| Show POWER OF THE CITY GITY V S TO LAY SIDEWALKS I- I Judge Howell of Ogden Makes I Important Ruling in J This Matter I CONTRACTOR HAS NO R RIGHT i S t In ease Cose of or Corison Sanborn AS vs S' S S 1 i City of ot Court lie fuses to toS f S Order HII to Recede f. f c I MountaIn Inter S Republican S Bureau II JJ 0 Street S Ogden Aug AuS 30 In In an nn opinion l handed down toda Howell of or t today Judge e tho the Second District court denies n a petition for Cor writ of or mandate In the ca o of oC Joseph Carl Carlson on and Fr Fred d R P. S against Og Ogden tm City an and CIt City I l A. A R Ii Parker The Tho action was waa brought to compel City Engineer t S Parker to Issue a permit to U F. F F. F Sanborn Sanborn San- San born orn a licensed contractor to con- con 5 t u a sidewalk for lor the plaintiff Carlson Carlion on Th The action of the court In refusing refusing refus refus- ing to Issue the tile writ was by bythe bythe 1 the assertion that the Issuance of ur the writ would bo be equivalent to ordering L I the city engineer to violate an ordinance or or- of or fhe the city which he Is sworn to o obey c since the plaintiffs plaintiff's petition was as mn made e after the city had acquired Jurisdiction In that particular local load ir S ity fly F S Settle SeUlo Point it t. t The decision of or the court Is of or th the T 4 utmost Importance In that It H s settles fr the much disputed question as to whether a private contractor has the right t to proceed to construct sidewalks sidewalks side side- walks wall 9 after aner the city has i created a n. k sidewalk district within which the property rop rt In question 1 It is located S' S Tho rho court In passing upon upun the quesA ques- ques r A tUrn lSon of or the tho alle alleged misjoinder of or parties holds that the same saint are properly prop prop- r erly rl Joined but ut holds that th the city Il for Cot tho the of or S- S purpose revoking re permits i. i can attach a different nt meaning to I j the words gaining or acquiring jurIsdiction jur- jur t to make the Improvements o or OJ to do the work vork of or building sidewalks side side- t walks than that of or the statute pro- pro r. r veiling Co for I publication of a notice of or intention creating districts for Cor or pub- pub ft i. i He lie Improvements and providing IHo Corthe for Cor forthe the levying of or special taxes therein I The Time court COUlt holds that the tIme city has this 5 right th there r being absolutely no con- con filet between the slat statute ute ntH and I the time or or- and amI that the time o objects of both arc dissimilar liar Court a Gives hs nt n ns r. r In summarizing the court i says pays as a's It d sec sec-ms to the court that so far Car as ns the answer sets out the annual contract f with the J J. J F Construction com company pan It on only I materially consists Iii In furnishing an additional reason l wh why the city ml might ht de desire Jre to have tho the fr Jr c. c prospective sidewall sidewalk districts to 0 which the he contract Is Jg applicable roe from an any obstructions placed there by 0 private contractors for tor a n. reasonable S time iliac prior to tin commencement of at 55 S I work therein by y th the said t J P P. ONeill O'Neill I II Construction t ty y nr further anil-further tl t 0 or T han tian that It II no to 10 the Iho S matter in hand r J. c It U does RIc seeni to the tho court however that the answer having set sel out that the thc S defendant cIty cily has hns acquired Jurisdiction jurisdiction tion Lion to do the work In this sidewalk district un under tinder Cr the statute such uch fact Is a a. complete bar ar to the recovery by bythe y time the plaintiffs In this action for tor the reason rea rca son pon that when the applicant seeks from Cram this court a writ of mandate he must be he entitled to it not only onh at the time lime the proceeding W was vis q commenced but ohm also at the time It ma may issue This S application was as flied filed In this court on the da day of August 1906 and the tho thol l' l defendant city acquired Jurisdiction under the notice of Intention to make makeS S the the- improvements contemplated thereIn there there- nIn n In In the way of or concrete sl sidewalks on ons I s the of Au August u t. t 1906 so O that even ln i. i L. L assuming that th the tho construction to be he given tho the ordinance relating to permits J as Is contended for or h 1 by the plaintiffs and applicants I that up tip until t. t th iii th time when th the city acquires jurisdiction juris- juris 7 5 diction to do the work under tinder the statute stat stat- ute ulc the thC pi should be granted still S nt at the theer er very time the plaintiffs made madeI tot I this application thc they were not entitled t 1 to have the permit granted and of or I course the they are arc still le less q entitled to have ha It granted at t this time As S was tb said tImI In the tho case caJe of or Hall V. V Stelle Selle 2 So Si h to Ala ln A writ of or mandamus will I. not Ilot be lie awarded to compel an act lct that ma may have be been een n the duty of or orI I 5 the to lo perform at nt the time the was commenced commence but ut which S lias since been forbidden n by y law 10 r 5 Will Not Order En S. S The Tue or ordinance having provided oven under the construction given Iven to it c. c counsel for the and antI by plaintiffs applicants I ennUI cants that lInt permits should not be granted c after acter the time lime when the city has Ivis acquired Jurisdiction to build I sidewalks in this district under tinder the tho statute and having provided further for Cor the revocation of permits already y Issued for Cor or thin court now to order the city engineer tr to Issue such permit would be c equivalent as counsel for and applicants must concede f to ordering him to violate an ordinance ordinanceS ordinance'S S 'S of or the time city which he ll Is sworn to obey mill and this the court will not do J If at the time the city engineer refused to lo Issue the till permit he acted wrongfully plain plain- S tiffs lifts and antI applicants are arc put to their 4 remedy In III damages hit It It seems t to lo the 0 v court for i that under an any views S that may imlay be taken taken tak tal en of or this Juts matter the plaintiffs and applicant upS ap up- S are not entitled mUlled to lo the writ of ur mandate for or which the they ask asle and thou all I j petition may be denied |
