Show 1 DENIES It w WRIT n Of M MANDATE H Private Parties Cannot Lay Side Sidewalk Sidewalk Sidewalk walk After Alter City Has Acquired by Publication RULING OF JUDGE J A HOWELL III In Cac a am nf of I 1 I I 1 I 1 sin t s Ih lit 11 and atmil A t I 1 I a iker ity 1 li I mi al I I I I O Ogden UI ua In the Ih li di I II I court this moraine morning Judge J V howell handed down don a m su all I II I the r of time the d 11 I In the case l of Jj I h L h I nelson arho Fred r d V F 0 Sanborn v vs ity U A F city 11 i HIM sitt d ii ln hut hita tIle live application for lor a II writ if I man mandate date The fhe dedsion If Ii I of MM t rt the tho action cllon was a brought to 10 dr de d the of the t llo tup rt rl tinner In to 10 securing a II to 10 lay Ia a II sidewalk ld w lk doug hl hll after the th tIt It hail had made It its III oral pub J of or Intention to do this work stated Plated the history of ff the time case cale Is III HS sa M follows folio Uli on in Aug tig nJ 7 1 tK W the plaintiffs nave gate II notice that lh they y would on un the tile day clay of the Ihl th month apply lo to th tM the court ourt for a arlt writ tit of mandate to 1 U a against the he defendants The petition for th i writ rit that ihal Joseph L Carlson one of 01 he th was Wit Ih th he owner of Df lain tain real estate on the t hi east fallt side of Wall sih between n Twenty fifth i Roll and streets ts that th the Ue do 11 f K ant Ogden city lIt hud given lt It Its II no nolle not lle t its of intention lo to create a Idel on Wall RII from coin Twenty to lo streets and to lo therein concrete sidewalks with within In III which district was MII s Included the Ih of tt UI the e plaintiff that thel UM date dall of lit nm Om publication of Df the polle of Intention was ai Jul July I and the tbt date dale of 01 lest last lI t publication A up u 4 15 C Cin in On n July Jill 9 leG M the city 1 council as ed fd an ordinance I lilt providing that thata Intention to 10 build when a jIn en a notice of 01 In district is III published hd it shall shah tx deemed that hal I jurisdiction Is I by II the ely 11 to 0 do the tie work vork from rain the Ibl late date of the fleet first publishing of 01 the t hI he notice not o of Intent ton and d until the thO hearing o 0 ot the th protest shall timidly finally d th thi and upon the late of the first publication of any an notice of IC Intention no n shall ahall hal tsue I u thereafter and nd all t permits before roro walks Ik I n that die issued for foi building li I void become I hall expire s pi 11 and om ThIs ordinance hll was a a 5 I by h th the Iu II U 1 16 r I I I I i I I i I I I I 1 I I n dired to lo have ha 1 do this work for lor him for the tIme r wn that h lie wanted to lo prevent his hl property b bInl be being me ing liable to 10 lh the taxes tUI ments and the lible of KrIti by 1 b the city elty t for pay p meat and his hi property from a lien Uen Attached to It for tales a ami MILD The f III then Ihen alleged that they hey Iho hail had no pisin speedY P edy and an adequate run rem runty 1 remedy pill of ot law and andr edy ty In the Ih ordinary ordinal course corfe Iy therefore prayed for the issuance of a ant writ nt of or mandate mandat directed to the de l commanding th m to tu Issue a I to build the I hI sidewalk IMI along the premises of and to 10 furnish them t lines linen In stakes I IH grade rade and ami an In Instruction necessary for the construe on tin thom I of jf 0 the same sameOn tn On in July II SI t 9 arIsen Carlson alaon applied a to tl toA ii iiA A F Jul Parker city I engineer re requesting ue that ht t P a permit b b be issued to Fred T 1 a 1 lIcensed d contractor to 10 build a sidewalk ld walk in front of hU hili property pr r as a aI wf w I provided for In tel II the lie notice nolle of mIen Intention tins tion and on the same earns Mm day ilay dB Sanborn ap alt applied apIe plied an to the tbt city it engineer for a penult l Ie to 10 build the sidewalk In conformity with 1111 the notice of Intention and amid under ih the of If the thE city cl engineer but bt the Ibl city tr engineer refused refu to grant Int MM w h permit It I was 1 finally argued rt In behalf of ot the that thai the complaint it mIld Id not nt Hate elate 1111 facts fact to constitute a ai at mute t nUI of action or to entitle the plain plaintIffs tIffs lo to tl the Ihl relief for which they asked I 1 11 It I was 1 upon up this ground that time r 11 ie I ily Y veiled hied lo to prevent t the ti Iwu Itu I 1 I ame anI of n the Ihl writ Il It 1 was as conceded by b bI counsel Nun hoc tur both bUI parties hartles lorle that Ihal the tIme city I I hid hl the to 10 enact an nit 11 ordinance providing for the granting of o In to owners owner one of ot pro erty and ant their licensed contractors for the nil building of 01 side sWe FI walks and ad silo also that such p may lacy mayI IJ IK It I revoked but bul II it was aF argued by II toun roun tl eel 1 for th the plaintiffs that thai 11 inasmuch a athe athe I the tbt orinal provided that Mich auth per permit mils mIl as are Ir issued shall hll expire W 00 8 da days train from the 11 date dI of issuance h or at lt sudi uth I Ihn tine time hn ai as Il the th city t gained that the li permits cannot be b revoked un no 11 I lii tl the t du uly I r ha hu has acquired jurisdiction I t order the Ih of sidewalks Th The In iii this Ib rae case CF was wan el ran can an th lh C t tv for tr the Ih purpose of oe i her er rr wits atlas au h M a I different moaning meanIng to 10 the Ih word 11 gaining or acquiring l tn hen on tu to the Ih Improvement prom e I I or II to 10 d I di dithe th I the olk of building tItan than that nf of 0 the Ihl statute providing tot for pub pu I Itching Ihrl of II notices of intention erecting craning districts for lor public Improvements and nd providing vidIng for the th levying 1 of special tax taxes la laCa es Ca t therein I I It II sewed Je to lo the court un that thai th I undoubtedly the city I con can rn do 4 so for fo or there Is Ie no conflict between betseen the I and ami the ordinance the objects is of I both Jl being entirely dissimilar Ji r rIt 1 It II was al also It o argued In behalf of UK Ibe tl I plaintiffs that the th requirement that thit I leI pei I mils mit should hould be J revoked 20 U ds ds n pilot 11 to lo the time when n the tIe tb city ri can 11 1 m monet InoN work ork under the not notice let of f In If lion tion was as a an au 11 unreasonable 1101 Ul upon n the tr graining ul at permits ana aill 1 ass al I therefore point Judge H Howell OH ell ivied r that thai the tc r I was wai 1 a that thai Is he II within wilbin ih th the discretion d of oe th lb h I body by ha hII having vine po J poser er to provide for Uk tim granting Fronting of the permit cud and aD thai that iu ua h a I discretion would old rot ordinarily b b be to I teetered with I by b the th courts alikes uk Owe Mt I Iwas I wits was RI a clear r ab bu of It I I i iI The decision of Ih the M covet court rt wa sac t as I follow folo II To mak mk it and i t there shall be b no In th tl i idl dl districts trl tr In are arr to be he r tv Mr and ano to 10 obviate the Ih Ite n arising H it HIs itIs Is II fly pf er for fw the city to 10 pets p Ide not n only that Ihal no n prIvate patr contra contrat contrato I tor tO to snail shall be 1 engaged elp e In the ini urk of or betiding Ill when ln the th et cut con contractor t I trades tractor hIs hid work Mk but It that no private contractors I be le nc g d dIn In s itOch ch work ok for fo a I 1 U Ie e prior thereto and ami 4 certainly fall N ls days cannot b be said raM 1 to 10 be b an NW time lime C tm Moreover It I cannot be I MM 1 Mt the tl of or the of abutting luit 18 tte owners owner JOI are arl unduly upon apa by such urh a r tie for t the tl nolI period r of 01 tin tl into that a 1 p f way may rr j jr i r f nan nn n property within the be t city oft I bo be 1 hat has a aright I aright I right to hate hut a I sidewalk In frt front ef of his bis I ln by br any aa lk n l i ii i 4 tor whom wheat h he M to 1 and a nd It I is nh when H t It elt dt ep makes makl mare up Us Its 11 mind to te proceed Jer with the UI work Itself 1111 when h U It I takes take th tM lies Initial Intal step f to create rAt a sidewalk lk that lus tit m is deprived of uh emb u h tight This pro of the tbt j I I as its 8 I r oration Of 01 upon t i tin ilis 11 of 01 the oil tI f of cit u I I 11 Ill 1 1 a 1 sidewalk Id all dl 11 Met iet t I us lug i ab Is h wild valid aid rl I 1 IIi t t I 1 rn lI the th fir Ir Pu bI I i uin I n hI ti nut UP ice of II I at which I wan u 1101 is on OIl 1 ul iii U 11 1906 I tIme 11 plaintiff tle itIC n Slit lIt i in ir haT lu thu permit In lit I sued I them anI aul UK Ih tIr 11 the Ihl H HAS t A as in III j refusing tu I wi I It II uh it I ii I on I Jill i 31 31 and All fa ra IN I it having hii lug i I st Pet 1 out In II Ii lii li pi p t II 1111 of the tho Ih jl l t Rut nut 1 lunati i ull lilting fa ft t u tu to tin Ih plaintiff h I the Ih relief rUf for lor which they pray lea UK to said Mi petition and ap upon that tut ground und Url Ih ul be tic I After ll Mil II ruling the tb court lUr went tilt fui fr frI I her ther Into hll ih h a 1 for the benefit of If I the a as follows loi It I doe dO awni lo to the II court rt however 1 lr thai thet the 4 11 pi having set let out oll that thi the defendant ity I ha h has ar a acquired th to 10 do di I the work urk In hi this sidewalk district under the auth fact fall II Isa is isa a complete bar br to 0 the h recovery by b the In II this action fur for the that when whelm h in I applicant seeks from this Ihl i a writ l of ut If he must bt be t I entitled to lii I II It not mint only omi at the tb tina time tn the Ih n Id ais is commenced but bt also 11 at atthe I the time It I issue Till This Til application lion tion lin was 1 flied filed In this Ihl court ourt on un the lh th b bd I day d of I and the defendant city dt it acquired under the I notice 1111 lee of 0 I ut en m I 1 o ii nia ke the Ihl t hi lin 11 i I it thet flit in Iii 11 the lb n ea a 1 of o f on lIn all 11 it on ci rl tin lii II 61 ff ot r AUgUSt 10 ut mi 1 lit II i t 11 v I U tug Ing Ilg thit Ihal the th ion i lion to 10 be b t gl II t I to the f plating to lo i ifs ICa Ca Ill for fM bj by l th the plaintiffs and all applicants that ltd up U until th I h hline 1111 line lime when hI hi Il Juried Ion Inn term tn In n ito ilu the Ih it n II 1 IV tl he ill l mil 1 t IH d till tl n 11 tie Il Irr rr cr time the HIP 1111 J th lb spill stir they ai 1 i nt I II 11 ir tO tOI I illi 4 tin II I In pi ie I null mill gi I a Hinl a ii I r i 10 i hex hI are H still sill trait 16 ti II P ha haI c it t jit a I this tl 1 Tim TI liali ig provided e it n ii 1 the th given to o 0 it II i lr liv y for the h plain I Iff s and nd that thil p should not lo be b granted if tt 1 I tel ler the tM time when 1 a hn hen the Ih city Il has hII in inquired a jurisdiction to 10 build k kIn I In iii II this Ihl under und the statute anil o haying having provided pr df further r fur for the r 1 ua t of permits permit already issued fot III IIII title thin I hi court now how 10 to order orr the th city lt Il iti n lo to Iu Isaac MU such permit would uhl b hi equivalent aa as A counsel for plaintiff HH applicant must moUNt concede to ordering him to 10 violate an nn ordinance of the HIV II which he hI In Is sworn orn to obey o obe and title this th tie Duet court JUr will not hOt do If at al the Ihl time th tb I illy tl Ily d to issue lanue u the pei i tilt he hi h at sited ted wrongfully i 11 i applicants art arc 3 put to 10 their remedy i II I It 1 stems wems mu It the nil court therefore thi thu under city any n that may 11 I b be taken this Ihl the thi th and Its are f not mint entitled tu I ti iti Ih writ of 01 III ni i 1st fur fir I it hili hi t ii th Ih H I sk k mid their I p n II t I II 11 I m u I I H I In hi denied I i i ted |