People ex rel. Boardman v. City of Butte

4 Mont. 174

• Court: Montana Supreme Court
• Decided: August 15, 1881
• Status: Published

Opinion

Wade, C. J.

The act incorporating the city of Butte provides, article TV, section 2 (Session Laws, 1879), as follows: “All citizens of the United States, and those who have declared their intention to become such, of twenty-one years of age, who shall be tax-paying householders, and who shall have been actual residents of said city three months preceding said election, shall be entitled to vote for city officers and the adoption of this charter.”

The validity of this act of incorporation is called in question principally for the reason that it limits and restricts the right to vote upon the proposition to adopt or to reject the charter to the tax-paying householders who shall have been actual residents of the city for three mouths preceding the election.

1. The organic act vests all legislative power of the territory in the governor and legislative assembly. The qualifications of voters and of officers (after the first election) are such as shall be prescribed by the legislature. The legislative power of the territory extends to all rightful subjects of legislation consistent with the constitution and the organic act of the territory. The power to make laws, limited only by the boundaries of the constitution and the organic act, resides with the legislature, and there it must remain. But it is no violation of the principle that the legislature may confer upon municipal organization certain powers of legislation concerning local regulation, for such municipal governments are mere auxiliaries to the state government in the business of municipal rule.

It is another well-settled principle that the legislature may create municipal organizations and governments upon its own motion, consulting only its own views as to the propriety or necessity of such action, and without the consent and against the protest of those upon whom such government is to take effect. Cooley’s Const. Lim. M3.

The theory of a government by the people is that they act through their representatives. They delegate their authority to their agents, who speak and act for them in making laws. The act of an agent, within the scope of his authority, binds the principal. Hence, laws enacted by a properly constituted legislature, within the scope of its authority, and not in conflict with the constitution or organic law, bind the people. They give their consent to laws by clothing their agents with power and authority to make them. There is no reserved power in the people to consent to or reject laws properly enacted by their lawfully constituted agents. If they object to the laws for the reason that they are not within the limits of the organic law, they may have that question determined in the proper tribunals; if they object to them because they are oppressive, or do not fulfil their expectations, they may elect new agents to alter or abolish them, and to enact others in their places.

It is within the competency of a territorial legislature to create municipal corporations. Its authority extends to all rightful subjects of legislation. It may provide municipal courts, although by the organic act it is declared that the judicial power of the territory shall be vested in a supreme court, district courts, probate courts and justices of the peace. 1 Dillon on Mun. Corp. sec. 18, citing State v. Young, 3 Kans. 445; Barnes v. Atchison, 2 id. 454; Reddick v. Aurelia, 1 Mo. 5; Vincennes University v. Indiana, 14 How. 268; Vance v. Bank, 1 Blackf. 80; Myers v. Bank, 20 Ohio, 283; Deitz v. City, 1 Cal. 323.

The same author further says: “The rule which applies to private corporations, that the incorporating act is ineffectual to constitute a corporate body until it is assented to or accepted by the corporators, has no application to statutes creating municipal corporations. These are imperative and binding without any consent, unless the act is expressly made conditional. All who live within the limits of the incorporated district are bound by them, and can only withdraw from the corporation by removal. Over such, corporations the legislature, unless restrained by the constitution, has entire control; and, • unless otherwise provided by the act itself, or a different intention is manifested, the public corporation is legally constituted as soon as the incorporating act declaring it • to exist goes into effect. 1 Dillon on Mun. Corp. sec. 23; Medical Institute v. Patterson, 1 Denio, 61; 5 id. 681; Myers v. Irwin, 3 Serg. & R. 368; Angell & Ames, sec. 79, and cases cited; Wells v. Burbank, 17 N. H. 393; Society, etc. v. Town of Paulet, 4 Pet. 480.

Having this authority, it has been doubted whether the legislature had the lawful right to submit the question of the adoption or rejection of a municipal charter to the people for whom it was created; but the weight of authority is, and the practice is now general, to submit to those interested, and who are to take upon themselves the burdens imposed by a municipal government, if the same is established, the question as to the adoption or rejection of the charter. And this is not the delegation of legislative authority to the people. It is merely attaching a condition to the law and providing that it shall take effect upon the happening of a certain event. 1 Dillon’s Mun. Corp. sec. 23.

The legislature having absolute authority to establish a municipal government for a town or city without consulting the people of such town or city, or obtaining their consent, it follows that the legislature may cause the establishing of such municipalgovernment to depend upon the happening of any future contingency or event.

It is objected that this act of incorporation did not become a law by virtue of the will of the legislature, but by virtue of the will of the people to whom the question of its adoption was submitted. This objection is not supported by authority. The legislature may attach such conditions as to the taking effect of laws as it sees proper.

In the case of Slack v. The M. & L. Railroad Co. 13 B. Mon. 23, the court says: “It is not essential to the character and force of a law that the legislative enactment should itself command to be done everything for which it provides. The legislative power to command a particular thing to be done includes the power to authorize it to be done. The act done under authority conferred by the legislature is precisely as legal and valid as if done in obedience to a legislative command. Each is entitled to the same force and efficacy, and each must be followed by all the consequences which, either by the general law or by the particular statute, are annexed to the particular law, because such is done in effectuation of the legislative will, and each, when done according to that will, has all the sanction which the legislative power can give. Each is, therefore, entitled to the aid of the whole power of the government to uphold it, and to 'maintain the rights flowing from it. A peremptory statute is at once mandatory and requires obedience, and thus is at once a perfect law in all respects. A statute giving authority to do or not to do, and presenting the consequences of the act done, has not, until the act is done, any mandatory effect requiring immediate obedience, except so far as it regulates the time and manner of doing the act, and expressly or impliedly commands that the agent shall not be prevented from doing it according to the discretion allowed. Beyond that it has not a mandatory effect till the act is done, and is not, until then, a perfect law as to all the purposes provided for. In other words, it does not take its final effect as a mandatory law until the discretionary act is done, upon which it is to have its final and peremptory operation. So far as such a statute confers authority and discretion, it is as obligatory from the first as the legislative power can make it. And although its ’further practical efficacy may depend upon the discretionary act of some other body or individual, it is not derived from that discretion, but from the will of the legislature which authorized the act and prescribed its consequences.”

In Burr v. Blanding, 14 Cal. 357, the court says: “ Laws may be absolute, dependent upon no contingency, or they may be subject to such conditions as the legislature may impose. They may take effect only upon the happening of events which are in the future and uncertain; and among others, the voluntary act of the parties upon whom they are designed to operate. They are no less complete and perfect, when passed by the legislature, though future and contingent events may determine whether or not they shall take effect.”

In Smith v. The City of Janesville, 26 Wis. 294, the court says: “No one doubts the general power of the legislature to make such regulations and conditions as it pleases with regard to the taking effect or operation of laws. They may be absolute or conditional and contingent; and if the latter, they, may take effect on the happening of any event which is future and uncertain.”

In Mores v. The City of Reading, 21 Pa. St. 202, the court says: “Half the statutes on our books are in the alternative, depending on the discretion of some person or persons, to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of the law.”

In C. W. & Z. R. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 88, the court said: “The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution to be exercised under and in pursuance of law. The first cannot be done; to the latter, no valid objection can be made.”

In Hobert v. Sup'rs, etc. 17 Cal. 31, the supreme court of California says: “ The general principle is unquestionably true, that our system is not a pure democracy, but a representative republican government, one of whose departments— the legislative — has the exclusive faculty of enacting laws. But the legislative department, representing the mass of political powers, is no further controlled as to its powers, or the mode of their exercise, than by the restrictions of the constitution. Such restrictions must be shown, before the action of the legislature, as to fact or mode, can be held invalid. Accordingly, the legislature, having this general power of enacting laws, may enact them in its own form, where not restrained, and may give to them such effect, to be worked out in such a way and by such means as it chooses to prescribe. It may provide that a law shall go into effect at one time or another, absolutely or on condition, upon certain terms or in a certain event, or without regard to future events.”

Says the supreme court of Pennsylvania in Locke’s Appeal, 72 Pa. St. 498, by Agnew, J.: “The true distinction I consider to be this: The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government.

“There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power, and must therefore be a subject of inquiry and determination outside of the halls of legislation. Hence the necessity of municipal divisions of states into counties, townships, cities, wards, boroughs and districts, to which is committed the power of determining many matters necessary or merely useful to local welfare. Can any one distinguish between committing the determining power to the authorities of the district and to the people of the district? If the power to determine the expediency or necessity of granting licenses to sell liquors in a municipal division can be committed to a commission, a council or a court, which no one can dispute, why cannot the people themselves be authorized to determine the same thing ? If a determining power cannot be delegated, then there can be no power delegated to city councils, commissioners and the like, to pass ordinances, by-laws and resolutions in the nature of laws, binding and affecting both the persons and the property of the citizens. If a determining power cannot be conferred by law, there can be no law that is not absolute, unconditional and peremptory; and nothing which is unknown, uncertain and contingent can be the subject of law.”

These cases have been cited to show, first, that it is within the competency of legislative authority to enact laws, the taking effect of which may be conditional or contingent, depending upon some uncertain future event; and second, that it is competent for a legislature to delegate to one man or to a ■ certain designated body or class of men, or to the whole people, the question as to when the contingency or event has or shall take place. And such determination is not in any sense the making of the law. It is declaring when a law already made shall go into effect.

In this case the charter had already been enacted. It was perfect and complete in all its parts. It establishes a local government for the city of Butte, defines its authority and prescribes its powers. It was a law. The people of Butte, and no class or portion of them, had any discretion in the matter. They could not add to or take from the law as enacted. The only question submitted to the tax-paying householders was as to when .the law should take effect. They had no discretion as to what the charter should contain. That had already been determined by the law-making power. “In what does this discretion consist? Certainly not in fixing the terms and conditions upon which the act may be performed, or the obligations thereupon attaching. These are all irrevocably prescribed by the legislature, and, whenever called into operation, conclusively govern at every step taken. The law is therefore perfect, final and decisive in all its parts, and the discretion given only relates to its execution. It may be employed or not employed; if employed, it rules throughout; if not employed, it still remains the law, ready to be applied whenever the preliminary condition is performed.” C. W. & Z. R. R. Co. v. Clinton Co. 1 Ohio St. 88.

The appellants contend that, because this determining power as to when the charter shall take effect and become operative is, by the terms of the act creating it, left to the voice of a majority of the resident tax-paying householders within the limits of the city, and not to the voice of a majority of the legal voters thereof, therefore that the act of incorporation is void.

This proposition does not involve the vital question here. It was not necessary to the validity of the act of incorporation to submit it to the whole or to any portion of the people of the city of Butte for their acceptance or rejection; the provision of the charter requiring its submission to the resident tax-paying householders was conferring the right of suffrage where, before, it did not exist. Instead of being an infringement of and a contraction of the right of the elective franchise, it was an expansion thereof. It was the granting of a privilege where, before, it did not exist. It was a mere act of grace upon the part of the legislature to submit the charter to the people at all, or to any part or portion of them. They could not have complained, or would have had no grounds of complaint, if a municipal government had been established for their city without their consent or the consent of any of them. In that event they would have been deprived of none of their legal rights. How much less have they cause to complain when their privileges have been enlarged and they have been granted rights that they did not before possess. And so the question as to whether the people of the city of Butte have been deprived of their right to vote, which, as appellants eloquently contend, “is one of the highest attributes of a citizen,’’.does not arise in this case. They could not well be deprived of what they never possessed. They did not have and never had the right to vote upon the adoption of the charter. The legislature conferred the right to vote thereon upon the resident tax-paying householders, and confided to them and their discretion when the law should go into effect. This was the future contingency upon which the operation of the law depended. That the legislature had authority to make the operation of the law to depend upon such a contingency, no one can doubt. The legislature might have confided to one man, a court or judge, to a board or to a commission, to determine when the event had transpired that should set in operation the law.

In the case of The State v. Parker, 26 Vt. 357, the court says: “If the operation of the law may fairly be made to depend upon a future contingency, then, in my apprehension, it makes no essential difference what is the nature of the contingency, so it be an equal and fair one, a moral and a legal one, and so far connected with the object and purpose of the statute as not to be a mere idle and arbitrary one.”

Submitting the charter to the resident tax-paying householders of the city was equal and fair; it was not illegal or immoral; nor was it idle or arbitrary or opposed to sound policy. This limitation of the right to vote upon the charter, and for officers created by it, was intended to place the government of the city in the hands of those who had to bear its burdens and provide funds for paying its necessary expenses. The resident taxpaying householders of any town or city always represent a vast majority of the property of such town or city. They must provide the funds for carrying on the municipal government. It may be “ one of the highest attributes of non-paying citizens ” to vote a tax upon those who are the owners of property, and to take possession of the fund thereby created and disburse it; but where the right so to do did not exist under the constitution and laws, and where the legislature, in framing the charter, might have legally deprived all citizens of the municipality of the right to vote upon the adoption of the charter and in the election of officers under it, we do not see that the non-tax-paying, or any other citizens, have any cause to complain that they have been deprived of any of their rights.

Where the right to vote did not previously exist under the constitution and the laws, the legislature, in conferring a privilege upon a locality, has the right to limit the right of voting, or to prescribe any other legal restrictions, as a condition precedent to the privilege. The right to vote upon the adoption of a charter, or at a municipal election, is not an inherent right that belongs to a citizen because he is a citizen. Municipal corporations are creatures of the legislature. Its authority is omnipotent, absolute, within the limits of the constitution and the laws. Within such boundaries it may create a municipal government, define its powers, designate its officers, limit and control their jurisdiction, authority, term of office, duties and forms of proceeding, and when, how and. by whom they shall be elected; or it may impose a charter upon the people and appoint the municipal officers, depriving all the people of the right to vote for such officers. When the people elect their representatives to the legislature they exercise their right of self-government; and they must submit to the laws enacted by their representatives, until such laws, by the proper authority, are declared unconstitutional.

Neither the constitution, the organic act, or the laws, confer upon the people living under a municipal government the right to vote, either upon the question of the adoption of such government or for the election of officers to carry on the same.

The act, therefore, incorporating the city of Butte is not void for the reason that it limits the right to vote upon the adoption of such act and for officers to the resident tax-paying householders of such city. The judgment is affirmed, with costs.

Judgment affirmed.