Show THE OLD FORT SQUARE when the original proposition was made by mr bacon in october last to the city bouncil Jo uncil to lease the old fort square for a term of years for a rail way depot the matter was referred to the board of public works consisting of james parsons and cohn the question arose as to whether or not th 4 city could legally lease the property A communication was accordingly sent to city attorney merritt by mr parsons asking him to give a written opinion on the subject it is presented below in full SALT LAKE CITY oct hon M K parsons chairman committee public grounds dear sir your note of the loth dinst requesting a written opinion as to the power of the city council to donate conaw or lease lease the sixth ward or pioneer square to a railroad corporation was received by me the same day and I 1 herewith re pl V the rhe property in question known as the sixth ward or pioneer square which comprises all of block 48 plat A salt lake city survey is a part of the lands patented by the general government to daniel H wells as mayor of salt lake city in trust for fort tie io use of the inhabitants of said city to be distributed as provided by the sets acts of the legislative assembly of the territory Tern tory 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 sr an and by virtue of such ada ion mk mayor wells executed a deed to brigham young sr con conveying v yin to him all of said block 48 aate afterwards r by several mesne coave conveyances the title of said block was vested T in B morris young one of the legatees lega tees of said briham young 1 on tift lath day of march 1879 said B morris young in consideration of the sum of paid to him by salt lake city conveyed said block 48 to said salt lake city A petition has been presented to the council by james H bacon asking the city authorities to lease said block to him for the period of ninety nine years at the nominal rate of 1 and to grant a right of way dav through the city from rom east to west and ana along a street running porth north and south to said block 48 rna and that a guarantee will be given that ar railway shall be constructed from the city westerly to a place called deep creek within eig eighteen eteen months if said right of way and lease shall be granted by the city said block 48 to be used as a depot for the railroad proposed to be constructed mr bacon does not propose to build the railroad himself and presumably it is to be built by a corporation organized for that pu purpose SV several questions questions arise 1 1 I has lock block 48 been dedicated dedicate d for public purposes as a public equale or park I 1 from examination I 1 have been unable to find any formal order or declaration by the former or present city council dedicating sad block to public uses but as evidencing the understanding of the city authorities that said block was a public square dedicated to the use of the public I 1 find in the records the following facts A that T hat on the of ef march 1879 by resolution of the council the property prop eity recently purchased by B morris orris young known as the theold old fort block was named and therb thereafter after to be known as pioneer square aare 1 i B on the of march 1880 the committee on public grounds reported that pursuant to the authorization of the council that they had advertised for plans for the improvement of public parks and squares offering the following premiums to the successful bidders for the plan of liberty park for the plan of washington square 20 for the P plan n of the tenth ward square 20 for the plan of pioneer square 10 the report was presumably adopted C on april 3 1883 was ampro to pay the premiums offered for the best beat plans for the improvement of public parks parka to the following successful competitors don carlos young forth for the plan n of liberty park Will S hed hedges F for the V plan an of washington park 50 charles charlea S wilkes for the plan of benth tenth ward square 20 william R Jonea Jonee for the plan ian of pioneer square 10 pt it will be seen from the foregoing that the city council designated after the purchase of block 48 that property as pioneer square abat premiums were offered for plans for the improvement of public parks and squares and that pioneer square was named as one of such public 0 parks or squares and that there bere aft after r money nay was appropriated and paid fa for an anoh h PI plans ns wa to the successful competitors ti rs there for S sach uch plans are on file in the city engineers office it is true that pioneer square was leased to one reading but if pioneer square squar eKas was a public square this lease was ultra vires the corporation yet in that same lease reading undertook to plant trees etc for the adornment and beautifying of said square it would appear from the foregoing that the council intended to dedicate pioneer sc square juare to the public use a formal dedication is not required but it ma may IT be inferred front from acts and declarations hero re we have the naming of the square P te t e mention of it as a public park or squire square and plans for its improvement these are facts strongly in favor of dedication and where the animus dedi candi is established no uses for any definite period by the public is necessary see sec dillon dilion mun corporations if then there has been a dedication edi cation of this property as a public part parac or square it is not in the power of the city to sell or lease aitor give it away A municipal corporation cannot except under valid legislative authority dispose of the public squares streets or 2 dillon mun cor corp see sec TJ S 16 barber N ta Y U S A lease is asked for in this ewe case but a lease is a conveyance or grant and is an alienation of property for a term and during said term Is is as absolute as a deed eed 2 another question arises as to whether tho the city has yie oe i light ight admitting that block 48 ot or pioneer square is not a public square and hrs has not been dedicated to the public use to lease said square for a nominal rent to a railroad corporation virtually giving it away to aid said corporation po ration in the project of constructing a railroad by act of congress parsed july 30 1886 it to is provided that no territory of the united united states now or hereafter to be organized or any political or municipal corporation or subdivision of any such territory shall hereafter make any subscription to the capital stock of any incorporation or company or association having corporate powers or in any manner loan its credit to or use it for the benefit of any such company or mso association clatton or borrow any money for the use of such company or association the evident intention of congress in passing this ket act was to correct a growing evil in the territories viz to prevent territories and cities therein from aiding railroad corporations by unwise and lavish grants of money or credit in many cases almost bankrupting territories and counties and cities therein while I 1 do not contend that the proposed ilease comes within the letter of the prohibitory act of congress cited at least a strong argument can be made to show that it comes bithis withla the spirit and intent of said act I it will twill be observed that the act of congress prohibits territories counties and cities from in any manner loaning its credit etc to any corporation or association it would be a strange anomaly that the alt city Y could not take a share of stock or subscribe uba cribe one dollar to aid any such cor portion or association and yet it could virtually donate property worth over to aid in the construction of a railroad by a corporation if that be the construction of the act of congress then the mischief intended to be prevented is not prevented at all for by a very simple device i e ea by giving away all its property not dedicated to the public use the city could almost bankrupt itself in construing statutes atutes Pt they should be 0 40 o cons rued as to meet the mischief intended to be prevented 3 but if we admit for the sake of argument that block 48 or pioneer square has not been dedicated to td 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 ct of congress yet I 1 am fully convinced that the city has no nn power to virtually lv away said square in my judgment it would be vura ultra vires f the city holds this property in trust for the inhabitants thereof an can only dispose of it ir either ty by virtue of ofa a power expressly pressly ej conferred by the legislature or 0 r 11 or fairly incident to the ex pres pre s power which would include such as a are ement essential ial to the declared objects of the corporation the power granted by the legislature is to ampro appropriate money for corporate purposes only and provide for the payment of debts and expenses of the corporation aaion and to purchase receive hold sell lease and convey and of the prop orty arty real and F personal ers onal the benefit of the city both within and without its corporate cor boundaries boand es to improve and protect such property and to do all other things in relation thereto as natural persons it la in conceded that powers conferred upon munica municipal 11 corporations in respect ta 0 o corporate brunds runds funds and corporate prope property are ar public trusts slid and the property awil owned by y the corporations is held by them in west tor for the purpose specified or author ier iad in their acts of incorporation the grant of power to salt lake city Kpor atlon n by the legislature an respect to property is to purchase receive hold ml I 1 lease couve convey and dispose 0 of I 1 I 1 etc far athe it 9 benefit of the he city 1 I 1 take it that to dispose of ie proper y rp etc for the benefit of the city is to depoe pow of it at the best beat possible price d to apply the money so derived only to w corporate dor borate purpose seq it surely cannot be b said that subsidizing a proposed railroad by conveying to it property owned by y the city without compensation is a corporate orp orate purpose nor can it bensaid be said tw hat giving a valuable piece of real estate ta t A private railroad corporation is for the benefit of the city in the sense in which these hee words are used in the charter true the construction of the proposed railroad may beige benefit fit some or adlof all of the innabi akau of the olt city so 0 o it may with equal truth anith be said za that the erection of any sn valuable improvement benefit the antt of the city the erection of a factory 7 of any kind or of a smelter or r of a stockyard or a fine hotel in ift the city may be a benefit but it would hardly be contended that it within the power of mhd city to aid pit enterprises by a donation of a part of the real property of the city the city might wn own it a square of ground in the city which had had no improvements there thereon onlan nd might offer to put up a wo hotel or other building thereon the erection of such a building and the noney necessarily expended in such finbel erection a would a benefit the inhabitants ot ats of the city yet it would scarcely be contended that it bould would be within the powers granted to the he city to give away the square to such syndicate the same remarks would apply to any private enterprise where a number of persons are to be amplo largo large sums of miney to be expend the cit city if any project which chic benefits the inhabitants of the city is to be subsidized by the donation of city pro property porty cherolis rolis fhe limit to the powers of the city in the disposition of property held but by it in trust as all city property is held 1 I dont think the words for the benefit of the city wilt will bear any such construction st in my judgment the words for the benefit of the city mean a benefit to the city in its corporate capacity 61 1 I repeat again that it is a settled rule that municipal corporations may not apply pl their heir funds or other property to any other than corporate purposes my attention basteen has been called to the case of adams vs memphis fe little rock railroad company et al decided by the supreme court of tennessee and reported in 2 coldwells Col wells reports where the supreme court of tennessee decided that the power to hold real and personal or mixed pru property perty and to sell lease or dispose of the same for the use and benefit of the city by necessary implication compre comprehends heAds the right to exercise suz such other powers not expressly granted or forbidden as are necessary necea sary to develop the growth growth or prosperity of the city 9 in that case the city of memphis had bad mortgaged certain of its real property to secure the bonds of a railroad compon company Y there was no special or express legislative a authority to the city of memphis to aid a railroad by mortea mortgaging efing its property to secure the bonds 0 offee t e railroad company judge dillon who is acce accepted ted as the best authority in the anitz united states on municipal corporations in commenting on that case says and upon the accepted canons of constructions of municipal powers the augbor cannot concur with the learned court in the doctrine that the ordinary clause in the charter giving the municipality the power to sell and dispose of the property empowered it to pledge it as security security for the bonat of the railway company 2 dillon mun corp section upon the whole case tam lam of the opinion io n that the city council has no power to grant the petition of james H bacon and make the leme leao asked by him and further I 1 am of the opinion that any attempt to make said lease by the city could be successfully enjoined by the courts cours in an action brou brought glit for that purpose by any taxpayer of the city S A merritt city attorney |