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Show i i PAGE THE DAILY RECORD FOUR SUPREME COURT DECISIONS owners not sufficiently substantial to justify excluding the latter from the 11 In order to justify their declarations above quoted it would be necesfor the majority of that court to make a satisfactory answer to this sary question: If it be true that the nontaxpayers contribute "as directly as property owners" to the servicing of the bonds, why is it so necessary that the bonds be general obligation bonds? The answer is obvious and inescapable: It is in order to make them salable; and they are salable because there stands behind them the power and the agreement for the levying of taxes upon the property within the district to guarantee their payment. Anyone who will take an honest and realistic look at such a financing plan, and consider a comparison between a bond issue without such a "general obligation" feature and one with it, will see very clearly that it is this power to tax the property in the district as the ultimate guarantee behind the bonds that ' makes such a project feasible. Whereas, if the bond issue were only to be paid through theindirect sources, as from those who pay no property tax, the bond purchasers would only be general creditors, without security. The result would be that the bonds would not be salable, nor the financing project feasible. It requires no further elaboration to show beyond peradventure of doubt that the taxpayers and their property have a very substantial commitment beyond those who are not such property taxpayers, and demonstrates the complete unsoundne&s of the statement that the latter, "contribute as directly as property owners. " In considering the Phoenix case referred to above and the effect it has upon our law, we are led to wonder what has become of the declarations in our U. S. Constitution about the limitations upon the powers of the federal government and the preservation of them to the states and the people. In Amendment IX it is declared that: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. And in Amendment X that: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. Those commitments which then seemed so important to the creators of our government, and which were formulated, agreed upon, and adopted after great deliberation, seem to have been swallowed up and forgotten in a federal encroachments upon the sovereignty of morass of the states and the rights of their citizenry to manage and govern within the ever-increasi- ng sphere of their own legitimate interests. We think it is appropriate to here observe that in our system of of government the judiciary is possessed of an awesome power and therefore individan awesome responsibility. In addition to its duty of judging between ual controversies, it also judges the extent of the power and prerogatives of the other branches of government, the legislative and the executive; and most awesome of all: its own. It is thus essential that the judiciary remain keenly aware of how important it is to properly circumscribe and keep of scrupulously within the limitations of its own prerogatives. It is because st the delicacy of this latter responsibility of judging wherein its own is involved that, for the most part, the enlightened and responsible judiciary of our nation, state and federal, have always thought it to be a sacred obligation to be especially circumspect and restrained as to any exten But in recent years it is our impression that this sion of their own powers. self-intere- important concept has been more and more disregarded and lost sight of, especially by the federal courts. It is our opinion that such a strained overreaching: into the legislative function; into matters which should be the exclusive prerogative of the states; and which is completely unfounded in principles of justice, can only be the result of an arrogance born of being so accustomed to unrestrained of judipower as to become oblivious to traditional and essential standards cial restraint. It brings to us echoes of expressions of the past complaining against the "abuses and usurpations" of a despotic power, "pursuing invariably the same object, . . . the establishment of an absolute tyranny over these states" which would "subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his their assent to acts of pretended legislation": "suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatso- ever" who is deaf to the voice of justice" "a prince despotic power whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people. " We thus express our disagreement with this Phoenix decision because and in error, and also of our conviction that it is so egregiously it represents in deof the trend be the to because of what we believe danger stroying the balance of power between the respective branches of government, and between the sovereignty of the states and the federal government, which have been so essential to the stability and success our system of government has thus far enjoyed. (All emphasis added.) ed I CONCUR: Jr., Justice 7. See statement re judicial restraint in Stickle v. Union Pacific R. Co., 122 Utah 477, 25 P. 2d 867; see also the statements of Justices Frankfurter and Harlan in dissenting opinions in Baker, et al., v. Carr, et al. , 369 U. S. 186, 82 S. Ct. 691, 7 I.. Ed. 2d 663. 8. The quoted phrases are all from 2, 1970 I concur. However, I do not join the majority wherein the opinion states we are in emphatic disagreement with the decision of the United States Supreme Court in the case of City of Phoenix v. Kolodziejski. ELLETT, Justice: (Concurring) I concur, but wish to make it clear that by doing so I am not changing the views expressed in my lonesome opinion in the case of Dyett v. Turner, 20 Utah 2d 403, 439 P. 2d 266. HENRIOD, Justice: the Declaration of Independence. (Concurring and dissenting) not disagree with the main opinion's statement that the bond issue authorized by Washington County is valid, since it was not attacked within the statutory period, - as is pointed out in paragraph three thereof, and I agree that this particular bond issue is not controlled by the decision of the Kolodziejski case. I do However, I dissent from the decision in the instant case for other reasons, principally because it is premature. There is nothing before us except the validity of the Washington County bond issue, and the opinion here should say so, and then stop. To "proceed upon the assumption that upon the issue mentioned general obligation bonds, .it City of Phoenix v. Kolodziejski is controlling in this case" is not at all proper or germane to the only matter we have before us. It simply is an announcement that we will decide a future case not yet filed in this court, on a legal principle that is in no way pertinent to our only issue on appeal, i.e., the validity of some bonds that were approved and became invulnerable to attack almost ,i year before what I think was an untenable, illogical and unsound conclusion in Kolodziejski. For this court now to adopt and quote that case as the law in this case, as the majority does, when that case by its own terms and by the statements of the main opinion is shown to be not pertinent, simply is to indulge prematurely in a bit of anticipatory stare decisis, - which this court has no authority or justification in doing. I believe we are somewhat chumpy in deciding an issue not properly before us, by indulging in a sort of popularity contest in order to satisfy "the expressed desires of the parties," - as is so aptly put by the main opinion. In doing so we neglect the "desires" of the man who owns his home, jeopardized by a bond issue. Not only have we neglected that man but so have the principals in this lawsuit, which has all the earmarks of being to a true adversary proceeding. tailor-made no resemblance with a suit, a Had a real property taxpayer had friend in this lawsuit, the latter would (5), Utah Code have pleaded in the answer the provisions of Title Annotated 1953, as a defense to this action, - which unpleaded statute is the one-sid- ed 12 very basis upon which the majority opinion judiciously spotted and correctly cites in approving the Washington bonds. Had such a defense been pleaded, the complaint would have been the victim of a sudden demise and interment long before the birth of the Kolodziejski infant. The main opinion pretty much concedes that we are dealing with something that is not really before us when it decides this case upon the authority of Kolodziejski, as well as on the limitations statute. Its footnote 2 has to do with sanctions as to strictly "moot" cases. The opinion cites no Utah authority for the procedure or propriety it approves. In proceeding as we have in this case by deciding a future case not before iis, we introduce a new principle into Utah's jurisprudence, - that if a couple of delitigants express a desire to have a problem of importance to the public cided by this court, they need but bring a suit for an injunction against someone, or anyone, which injunction surely will fail. He can then ask, as was done here, that we decide some other matter having no pertinency, and which hasn't happened, but might, although, as was the case here, no other remedies at law are not shown to be unavailable, no offer to indemnify of against a wrongful injunction is offered, and no jurisdiction for timeliness here the a decision of and kind this That case, is appeal is alleged or shown. is just what it says, "to satisfy the desires of the parties, " and any suggestions anent expedition and desired results of an early decision. One thing ?an be said about our decision. It satisfies the desires of litigants and their .ounsel on both sides, the Washington County Commissioners whose bonds are valid, the issuing bond brokers and their counsel, the voters who can vote with the knowledge that not they, but only the real property voters, may have to pay the piper, as it also satisfies those who are hell bent on socializing this country on its way to bankruptcy, and those of the judiciary who approve of Kolodziejski, with full ken that their robes and Cadillacs will suffer no whit when the sheriff executes the mortgage on the widow's mite, -the farm. This, then, leaves only an alternative for the mortgagor, unrepresented in this case, to try and sell his home lest Kolodziejski burgle it. Under the Kolodziejski case a person with a $20, 000 Rolls Roycc, but swimming pool bond issue no real property, could vote for an next-doneighbor, owning upon which he would have no liability, while his to retire the not taxes he does if either pay a $20,000 home, might lose it to inconceivable It defaulted. is bonds, or if for any reason the bonds are the gross me that the majority of the Supreme Court would fail to recognize or discrimination created by its decision. Finally, this court should decide this case under tin- provisions of the Tenth Amendment. The United States Supreme Court in the above case - did not once mention the Tenth Amendment, which in my opinion takes precedence over the questionable legitimacy of the Fourteenth Amendment, as adverted to in the Lonesome George concurrence of Mr. Justice F.llett. The fallacy of the Kolodziejski case is its implication that because the court "one-ma- n questionably had corrected a voting right discrimination by its case, that that result is justification enough to sanction a gross discrimination against one class of property owners in favor of another class of property owners, as is the case here. 1 am no prophet, seer or revelator, but I think that one day the court is going to have to swallow Kolodziejski and eliminate the very discrimination it has now created or else doff its wig in tribute to inconsistency, illogic and suffocation in the quicksand of unprecedented constitutional precedent. There is nothing in that case that says the Tenth Amendment does not apply in this case. I am in favor of deciding this case under principles clearly stated in the latter Amendment, and if this issue, undecided in the instant case, is open to question, the people should be told exactly how the highest court in the land feels about states' rights. Thus, at least we may gain an insight into what will be felt about the states' judicial systems, and could, perchance, guess as to the length of time it will take for us to expect state judicial rigor federal judiciary, divorced from mortis to set in,' resulting in a closed-sho- p who to the any amenability people thought they had authorized not the one, but the two independent systems. (Emphasis added.) one-vot- e" socio-econom- E. K. Callister, WEDNESDAY, SEPTEMBER TUCKETT, Justice; (Concurring) (Continued from Page 3) are franchise. i ic I |