OCR Text |
Show THURSDAY, JANUARY 4, 1973 THI DAILY PAGE THREE RECORD In The Supreme Court Of The State Of Utah I. J. Wagner and llene J, Wagner, husband and wife, and Wallace A. Wright, Jr., and Jeralyn T. Wright, husband and wife. Plaintiffs and Appellants, Salt Lake City, a municipal corporation, Defendant and Respondent. No. 12618 FILED December 20, 1972 L. M. Cummings, Clerk tation and communication . . . The modern trend of decision is to expand and liberally construe the term "public use" in considering state and municipal activities sought to be brought within its meaning .... The determination of what constitutes a public purpose is primarily a legislative function, subject to review by the courts when abused, and the legislative body's determination of that matter should not be reversed except in instances where such determination is palpably and manifestly arbitrary and incorrect. In today's society where power and telephone lines must reach into every home; where population is concentrating in metropolitan areas; where equipment must be used and moved; where big machinery and moving vehicles frequently strike power poles; where storms may damage power lines and endanger the public; where lightning may strike power equipment and leave large areas without power; where trees must be far-reachi- CRCFT, District Judge; This case involves an appeal from a summary judgment granted in the District Court whereby that court upheld the constitutionality of The Burying of Overhead Utilities Act enacted into law in 1969 and denied appellants the injunctive relief prayed for in their complaint. We affirm. On February 3, 1971, respondent Salt Lake City, through its Board of Commissioners, established Underground Conversion of Utilities District No. comprising all of Lots 14 to 19, inclusive, of Plat C, North Hills Subdivision, doing so pursuant to said Act and the provisions of the Revised Ordinances of Salt Lake City. The appellants Wagner own property entirely within the said utility district and the appellants Wright own property located entirely outside of that district, but adjacent to it. The appellants thereafter filed a Declaratory Judgment action by which they sought a judgment declaring said act and city ordinance unconstitutional and enjoining respondent from undertaking any further proceedRespondent filed its answer ings in connection with District No. A stipulation of denying the act and ordinance were unconstitutional. both moved for summary and sides was the filed facts by parties agreed of favor in The ruled trial court respondent. judgment. The utility district in question was established for the purpose of removing overhead electric and telephone wires within the district and replacing them with underground facilities to serve each of the six lots within the district. Appellants do not contend that in establishing the utility district the board of commissioners failed to follow the statutes and ordinances, 3 but rather assert that they are unconstitutional for the following stated reasons: (1) They authorize public action and taxation for private purposes. (2) They authorize a lending of public credit for private They constitute an unlawful delegation of municipal functions to private corporations. (3) They violate the debt limit and election provisions of the Constitution of Utah. (5) They unconstitutionally deny due process of law. (4) (6) The method of assessment authorized therein constitutes a denial of due process and the equal protection of the laws. They permit the taking of property without just compensation. The first three contentions may be considered together, for appellants contend that the placing of power and telephone lines underground benefits only the private property owners and the utility companies involved and does rot serve a public purpose. In support they assert that the legislation in question thereby violates the constitutional prohibitions against a legislative delegation of power to a private corporation to levy taxes, to perform municipal functions, 4 or to authorize any city to lend its credit in aid of any private individual or corporate enterprise. 5 We believe the appellants are in error in assuming that no public purpose is served by burying power and telephone lines underground. The legislature in enacting the Act in question finds it to be in the public interest to convert existing overhead electric and communication facilities to underground locations and declares that a public purpose will be served by providing a procedure for accomplishing such conversion by proceedings taken pursuant The public body seeking to create an improvement district to to the act. effect the purpose intended must determine that such "will promote the public convenience, necessity and welfare. "7 In McQuillan on Municipal Corporations it is stated: What is a municipal purpose is not susceptible of precise definition. While the question of what is and what is not a public purpose is initially a legislative responsibility to determine, in its final analysis, it is for the courts to answer. arbitrary and incorrect. " In support of their contention that the legislation in question constitutes an unlawful delegation of municipal functions to private corporations, appellants assert that such unlawful delegation is to be found in the fact that since the utility companies fix the costs and determine feasibility of the installation and then do the work, they thereby perform the municipal function of levying taxes and lending the public credit. But an examination of the statutes shows clearly that such is not the case. The feasibility study and cost estimate follows the filing of a petition for the creation of an improvement district by the property owners involved and the passage of a resolution by the governing body of the 10 After the city. filing of such study or report, the governing body, after consideration of it, must pass a resolution declaring its intent to create the improvement district, 11 following which notice is given of a public hearing in which the estimated costs (among other things) are published and a hearing held thereon. 12 After consideration of argument submitted at the public hearing, the governing body again proposes a resolution for adoption at another public hearing which resolution must declare all costs involved and contain a proposed assessment list. 13 The governing body also appoints three of its members as a board of equalization and review to conduct the required hearing on that resolution. 1 Such board then makes a report to the governing body after the hearing and the latter must then pass upon the adoption of the assessment resolution. 13 The wisdom of determining the feasibility of making the improveThe highly technical ments and their costs at the outset is nature of the utilities involved, the potential danger if not properly installed and the need for expertise from the beginning is readily apparself-evide- purposes. (7) repeatedly trimmed away from power lines; and where children may be endangered by their proximity and availability; we do not find the legislative determination that conversion of such utilities from overhead to underground locations serves a public purpose is "palpably and manifestly 8 It is not to be assumed that a "private purpose" can be made a "public purpose" merely by legislative fiat. But as times change, so may the nature rtf "purposes" change. Furthermore, as McQuillan says: If the primary object is to subserve a public municipal purpose, it is immaterial that, incidentally, private ends may be advanced. Moreover, the public purposes for which cities may incur liabilities are not restricted to those for which precedent can be found, but the test is whether the work is required for the general good of all the inhabitants of the city.? In 56 Am. Jur. 2d, Sec. 230, Municipal Corporations, page 290, it is stated: public purpose or use changes with changing conditions of society, new appliances in the sciences, and otherchanges brought about by an increase in population and by new modes of transpor- - nt. ent. There is legislative recognition that the utility companies have such 1& expertise. the legislature could have provided for a more profound involvement of the governing body between the feasibility study and cost estimate and the final assessment resolution and bond issuance is difficult to imagine. The proceedings required of the governing body in the challenged legislation manifestly demonstrate that in obtaining the feasibility study and cost estimate from the utility companies, the governing body is not delegating its municipal function of levying taxes or lending How its credit. Clearly any taxes assessed are fixed and assessed by the municipality. In State Road Commission v. Utah Power & Light1 7 this court held that legislation authorizing use of public funds to pay the cost of relocating utility facilities in construction of public roads was not unconstitutional as being a lending of public credit in aid of private business. In Allen v. Tooele County1 8 this court said: The County could be deemed to "lend its credit" to the enterprise only if the County might in some eventuality be required to pay the obligation. Under the Act in question the legislature provided that bonds issued to meet the costs of the conversion could be issued in a principal amount not exceeding the unpaid balance of the assessments levied; that those bonds "shall be secured by and payable from the irrevocable pledge and dedication of the funds derived from the levy apd collection of the special assessments in anticipation of the collection of which they are issued;"1? and that upon default the governing body may proceed against the property to collect the whole of the remaining assessment obligation. 20 Appellants contend that under such legislation, there is nothing contained therein that limits the bondholder to the assessment monies as the sole source of payment and conclude therefrom that the general credit of the governing entity may be obligated to pay such bonds. They assert that the legislature should have, as it did in the Municipal Improvement District Act, 21 specifically provided that such bonds were not a general obligation of the municipality and that the municipality should not be held liable except to the extent of the amount of the unpaid assessments. The fact that the legislature may have been more specific in its wording of a statute does not render it unconstitutional. In providing that the bonds "shall be secured by and payable from" the funds derived from the special assessment the legislature gave us a statute that can reasonably be interpreted as being mandarule of constitutional law tory in such direction. It is a to two as alternatives the interpretation of a statute, that where there are one of which would make its constitutionality doubtful and the other would render it constitutional, the latter will prevail. 2 well-establish- ed Thus, in the legislation in question we see no unconstitutional delegation to a private corporation of a municipal function to either levy taxes or to lend the credit of the municipality for a private purpose. A Appellants' contention that the legislation in question unconstitutionally violates the debt limit and election provisions of the Constitution of Utah |