require parallel parking on the above mentioned street.

“6. That it will require that all opening of the pavement be done under direct supervision of the State Highway Department to their complete satisfaction and that no opening of the pavement is to be done without prior authorization from the State Highway Department and upon posting an approved bond in an amount of one thousand dollars ($1,000.00).”

The complaint further alleges: ‘ ‘ That the aforesaid resolution No. 483 * * * is an unauthorized and unlawful attempt by the City Council of the City of Deer Lodge and its mayor, to relinquish, abandon and barter away for a proposed consideration of money and the doing of work, governmental powers, duties, rights, functions and obligations and also municipal functions and obligations and duties, over and upon, in and concerning Main street, one of the public streets and thoroughfares of and within said City of Deer Lodge # # # to two organizations, agencies * * * and concerns, which are not * * * any part or portion of the municipal government of the City of Deer Lodge.

‘ ‘ That such attempt * * * is contrary to the laws of the State of Montana, relating to the powers and duties of the City of Deer Lodge, over, upon and in the streets and public ways of said city, in the control, care and management thereof for the peace, quiet, health, safety and public welfare of the citizens and residents of said City of Deer Lodge, and contrary to the Constitution of the State of Montana * * * and such is a deprivation of the rights of plaintiffs * * *; that people of said City of Deer Lodge live and keep their places of residence on both the east and west sides of said Main Street, and the inhabitants of said City of Deer Lodge and the general public cross said Main Street in going about their usual affairs and business * * *; that the inhabitants * * * exceed in number 3,500 persons. That the plans of the aforementioned conversion of said Main Street to a part of Federal Aid Highway, U. S. No. 10 South, do not provide for, contemplate or plan any bridge, overpass, underpass, safety zone, school zone, hospital zone or otherwise for use of either vehicle or pedestrian to cross said Main Street, except crossing it on grade over a road or highway which the city has attempted to abandon its right and duty to regulate the speed of traffic using the same to less than 25 miles per hour to the great danger of loss and injury of both life and property by inhabitants. # * *

“That * * * resolution 483 * * * would prevent the City Council of the said City of Deer Lodge from slowing or stopping-vehicle traffic along Main Street for the benefit of, safety of, protection of, and right-of-way of the local school children while crossing said highway going to school and returning home, to provide for the protection and safety of aged, or other inhabitants of said City of Deer Lodge, by creating, establishing or marking a safety zone or ‘through street,’ intersecting and crossing-said Main Street; that the entrance of inhabitants of said City of Deer Lodge, and the general public, into parked automobiles could not be safely accomplished from the side which is toward the center of the street, of parked vehicles along said Main Street; that even in case of an emergency affecting the public health, safety or morals, traffic passing on and along said Main Street could not be slowed, stopped or limited to a speed less than twenty-five (25) miles per hour; that in case of emergency for the public health, safety, or morals, nor for any other reason whatsoever without the prior authorization and direct supervision of the Montana Highway Department, and its approving of a bond furnished for $1,000.00 could any opening of the pavement of said Main Street be accomplished, regardless of method, manner, condition or size or degree of said opening or the immediate necessity therefor; that said resolution 483 establishes and is a direct, open, unlawful and illegal encroachment upon the life, liberty and property of the plaintiffs and of the other inhabitants of said City of Deer Lodge, without due process of law, contrary to and in violation of the Constitution of the United States of America, Amendment XIY, section 1, and to the Constitution of the State of Montana, Article III, section 27, and that said resolution fails to give and secure, but relinquishes, abandons, and delegates the equal protection of the law to the plaintiffs and other inhabitants of said City of Deer Lodge, in violation of, and contrary to the Constitution of the United States of America, Amendment XIV, section 1; * * * that the defendants * * * threaten to, and will unless restrained * * * deprive these plaintiffs of their right to the safe and proper use of the public streets and highways of the City of Deer Lodge, as contemplated by the laws of the State of Montana; threaten to, and will continue to fail and refuse to give these the equal protection of the laws of the State of Montana * *

Under R C. M. 1947, city and town councils have the legislative-given power: “To regulate and prohibit traffic * * * upon the streets” sec. 11-911; “To regulate or prohibit the fast driving of * * * vehicles within the city or town” sec. 11-912; “To provide for and regulate street crossings, curbs, and gutters” sec. 11-910; and “To permit the use of the streets and alleys of the city or town for the purpose of laying down gas, water, and other mains, but no excavations must be made for such purpose without the permission of the council or its authorized officer * * *.” Sec.-11-975.

Things done under the powers above enumerated are for the comfort, safety and welfare of the inhabitants of such municipalities, and fall within the police power thereof. A municipality cannot surrender, alienate, delegate, or barter away such police powers or functions.

“In the people of this state is lodged its police power, one of the highest attributes of sovereignty. The exercise of this power is deemed essential to the good order and general welfare of organized society * * *.” Public Service Comm. v. City of Helena, 52 Mont. 527, 159 Pac. 24, 26.

“It is a well recognized function of the police power of municipal corporations to promote the public safety and to preserve the general welfare by regulating all things harmful to the comfort, safety, and welfare of their inhabitants, or that are harmful to the public interests.” 62 C. J. S., Municipal Corporations, see. 132, p. 277. Any attempt to barter or surrender such functions and powers is invalid. 62 C. J. S., Municipal Corporations, sec. 139, p. 282.

“Delegata potestas non est delegari [one agent cannot lawfully nominate or appoint another to perform the subject-matter of his agency — Broom] is a general maxim applicable with peculiar force to any form of sovereign power, and operates to prevent the governing body of a municipal corporation, intrusted by the state with the police power, from delegating its high functions to any other body or officers; it may be discharged or exercised only by those to whom the state commits it.” 62 C. J. S., Municipal Corporations, sec. 154, p. 316.

“The general police power possessed by a municipal corporation is a continuing power, and is one of which a corporation cannot divest itself by contract or otherwise.” 37 Am. Jur., Municipal Corporations, sec. 276, p. 901.

As said by this court in Helena Light & Ry. Co. v. City of Helena, 47 Mont. 18, 130 Pac. 446, 447 : ‘ ‘ The source of the police power of a municipality is the state. The extent of it must be ascertained from the law creating the municipality, and from the laws of the state bearing upon the same subject. The power cannot be surrendered, alienated, or abridged by contract, nor can it be delegated even with the consent of the Legislature. Its exercise is a governmental function. Without it neither the state nor the municipality could protect the public welfare. Northern Pac. Ry. Co. v. [State of] Minnesota, 208 U. S. 583, 28 S. Ct. 341, 52 L. Ed. 630; Dillon on Municipal Corporations, sec. 1269; McQuillin on Municipal Corporations, sec. 890.”

It is clear that the complaint herein stated facts sufficient to constitute a cause of action and was good as against the general demurrer.