I am unable to concur in the opinion and conclusion reached in the opinion prepared by Mr. Justice SEBRING.
It is my view that in the operation of its waterworks system the City acts in its proprietary or corporate capacity and not in its sovereign governmental capacity; that in the performance of such activity the City is bound by the same laws and burdened with the same duties toward its employes in that activity as may be applicable to any persons or private corporation when engaged in like activity. See Loeb v. City of Jacksonville,
I see nothing in the provision of the City Charter applicable here which is in conflict with the provisions of Chapter 21968 General Acts of 1943. There is no reason why the municipal authorities may not bargain with the employees collectively through their duly elected representative just as effectually as they could bargain with each employee separately.
There is no attempt to direct what sort of a contract shall be made or what its terms shall be.
A matter involving the legal principles under consideration here was before the Supreme Court of Maryland in the case of Mugford et al. v. Mayor and City Council of Baltimore et al., ___ Md. ___, 44 Atl. (2) 745. There the court dealt with these questions at considerable length and reached the conclusion that collective bargaining between a union and a municipality functioning in its proprietary capacity is lawful *Page 454 when the contract resulting from such bargaining is within lawful limits.
It is my view that the allegations presented by the second amended bill of complaint were sufficient to warrant application for declaratory judgment under our holdings in Sample v. Ward,
Therefore, the order dismissing the bill should be reversed.
