(concurring and dissenting in part):
I concur with that part of the main opinion which affirms the decision of the trial court as to: (1) the Mayor’s lack of authori*1030ty to transfer encumbered funds within a departmental budget, and (2) the Council’s right of access to administrative information. However, I dissent from that portion of the opinion which reverses the trial court and holds that, under the council-mayor form of city government, the Mayor has unrestricted power to buy or sell city property and to approve subdivisions.
The main opinion correctly points out that cities are creatures of the legislature and that they have only those powers expressly granted, or those necessarily implied in order to discharge the responsibilities imposed upon them by law.1 It follows, a fortiori, that that rule also applies to officers of the city, including the Mayor.2 In regard to the powers claimed by the Mayor, as compared to the Council, it is appropriate to keep in mind the just-stated principle and to examine the statutes in harmony with their background and purpose, as the main opinion suggests. But doing so leads me to the opposite conclusion.
The main opinion indicates that early forms of municipal government in Utah did not employ a system of separated and balanced powers, often vesting all governing authority in a single body and designating a mayor as a mere presiding officer or titular head of that body; and suggests that the 1959 Act was intended to permit the adoption of a “Strong Mayor” type of government.3 It is my impression that the controversy which has arisen in this case is due, in large part, to an unwarranted assumption that the council-mayor form of city government adopted by Logan City is in some way related to and takes character from that title of the 1959 Act.4 The fallacy in the Mayor’s position is that the 1975 Act,5 Which repeals the former Act, bears no such title; and that there is no expression whatsoever to be found in the language of the 1975 Act to support the so-called “Strong Mayor” form of city government.
The Mayor’s difficulty is in failing to recognize and give effect to the plainly stated intent of the Act. The statute which gives cities the option of adopting the council-mayor form of government is Sec. 10-3-1209, U.C.A.1953, which provides for:
two separate, independent, and equal branches of municipal government ; the executive branch consisting of a mayor and the administrative departments and officers; and the legislative branch consisting of a municipal council.
The just-quoted language should be understood in the light of the historical development of democratic government in this country. One of the fundamental principles inherent in the patterns of American government, as the quoted language plainly indicates, is that there should be a separation of powers between the branches of government so that they can operate as a check and balance upon each other. Another is that because the legislative branch derives its powers directly from and is responsible to the people, the residuum of any undelegated power is reposed therein;6 and the Mayor cannot hypothesize nor arrogate powers to himself by a contrary assumption. The fair and proper assumption is that the Legislature had the foregoing in mind in creating the council-mayor form and that the voters of Logan so understood.
Consistent with the foregoing, the trial court correctly held that the defendant Mayor’s powers “are restricted to those spe*1031cifically enumerated in the legislation” i. e., See. 10-3-1219 as quoted in the main opinion. From a careful scrutiny of that section it will be seen that the only subsections thereof which could even arguably be considered as conferring upon the Mayor the powers he claims of being able to sell city property and approve subdivisions are subsections (2) and (9) which state that he shall have the power and duty to:
(2) Execute the policies adopted by the council,
and
(9) Perform such other duties as may be prescribed by this act or may be required by ordinance not inconsistent with this act. [All emphasis herein added.]
It is submitted that neither of those sections can by any stretch of language or logic be construed to constitute a grant to the Mayor of any such authority. On the contrary, each plainly indicates that what it authorizes him to do is subject to approval by the Council. In subsection (2), the policies he is to execute are limited to those “adopted by the council.” In subsection (9), the duties he is to perform are those “prescribed by this act or required by ordinance . ” i. e., by action of the Council. It is also to be had in mind that there is a basic rule of statutory construction that when powers are claimed under a statute, such as the Mayor claims here, those powers not expressly stated are deemed to be excluded.7
In complete harmony with the decision of the trial court and the intent of the Act, as discussed in this dissent, are the statements in the main opinion concerning the approval of subdivisions by the “legislative body,”8 by the “legislative authority”9 and by the “governing body, or by some city or town officer . . . designated by resolution or ordinance.”10 Each of those can refer to nothing other than the Council. (No contention is made that the Council has so designated the Mayor.)
Considerations of basic governmental policy and practical operation of the city also harmonize with what is said above concerning the express language and intent of the statute. The far-reaching power to sell any substantial city property (and this apparently would be without limit) is something which it should require cooperative consideration of and action by both the. Council, and the Mayor. It is my judgment that each of those offices should be accorded only those prerogatives expressly granted or those necessarily implied in order to perform the duties with which they are charged.11 Such an interpretation and application of the Act would insure against any wilfull arrogation of powers by either branch;12 and thus maintain the check upon each other essential to the safeguarding of the best interests of the city and the welfare of its inhabitants.
It is my opinion that the trial court was ineluctably correct in his determination that there cannot be found in the statute, either expressly or by fair implication, any authority in the Mayor to sell city property or to issue final approval of city subdivisions without approval of or authorization by the Council.
For the above reasons, I would affirm the decision of the trial court.
. 56 Am.Jur.2d, Municipal Corporations, section 151; Johnson v. Sandy City Corp., 28 Utah 2d 22, 497 P.2d 644 (1972); Ritholz v. City of Salt Lake, 3 Utah 2d 385, 284 P.2d 704 (1955).
. “As is the case of municipal officers generally, the functions and powers of the mayor of a city are derived from, and depend entirely on, constitutional, statutory, or charter provisions and valid ordinances, resolutions, or bylaws, passed in accordance therewith; and he takes nothing beyond the powers expressly conferred or necessarily implied.” 62 C.J.S. Municipal Corporations § 543.
. U.C.A.1953, 10-6-76, et seq.
. Id.
. U.C.A.1953, 10-3-1201, et seq.
. See Wood v. Budge, 13 Utah 2d 359, 374 P.2d 516; Trade Comm. v. Skaggs Drug Centers, Inc., 21 Utah 2d 431, 446 P.2d 958.
. See 56 Am.Jur.2d, Municipal Corporations, section 195; 62 C.J.S. Municipal Corporations § 120.
. U.C.A.1953, 10-9-25.
. U.C.A.1953, 17-21-8.
. U.C.A.1953, 57-5-3.
. That, as a general rule, the powers of a municipal corporation are to be strictly construed, and any ambiguity or reasonable doubt is to be resolved against finding that a grant was made, see 62 C.J.S. Municipal Corporations § 119. I would apply the same rule when any city officer asserts the power to act as the Mayor has here.
. See City Council of Honolulu v. Fasi, Hawaii, 467 P.2d 576 (1970).