Show THE FORT CANNOT BE SOLD City Attorney llerritB t Report to the City Council When the first proposition made by Mr Bacon to lease the Old Fort sqare for a railroad depot the Question was referred to the city attorney That gentleman sent in a written opinion on the subject which is now given to the public for the first time It Is as follows and makes mighty interesting reading at the present juncture SALT LAKE CITY October 131890 Hon M K Parsons Chapman Committee Pub lie Grounds Dear SirYour note of the 10th inst requesting re-questing Q written opinion as to the power of the city council to donate or lease the Sixth ward or Pioneer square to a railroad corportion was received by mo the same day and I herewith reply The property iu question known as the Sixth ward or Pioneer square which comprises com-prises all of block 4 plat A Salt Lake City surve is is lands survey a part tne patented by the general government to Daniel H Wells as mayor of Salt Lake city in trust lor the use of the inhabitants of said city to be distributed as provided by the acts of 1 the legislative assembly of the territory Under the provisions of the acts of the territorial legislature an adjudication was made by the probate judge of Salt Lake county in favor of Brigham Young rand r-and by virtue of such adjud citton Mayor Wells executed a deed to Brigham Young I sr conveying t him all of said block 4b Afterwards by several mesne conveyances the titie of aid blOt kwas vested in B Morris Mor-ris Ypung one of the legatees of said Brigham Young On the 14th day of March ISm said B Morris Young ia considunuiou of the sum 5OOJ paid to uim by Salt Lake city conveyed I con-veyed Gain bloc 45 to said Sail Lako city A petition has been llfSCn led t J tine council by James H Bacon aaking the city authorities to lease said block to him for the period of ninetylime yours at tho nominal rent of 1 and to rant a right of way through the city irom east to vet and along 0 street running north and south to I said l clock 43 and that a guarantee will be given that a railway shall be constructed Irons the city westerly to a place called I Deep Creek witum eIghteen months if said right ot way and usu shall be granted by the city said uloclc IS to be used us I depot for the railroad proposed to be constructed con-structed Mr iSsicoii does not propose to bund tim railio himself and presumably it is to bo built by l corporation orgunized for that purpose Several questions arise lHns block 43 been dedicated for public purposes us ni public square or park t From examination i have been unable j to find any formal older or declaration by i the loruier or present city council dedicating j dedicat-ing said block to public uses But as evidencing evi-dencing the undetsta cting of the city authorities II au-thorities that said olocn was a public square dedicated to the use of the public I find in the record tine following fuotc A That on the 25th of March lb9 by resolution of tho council the property recently re-cently purchased of U Morns Young known as tho Old Fort Block was named and thereafter t be known as Pioneer Square BOn the 20th of March ISbO the committee com-mittee oil puoiiu grounds reported that pursuant pur-suant to the uutligylzauoii > if tho council that they Hud iuUvitioed nor plans tur the improvement of public parks hnd squares ottering the tallowiug oferm Ilnwing premiums t the successful bidder For tho plan of Liberty prrtr i10U for the plan of Washington squaro 20 for the plan of the Tenon Vift UiJhare i0 for the plan of Pioauor square 10 tfio report was presumably adopted J IOn Apiil P3 lt63 150 was appro pnatedlo pay UiOjikcitniuuis offered for the best plans for lue improvement of public parks to the lollgwing successful conipeti tors Don Cui pptYouiiy for the plan of oUJg Liberty park lCd Will S Hedges for top to-p an of Vushitigtoif park 5 CharleS Wilkes for the plan of Tenth Ward square 20 Wijliam ft Jones for the plan of Pioneer square 1 It will oe seen from the foregoing that tho city council designated after the purchase pur-chase of lock 43 that property as Pioneer square that premiums were offered for j I plans for improvement of public parks j and squares aud that Pionocr square was I named as one of s loh public parKs or squares ana that laareafter money was appropriated and paid for such plans to the successful competitors tlorafor Such plans aro on file in the city engi nears office It is true tbat Pioneer square was leased to ono Reading but i Pioneer squt re Was a public square this lease was ultra vires the corporation yet in that same lease Reading undertook to plant trees otl forth adornment and beautify ing of said square lf wouW appear from the foregoing that the council intended to dedicate Pioneer square to the public use a format dedica tiod is not required bu it may be inferred from acts and declarations here we have the naming of the square the mention of it as a public park O square and plans for its improvement these are facts strongly in favor of dedication and where the animus dedicandi is estaolisneci no use for any definite period by toe public is necessary nec-essary Sec ti33 2 Dillon Mun corporations t corpora-tions I then there has been a dedication of this property as a public park or square it is notin the power of the city to sell or lease it or give it away A municipal corporation cor-poration cannot except under valid legislative legisla-tive authority dispose of the public squares streets or commons 2 Dillon Mun Corp section 5i5 102 U S 472 16 Barber N Y 167 124 U S 039 A lease is asked for in this case but a lease is a conveyance or grant and is an alienation of property for a term and during dur-ing said term is as absolute as a deed 2Another question arises as to whether the city has the right admitting that block 48 or Pioneersquare is not a public square and has not been dedicated to the public use to lease said square for a nominal rent to a railroad corporation virtually vir-tually giving it to aid said tualy away corporation corpora-tion in the project of constructing a rail road roadBy act of Congress passed July 30 1586 it is provided That no territory of the United States now or hereafter to be organized or-ganized or any political or municipal corporation cor-poration or subdivision of any such territory terri-tory shall hereafter make any subscription to the capital stock of any incorporation Ot company or association having corporate powers or in any manner loan its credit tQ 01 use it for the benefit of any such com pany or association or borrow any money for the use of such company or association The evident intention of Congress in passing this act was to correct a growing evil in the territories viz To prevent territories and cities therein from aiding railroad corporations by unwise aud lavish grants of money or credit in many cases almost bankrupting territories and counties and cities therein While I do not contend that the proposed lease comes within the letter of the prohibitory act of Congress cited at least a strong argument can be made to show that it comes within the spirit and intent of said act It will be observed that the act of Congress Con-gress prohibits territories counties and cities from in any manner loaning its credi etc to any corporation or association associa-tion I would be a strange anomaly that the city could not take a share of stock or subscribe one dollar to aid any such corporation cor-poration or association and yet i could virtually donate property worth over 100 000 to aid in the construction of a railroad by a corporation I that be the construction construc-tion of the act of Congress then the mischief mis-chief intended to be prevented is not prevented pre-vented at all for by a very simple device f c by giving away all of its property not dedicated to the public use the city could publc cty almost bankrupt itself In construing statutes they should be so construed as to meet the mischief intended to be prevented SBut if we admit for the sake of argu ment that block 48 or Pioneer square has not been dedicated to the public use either formally or by fair implication and that the proposed lease is not within the letter or spirit of the said act of Congress yet I am fully convinced that the city has no power to virtually give away said square In my judgment it would be ultra circa The city holds this property in trust for the inhabitants thereof and can only dispose of it either by virtue of a power expressly conferred by the legislature or necessarily or fairly incident to the express powers which would include such as are essential to the declared objects of the corporation cor-poration a The power granted by the legislature is to appropriate money for corporate purposes pur-poses only and provide for payment of debts and expenses of the corporation and to purchase receive hold sell lease and convey and dispose of tho property real and personal for the benefit of the city both within aud witbQut its corporate boundaries to improve and protect such property and to do ail other things in relation rela-tion thereto as natural persons It is conceded that powers conferred upon municipal corporations in rwspect to corporate tunas and corporate property are public trusts and the property owned by tho corporations is held by them in trust for the purpose specified or autioriztd in their acts of incorporation Toe grant of power to Salt Lake city corporation by the legislature in respect to I property is to purchase receive hold null lease convey and dispose of etc for the benefit of the city II I take it that to dispose of the property I etc for the benefit of the city ia to dispose i of IL at tho best nossible once and t annlv the money so derived ouly to corporate purposes pur-poses I surely cannot be said that subsidizing subsi-dizing a proposed railroad by conveying to i properly owned by the city without compensation com-pensation is a corporate purpose Norcan it be said that givjng 1 valuable piece of I real estate to a private railroad corporation is for tho beneSt of the city in the sense in which theso words are used in the charier True the construction of the proposed railroad may benefit some 01 all of tbe inhabitants of tine city so it may with equal truth be said that the erection of any valuable improvement improve-ment benefits the inhabitants of the city The erection of a factory of any kind or of a smelter or of a stockyard or a fine hotel In the city may bo a benefit but it would hardly bo contended that it was witnin the power of the city to aid suchen terpises by u donation of a part of the real property of the city Thp city might own It square of ground iu the city which had no improvements thereon and a syndicate might offer to put up a 500000 hotel or i other building thereon Tho erection of i such a building und tho money necessarily i expended in such erection would doubtless btMiutjt the inhabitsint of the city yet it II would scarcely be contended that it would be within the powcn granted to the city I to give awuy the square to such syndicate The same remarks would apply to any private I vote enterprise where a number of persons ate to be employed or large sums of money I to uo expended in the city I any project which benefits the inhabitants of the city it to be subsidized by the dcnution of city I property where is the limit to tine powers of tine city in the disposition of property I held held by it iu trust as all city property i heldI dont think the words for the benefit ol toe city will bear any such construction construc-tion In my judgment the words for the benefit of the city means a benefit t the city in its corporate capacity 1 repeat again that it is a settled rule that municipal corporations may not apply their funds or other property to any other than corporate purposes My attention has been called to the case of Adams vii Memphis La Little Rock Railroad I Rail-road company at al decided by the surenne court of Tennessee and reported in 2 ColweUs reports whore the supreme i rnurt of Tennessee decided that the power to hold real and personal or mixed property and to sell lease or dispose of the same for the use and benefit of the city by necessary I implication comprehends the right to exercise exer-cise such other powers not expressly I granted or forbidden as are necessary to develop the growth or prosperity of the j city In that case the city of Memphis 1 had mortgaged certain of its real property to secure the bonds of a railroad company i There was no special or express legislative authority to the city of Memphis to aid a railroad by mortgaging its property to secure se-cure the bonds of the railroad company Judge Dillon who is accepted as the best authority in the United States on r municipal corporations in commenting on that case says And upon the accepted I canons of construction of municipal powers the author cannot concur with the learned court in the doctrine that the ordinary I clause in the charter giving the municipality municipal-ity the power to sell and dispose of the property empowered it to pledge it as security se-curity for the bonds of the railway company com-pany 2 Dillon Mun Corp section 579 Upon the whole case I am of the opinion that the city council has no power to grant the petition of James H Bacon and make the lease asked by him And further I am of the opinion that any attempt to make said lease by the cltr could be successfully enjoined by the 10 zrta iu an action brought I for that purpose by any taxpayer of the I city S A MERIUTT City Attorney |