OCR Text |
Show PAGE SIX MONDAY. JUNK 24, 1974 INTERMOUNTAIN COMMERCIAL RECORD In The Supreme Court Of The State Of Utah We pointed out the practical necessity ox recogn.. y and the discretion essential for the County Commission to fulfill its responsibility of its cuiaeni. of governing the county in the best interest and the general welfare set In order to accomplish that objective it has such powers as. are specifically there-witand coupled forth, and those which are reasonably and necessarily, implied; of latitude judgment and it must necessarily be allowed a reasonable a m of a town. K. W, Gardner, for himself and others similarly situated, Plaintiff and Appellant, i if Vio pit am h, No. 13524 v. dis-cretio- n. 3 Davis County, etc. Defendant and Respondent FILED June 18, 1974 Davis County Medical Association, Amicus Curiae. Allan E. Mecham, Clerk . To be considered in connection with the Commission's discretion, anu is the fact that the having a significant bearing on the problem here involved, shall issue the bonds. Municipal Bond Act does not dictate that the Commission election is successful bond the U. C. A. 1953. provides that if Section election. " That the the Commission "may proceed to issue the bonds voted at with the idea of wording clearly denotes a discretionary power and correlates recoanizinff that a crovernine bodv should have some flexibility in planning for The logical conclusion contingencies and adapting to changes in circumstances. from all of the foregoing is that what the plaintiff claims was a "mandate", upon the Commission by the vote of the electorate actually amounted only to an author-aization to issue bonds and to spend the funds realized therefrom for the purpose . . 1 13, CROCKETT, Justice: Plaintiff K. W. Gardner, as a taxpayer, for himself and others V similarly situated, sued to enjoin the Davis County Commission from declar- ing surplus and selling two parcels of real property which had been purchased sites for public hospitals. From a refusal to grant the injunction, plaintiff indicated. appeals. Pursuant to regular procedure and a resolution adopted by the County Commission, at a bond election held on June 4, 1968, the voters of Davis County by majority vote approved the following proposition: : Shall Davis County. Utah, incur a debt and issue General Obligation Bonds to the amount of $5, 750, 000. 00 to mature serially in not more than 35 years from their date or dates and to bear interest at a rate, or rates, not in excess of 6 percent per annum, for the purpose of paying part of the cost of erecting hospital facilities in and for Davis County, including the acquisition of suitable sites therefor and all necessary furnishings and equipment therefor? s Consistent with what has been said above, when it developed that sufficient federal funds were not available, it was the responsibility of the Commission to make the decision as to what should be done about the project, course. including its abandonment, if it thought that was the wise and necessary Commission's judgment, was Fortunately, there came into being what, in the the a desirable alternative: of having private ventures provide hospital facilir ties. Inasmuch as the purpose for which the lands in question were purchased had failed, it.was the prerogative of the Commission to declare them surplus and dispose of them to the highest bidder as provided by law. comment briefly on what strikes us as a novel contention made by the plaintiff: that inasmuch as the Commission had issued and sold the bonds for the announced purpose of building a public hospital, under the doctrine known as "cy pres," it should be obliged to carry out the plan in some manner. The announced plan was that the money raised by the proposed bond That French term in this context translates to mean "as near to" or "as near as issue would partially pay for the hospital facilities. It was confidently ex2. Sec. U.C. A. 1953. program would provide the pected that federal funds from the Hill-Burt3. Sec. U.C. A. 1953. necessary balance. The Commission had issued and sold the authorized 4. 28 2d Utah 123, 499 P. 2d 270; See also Schulte v. Salt Lake City, 79 Utah 121, bonds and had purchased two sites,1 one in the north end and one in the south 292, 10 P. 2d 625; and Clayton v. Salt Lake City. 15 Utah 2d 57, 59. 387 P. 2d 93i end of the County, when an unanticipated reduction in funds available in the U. C. A. 1953. quoted herein. 5. Ibid. ; and see language of Sec. of 6. out the U. A. the 1953. Sec. C. federal Hill-Burtcarrying program effectively prevented plan for building the hospitals as projected. may be." It is a doctrine that is sometimes invoked where there has been a gift or bequest for a charitable purpose, which for some reason cannot be After this impasse developed, the Commission considered alternative literally carried out, and something closely analogous is done which com- methods of financing, and of obtaining hospital facilities for Davis County. ports With ana tumilS wnat appears to De me oonor s mienuun ana purpose. In 1972 it decided upon a different plan, and contracted with two private corpoWe have not been cited to, nor have we found any authority or precedent for rations for construction of hospital facilities, one in each end of the county. applying that doctrine to the use of public funds in situations such as that now Thereafter the Commission declared surplus the two sites it had purchased, before us; and we can see no reason to do so. 8 and proposed to sell them through regular bidding procedures as provided by law, The money was to be used for the purpose of paying accrued interest Reverting to the main basiB for our decision: as will be seen from and retiring the issued bonds. cited herein, the courts do not interfere with discretionary the authorities ' actions of the Commission except for some impelling cause: such as that Prior to the date set for the sale the plaintiff brought this action to there has been dishonesty, fraud or collusion, or lack of good faith, or that prevent it. After a plenary hearing thereon, the district court found that the its action was so wholly unreasonable or unjust as to be regarded as arbiaction of the County Commission in the declaration of the lands as surplus or capricious. 9 It has not been made to appear that any of such trary and within with was in its accordance '""ana the proposed sale thereof law, circumstances existed here. Therefore we can see no basis upon which prerogatives. to disagree with the trial court's refusal to interfere with the Commission's proceeding to sell the two pieces of property in question in the manner The plaintiff raises 'no question, and there can be no doubt about the authorized by law. All emphasis added. authority of the County Commission to take any reasonable and appropriate U. C. A- 1953. 1. Sec. Affirmed. Costs to defendant (respondent), 2 measures to preserve the health of the inhabitants of the nor that this includes the providing of hospital facilities. 3 The County plaintiffs contention WE CONCUR: goes beyond those propositions: he argues that the announcement of the plan by the County Commission and the holding of the bond election constituted in effect an offer; and that the approval by the voters was in effect an acceptance of that offer, which imposed upon the Commission a binding mandate to eo forE. R. Callister, Jr, , Chief Justice ward and build the public hospitals. We 17-5-4- 9". 17-5-- 62, on 17-4-- 17-5-- on 17-5-4- 1, 48. 8.' The powers and duties of counties and their boards of commissioners are set forth in Title 17. U. C. A. 1953. Section that counties provides are. "bodies corporate and politic, and as such have the powers specified in 17-4- -1 F. Henri Henriod, Justice this title and such other powers as are necessarily implied."; Section gives counties the power "to manage and dispose of its property as the interests of its inhabitants may require."; Section allows the commission to sell surplus property; and Section allows county commissions to contract for a bonded indebtedness and requires that revenues derived from bond "shall be applied to the purpose or purposes specified in the order of the sales board I county commission and no other." 17-4- -3 17-5-- 17-12- 48 A. H. -1 Ellett. Justice R. L. Tuckett. Justice t On a number of occasions this court has spoken concerning the powers 7. See 14 C. J. S. , Charities, Sec. 52, pp. 512, 514. of political subdivisions of this state. A comparatively recent one is Cottonwood 8. See City and County of Denver v. Currigan Colo. 362 P. 2d City Electors v. Salt Lake County, etc.4 Therein the plaintiffs failed to persuade 1060. the court that the County Commission should be compelled to grant incorporation 9. See cases in footnote 4, supra. Steven Leon Villiard, The prosecuting attorney was aware of this evidence but did not tell No. 13506 Plaintiff and Appellant, counsel for Mr. Villiard. However, counsel never requested any information in that regard and in fact made objection to the proof of the matter when v." FILED the victim herself was testifying. The following questions and answers were June 20, 1974 given: . John W. Turner, Warden, Utah State Prison, Q And then after that were you examined by a doctor? Defendant and Respondent. Allan E. Mecham, Clerk A Yes, I was. ELLETT, Justice: Mr. Villiard was duly convicted by a jury of the crime of rape, and his conviction was affirmed by this court on appeal. He then filed an apof now a denial of his habeas for and writ from corpus plication appeals on a writ of habeas corpus. The parapplication for release from prison ticular claim he now makes is that the prosecuting attorney suppressed evidence which was favorable to him and that he never knew of it prior to or at the time of his former appeal. The evidence about which he now complains was a report by the FBI that the tests made were inconclusive and showed neither guilt nor innocence. The complaint is also made that the sheriff's report and the doctor's examination made a number of hours after the crime did not show any tears or bruises in the vaginal area of the victim. Q Who A was that doctor? Doctor Midgley. Q When A On was that? that very same day, that night. Q And was he able to find anything in his examination? A No. Mr. Terry: Just a minute. We will object to that. The Court: I will sustain that objection. (Continual on page i i 7) |