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Show FOUR PAGE THURSDAY, JANUARY 25. 1973 THE DAILY RECORD 11 I ! . Office of the Attorney General OPINION NO. At the time a new municipality was formed in the watershed area there already existed a valid ordinance which had the 73-0- 02 legal effect of a statute, covering the area of the watershed under the statutory stipulations. Such ordinance could not be abrogated by the formation of a new governmental unit nor was the city forced to rely upon this new entity to protect its water January 22, 1973 Ray L. Montgomery, REQUESTED BYj - Salt Lake Assistant City Attorney, supply. QUESTION: Lake City, under its extraterritorial created powers by the State Legislature to protect the watershed area for its water supply, have power to enforce its watershed ordinances When an incorporated city has been created within the city's watershed area? Salt S city like Madison, in the interest of public health, is entitled to set up its own system of milk inspection, if it be a reasonable one. The city is some "A Yes. CONCLUSION: not forced to rely is the present extraterritorial' jurisdiction over the water for the use of its it obtains enactment construed by our courts earliest statute granting a city watershed from Which inhabitants. The was Chaipter 63, Session Laws 1892, which amended section 2264, Civil Laws of Utah 1888. This statute was involved in People v. McCune, 14 Utah 152, 46 P.658 wherein the Court held the community known as "Plateau" was a village and could protect its watershed from pollution within the seven mile limit fixed by the statute. The next case was Salt Lake City, v. Young. 45 Utah 349, 145 P. 1047, in Which Subd.15, Sec. 206, C. L. 1907 was involved which granted the city extraterritorial jurisdiction over the stream or source of water from Which supplied water to its inhabitants "for ten miles above the point from which (the water) is taken; and to enact ordinances and regulations necessary to carry the power herein granted into effect. The case of Bountiful City v. De Luca, 77 Utah 107, 292 P. 194, 72 A.L.R. 657, involved Sec. 570x15, C. L. 1917 as amended by L. 1923 C.ll. This statute gave cities jurisdiction over streams "The ment, which is taken for distance of 6 McQuillin, Sec. 24.57 p. 597 miles above the feet on each side "A torial 56 Am. Jur, p. charter or statute may it is states: In accord with settled principles, police power to protect the water supply, to be exercised beyond its corporate limits, may be conferred upon a municipality, it have referred to the above cases as it was suggested in the letter submitting the question that they could be a starting .point in qur research. However, we do not think these cases have any bearing upon the question submitted except that they hold that the legislature has validly granted to municipalities extraterritorial jurisdiction to protect their water supply. The real question, as we see it, is whether a city may enforce its regulations in protecting its water supply on its watershed where another municipality has been formed within the watershed area. This does not involve the rights of landowners owning and using land adjacent to source. Simply stated, the question is whether by the creation of a municipality in the watershed area, the city loses the right to protect its water We supply by to the new As its 10-2- -6, existing city. Respectfully submitted. along acquired any interest in the water, he may continue to make reasonable use of his land after the municipality acquires a right to the water. The municipality must compensate him to compel a discontinuance of his reasonable use of his land, even though the use thereof and. drainage therefrom may contaminate the water supply to the municipality. the-wate- to -1 jurisdiction, having been granted by the legislature, could not be diminished or abrogated except by the power that granted it, namely, the state legislature. This it has not done. Consequently, the city or town would be created subject to that jurisdiction and the existing city would retain its jurisdiction to enforce its regulations under the power granted it by the legislature to insure proper protection of its water supply. The new city or town would have no interest in the existing city's water sources and hence would have no basis for attempting to impose its regulations to protect the water source for the benefit of the authorize extraterri- a s1:ream and used for pasturing, grazing and corralling livestock and used the water flowing through the premises for irrigation, culinary and domestic purposes before p'ersons below had Vernon B. Romney Attorney General ' Marriage Licenses Lily Dr. (26) to Lanl J. West (30) to Barbara Ann 4953 Memory Lane (20) (27) David James Howe, 1143 Denver Robert Gale Wood, 385 W.4800 So. Murray (20) to Terry Ellen Brown 426 W. 4800 So. S. Murray (17) 1822 E. 13th So. (24) Ronald Jay Nelson, 1129 Sego Smith 899 Emerald Dr. Sandy police regulations and must thereafter look municipality to impose protective regulations. stated in Russell v. Richardson, 24 N.E. 2d 185, 302 111. App.589, "an ordinance passed in pursuance of a power conferred by the Legislature has the fored and effect of a statute." This same view is held in many other cases. Max-fie- ld St. (25) to Susan John David Kramer, 528 Kensington Ave (20) to Peggy Ann Gus taveson 528 Kensington Ave (19) Mack Eugene Suyphen 2801 So Anne Toblnskl Scott Drake Candland, 268 No. State (25) to Jane Frances Blake 702 No. Maine Tooele(23) Leslie Dean Hoggan, 146 McClelland St. (25) to Karen Kay In man 3605 Bannock St. (24) 9th E;(19) to Diane L. Duncan 1459 Lincoln St. (18) Wayne Henry Ethlngton,1705 Down ington Ave (27) to Laurel Kar-le- en Adams 1705 Downlngton Dennis Lee Johnson 1121 Remington Way (23) to Heather Dawn Reynolds 1121 Remington Way (19) (20) r own govern- and towns. stated: citing the Young and Bountiful cases. In his concurring opinion in the Young case Justice McCurty states that if a homesteader has occupied the land if exercised inclusive, provide for the incorThese sections provide for the poration of cities a of filing petition, signed by a required number of electors, with the county commissioners, the holding of an election as to cities, and approval by the county commissioners as to towns. Upon its organization the city or town then has the powers conferred, by the statutes generally. There is no provision affecting the jurisdiction of an already existing city over the watershed. That 10-2- municipal regulation of the public water supply. 956, Sec. 50 in the public concern over not necessary to protect the local health interests since the inspections available by Chicago and the U.S. would furnish adequate. protection. Three justices dissented on the ground that the ordinance did not prohibit wholesome milk from Illinois, only that it be pasteurized within the five mile limit and that the ordinance should not be invalidated merely because the Court believes alternative milk inspection methods might insure the cleanliness and healthfulness of the Dean Illinois milk. In teach of these cases the defendants were charged with herding their livestock so as to permit them to drink from or pollute the water source. In each of the cases the statute' and the city or town ordinances making it a crime to pollute the water source within the extraterritorial area were upheld at least insofar as the ordinance did not have the effect of depriving the owner of the land through which the stream flowed of his property rights in such land without due process. In Madison The case was appealed to the U.S. Supreme Court, 340 U.S. 349, 95 L. Ed. 329, which reversed the decision, not on the principles above quoted, but on the ground that the ordinance interfered with interstate commerce and the regulations were 10-8-- 15, . city of exists." 15 300 gov- reasonably need give way only to a constitutional enactment by the legislature of Wisconsin or the Congress of the United States, if such for point of intake of the stream or water source to protect the same from contacontains mination and pollution. The present statute, 67 same Utah v. Town 214, of (phir the Ault, provisions. In 247 P. 290, involved Sec. 786x2 and 786x13, C.L, 1917, relatextended to the ing jurisdiction of towns over water sources to 10 miles above the point from which water is taken. a other health has an autonomy, a measure of local self it and inspection by higher." it and sources from which water upon ernmental unit nor to submit to reciprocity inspections' unless some higher authority properly decrees it. One municipality does not have to sacrifice its standards to those of another community which may be lower nor is one governmental unit necessarily compelled to yield its independence to another even though the latter's gauges of inspection purport to be equal or slightly Utah Code Ann. (1953), 10-8-- 15, In Wis. 308, the Vernon B. Romney, Attorney General HDmer Holmgren, Assistant Attorney General Does Dean Milk v. City of Madison. 43 N.W.2d 480,257 an ordinance providing that no milk enacted city as sold be shall pasteurized milk in the city unless it has been pasteurized and bottled within a radius of five miles from the Capitol Square. The court held this ordinance valid although milk pasteurized and bottled beyond the five mile limit was inspected by the Chicago Health Department and was subject to spot checks by inspectors of the U.S. Public Health Service. The Court says: City, Utah PREPARED BY: j State of Utah David Kenneth Ellett, 6287 So. 2005 W. Bennion (23) to Mildred Turpin 8890 W. 3100 So. Magna (17) Robert Stephen Tetelck, 1345 E. 8640 So. Sandy (23) So. (31) Craig Anaderson, 4466 W.5500 So. Kearns (23) to Betty Mecham, Michael Aralo, 3558 So. 2870 : to Karen Ann Davies, 1931 E.5150 608 E. Poll St. Sandy (20) 1 |
