Barnes v. Lehi City

• Decision Date: 23 April 1929
• Docket Number: 4805
• Court: Utah Supreme Court
• Parties: BARNES v. LEHI CITY et al

279 P. 878

74 Utah 321

BARNES v. LEHI CITY et al

No. 4805

Supreme Court of Utah

April 23, 1929

Rehearing Denied July 27, 1929.

Original prohibition proceeding in the Supreme Court by G. F. Barnes and another against Lehi City and others.

WRIT DENIED.

William H. Bramel, of Salt Lake City, for plaintiffs.

J. F MacLane, George R. Corey, and William Story, Jr., all of Salt Lake City, amici curiae.

A. H Christenson, of Provo, for defendant Lehi City.

Dey Hoppaugh, Mark & Johnson, of Salt Lake City, for defendant Fairbanks, Morse & Co.

EPHRAIM HANSON, J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur.

OPINION

EPHRAIM HANSON, J.

This is an original proceeding in this court, brought upon notice to the defendants, seeking a peremptory writ of prohibition to prevent Lehi City, its mayor and councilmen, from entering into a conditional sales contract with Fairbanks, Morse & Co. for the purchase and installation of a certain electrical generating unit with its accessories. So far as is necessary for a full understanding of the issues presented for consideration and determination, the facts as disclosed by the affidavit and petition of plaintiffs, are:

Plaintiffs are qualified electors residing in Lehi City. They have property upon which they pay taxes to the city. The application is made for their benefit and protection, as well as for the benefit and protection of other property owners and taxpayers in like situation. Lehi is a city of the third class and has a population of 4,000 people. Defendant Gilchrist is mayor, and defendants Larsen, Fox, Peterson, Lott, and Christopherson are councilmen, of the city. Fairbanks, Morse & Co. is a corporation organized under the laws of the state of Illinois, and it is duly qualified to do business within the state of Utah. Lehi City now owns and operates a municipal electric light and power plant, but the capacity of its plant is not sufficient to supply enough electricity to light the streets of the city and at the same time permit the city to sell light or power to its inhabitants for use while the street lights are burning. To overcome this condition, and provide sufficient facilities to permit the city to furnish light and power to its inhabitants, while the street lights are being used, the mayor and city council, for and on behalf of the city, have made and adopted certain plans whereby it is proposed to enlarge the capacity of the present plant by purchasing a new 180-horse power Fairbanks-Morse Diesel engine generating unit, complete with accessories, together with transmission system, from the defendant Fairbanks, Morse & Co., and to have that company install the same.

The plan further provides that the city shall pay the company for the machinery and the labor incident to its installation the sum of $ 42,372, to be paid in installments of $ 588.50 each 30 days, the first payment to be made 60 days after the company informs the city that the plant is ready for operation. All deferred payments are to be evidenced by pledge orders of the city, payable to the order of Fairbanks, Morse & Co., due and delivered on the date of the completion of the installation of the plant. The pledge orders are to bear interest at the rate of 6 per cent per annum, payable semiannually as it accrues, but the installments and interest thereon, the cost of insuring the plant, and the necessary expenses of building the same, are to be paid out of a special fund created by appropriating and setting aside all the proceeds derived by the city from the product or service of the plant. The city "agrees to adopt resolutions providing for the creation of a special fund into which all receipts for the product or service of said plant shall be deposited, and to credit such fund at the present cost thereof for all product or service of said plant used by the city or any department thereof for any and all public purposes."

In reference to the special fund the contract expressly provides:

"It is agreed that the obligation to pay the deferred installments of said purchase price and said pledge orders issued in evidence thereof, and to pay for extra time and expenses of the company's engineer, is not a general obligation of the said municipality, payable from taxes or its general funds, but only a special obligation payable from the net revenues of the light and power plant of the municipality. 'Net revenues' shall be deemed to represent the balance of the gross receipts of the municipality's light and power plant after the payment solely of the legitimate and necessary expenses of the operation of said plant. The municipality covenants to operate said plant in an efficient and economic manner, and to maintain rates for the product or service of said plant which will produce sufficient revenue to provide for the payments called for by this contract, so far as it may be permitted to do so by law; such rates, however, shall not exceed rates now charged in Lehi City for like service."

The title and ownership of the machinery or material specified in the contract shall remain in the company or its assignee until final payment therefor is made in full, as provided for in the contract, and shall not pass until all the pledge orders given, or extensions thereof, or any judgments that may be taken, are fully paid in money and satisfied; that machinery and material shall be and remain strictly personal property, and retain its character as such, no matter whether on permanent foundation or in what manner affixed or attached to any building or structure. The city agrees to operate the plant as a municipal plant until all the obligations under the contract have been fully paid and discharged. The proposed contract has been signed by the city but has not been delivered to the company. The pledge orders provided for in the contract have not been signed or delivered, but on October 9, 1928, the city passed an ordinance creating the special fund provided for in the proposed contract.

It is further alleged in the application for the writ that the city never at any time advertised for bids for the proposed machinery and the installation of the same; that not any part of the expenses incurred, or that will be incurred, under the proposed contract, has been provided for in the budget of the city for the year 1928; that the amount to be paid under the proposed contract in the manner therein provided, added to the present running indebtedness of the city for the current year, will be in excess of the taxes and revenues of the city for such year; that the proposition to authorize such a purchase and payment has never been submitted to a vote of the electors who paid property taxes in Lehi; that no certificate of public convenience and necessity was ever applied for or obtained from the Public Utilities Commission of the state of Utah, to authorize it to enter into the business of selling electrical energy to its inhabitants; that the proposed contract was never submitted to or approved by the Public Utilities Commission; that the proposed contract is ultra vires; that the city has no jurisdiction or power to enter into the proposed contract, and that, unless prohibited by this court, the city, through its mayor and council, and Fairbanks, Morse & Co., will enter into such contract, and thereby cause the plaintiffs and others in the same situation with them great and irreparable loss and damage; that the plaintiffs have no plain, speedy, or adequate remedy in the ordinary course of law for the prevention of the wrongs complained of.

The city, its mayor, and councilmen appeared and jointly demurred to plaintiffs' affidavit and application. Fairbanks, Morse & Co. appeared and filed a separate demurrer thereto. Both demurrers are on the ground that the affidavit and application for a writ of prohibition do not state facts sufficient to entitle plaintiffs to the relief prayed for, or to any relief.

The only issues between the plaintiffs and defendants are raised by the demurrers, but certain attorneys appearing in the cause as amici curiae have raised the question of the jurisdiction of this court to entertain original jurisdiction of the application for a writ of prohibition under the facts set out in the plaintiffs' affidavit and application. Inasmuch as the question of the court's jurisdiction is one that will be raised by the court sua sponte, such attorneys were given leave to discuss orally and by briefs the question of the jurisdiction of this court to issue the writ applied for by the plaintiffs. That question will first be determined.

Counsel appearing amici curiae contend that, in the provision of our Constitution (article 8, § 4) which confers original jurisdiction on this court to issue the writ of prohibition, the writ referred to is the writ known to the common law, the true office and function of which is to prevent an inferior tribunal, board, or individual from exercising judicial or quasi judicial functions, without or in excess of jurisdiction; that the writ as contemplated in the Constitution does not issue to prohibit executive or ministerial acts, without or in excess of jurisdiction. It is next contended by them that, if it be assumed that the writ may be employed to prohibit executive or ministerial acts, it nevertheless will not issue where there is a plain, speedy, and adequate remedy in the ordinary course of law, and that in this case the plaintiffs have such a remedy by injunction.

In support of the first contention we have been referred to the following cases: Maurer v. Mitchell, 53 Cal. 289; Camron v. Kenfield, 57 Cal. 550; State v. Hogan, 24 Mont. 379, 62 P. 493, 51 L. R. A. 958; Winsor v. Bridges, 24 Wash 540, 64 P. 780; State v. Ewert, 36 S.D. 622, 156 N.W....