Snake River Homebuilders Ass'n v. City of Caldwell

607 P.2d 1321, 101 Idaho 47, 1980 Ida. LEXIS 422
CourtIdaho Supreme Court
DecidedMarch 20, 1980
DocketNo. 13009
StatusPublished
Cited by2 cases

This text of 607 P.2d 1321 (Snake River Homebuilders Ass'n v. City of Caldwell) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Snake River Homebuilders Ass'n v. City of Caldwell, 607 P.2d 1321, 101 Idaho 47, 1980 Ida. LEXIS 422 (Idaho 1980).

Opinion

DONALDSON, Chief Justice.

Respondent City of Caldwell passed a resolution which revised its “Accounting Policy and Procedures Manual” with regard to its “water main extension policy” and included in that revision an increase in the cost of water pipe extensions for residential subdivisions from $2.00 per foot to $5.00 per foot. This action was taken without providing notice to the public or public hearing.

Appellant Snake River Homebuilders Association (hereinafter Homebuilders) initiated this action by filing a complaint against respondent City seeking a writ of prohibi[48]*48tion against exacting the $5.00 per foot extension charge and for a declaratory judgment that the action of respondent in adopting the policy setting forth the increase was unconstitutional.

Both parties moved for summary judgment. The trial court granted summary judgment in favor of respondent City and Homebuilders appeals. We affirm.

Appellant Homebuilders does not question the city’s authority to raise the rate charged for extensions, nor the reasonableness of the increase, but rather attacks the procedure by which the act was accomplished. Appellant’s first contention is that Id.Const. art. 12, § 2 mandates that municipal action of the type here involved may be validly effected only by the enactment of an ordinance. We disagree. Article 12, § 2 of the Idaho Constitution provides:

“Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.”

The relevant “general law” in this case is I.C. § 50-323 which provides:

“Cities are hereby empowered to: establish, create, develop, maintain and operate domestic water systems; provide for domestic water from wells, streams, watersheds or any other source; provide for storage, treatment and transmission of the same to the inhabitants of the city; and to do all things necessary to protect the source of water from contamination. The term “domestic water systems” and “domestic water” includes by way of example but not by way of limitation, a public water system providing water at any temperature for space heating or cooling, culinary, sanitary, recreational or therapeutic uses.”

There is nothing in either of the above-quoted provisions addressing the procedure by which a municipality may set or increase the rate charged for extending its water mains. The general rule in such cases is that stated in LaMon v. City of Westport, 22 Wash.App. 215, 588 P.2d 1205 (1978):

“Generally, the legislative body of a municipal corporation may act by resolution or by ordinance unless a particular mode of action is required by the constitution, a statute, a city charter or another city ordinance.” 588 P.2d at 1208, 1209.

Appellant does not cite, nor does our research disclose, any statutory or constitutional provision expressly or implicitly requiring that a municipality act by ordinance in the establishment and amendment of rates charged for extending the city’s water system. Nor is it contended the city’s action was in contravention of another ordinance. Accordingly, we hold it was proper for the city to adopt the rate increase by resolution.

Appellant next contends that regardless of whether the city was authorized to act by resolution in this case, its action was nonetheless illegal for having been taken in the absence of public notice and hearing. Appellant cites the following language from Feil v. City of Coeur d’Alene, 23 Idaho 32, 129 P. 643 (1912):

“[T]he moment the city purchases this water system and begins to operate it and sells water to water consumers, and charges rates therefor ... it will be subject to the same rules and regulations under the Constitution and statute for fixing rates as are applicable to individuals and private corporations. . . ” 23 Idaho at 53, 54, 129 P. at 650.

In appellant’s view, Feil mandates compliance by the city with I.C. § 61-307, which requires that a public utility give thirty days’ notice to the public and the Idaho Public Utilities Commission of any proposed rate or charge increase; and I.C. § 61-622, which prohibits the making of any such increase except upon a showing before and a finding by the commission that the increase is justified. However, Feil does not [49]*49support appellant s position because the rate-fixing statutes “applicable to individuals and private corporations," I.C. § 61-101 et seq., which were enacted after the decision in that case, exclude municipally owned utilities from their operation. The term “public utility” is defined as follows:

“61-129. Public Utility. — The term ‘public utility’ when used in this act includes every common carrier, pipeline corporation, gas corporation, electrical corporation, telephone corporation, telegraph corporation, water corporation, and wharfinger, as those terms are defined in this chapter and each thereof is hereby declared to be a public utility and to be subject to the jurisdiction, control and regulation of the commission and to the provisions of this act . .” (emphasis added)

“Corporation” is in turn defined as follows:

“61-104. Corporation. — The term ‘corporation’ when used in this act includes a corporation, a company, an association and a joint stock association, but does not include a municipal corporation, or mutual nonprofit or cooperative gas, electrical, water or telephone corporation or any other public utility organized and operated for service at cost and not for profit, whether inside or outside the limits of incorporated cities, towns or villages.” (emphasis added)

Because respondent is excluded from those utilities provided for in I.C. § 61 — 101 et seq., the holding in Foil does not make the procedures of the Public Utilities Law applicable to this case; accordingly, the fact respondent did not undertake its extension charge increase according to those procedures has no bearing on the validity of the increase.

In a related argument, appellant claims the city’s action, taken in the absence of notice and hearing, has deprived the members of appellant of the pursuit of their occupation in violation of federal and state constitutional due process requirements. We disagree. The action taken by the city here was clearly legislative, as opposed to judicial or quasi-judicial, in nature. As such, the reasoning of Mr. Justice Holmes in Bi-Metallic Investment Co. v. State Board of Equalization of Colo., 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), is applicable:

“Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” 239 U.S. at 445, 36 S.Ct.

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607 P.2d 1321, 101 Idaho 47, 1980 Ida. LEXIS 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snake-river-homebuilders-assn-v-city-of-caldwell-idaho-1980.