Booth v. Midvale City

• Decision Date: 08 November 1919
• Docket Number: 2280
• Citation: 55 Utah 220,184 P. 799
• Court: Utah Supreme Court
• Parties: BOOTH v. MIDVALE CITY et al

184 P. 799

55 Utah 220

BOOTH v. MIDVALE CITY et al

No. 2280

Supreme Court of Utah

November 8, 1919

Application to Supreme Court by J. Wilmer Booth for a writ of prohibition against Midvale City and another.

WRIT DENIED.

J. C Wood, of Salt Lake City, for plaintiff.

H. A Smith, of Salt Lake City, for defendants.

THURMAN J. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

This is a proceeding for a writ of prohibition restraining and prohibiting Midvale City, a municipal corporation of Salt Lake county, Utah, from entering into a contract with said county for paving a certain street within the limits of said city. It is stipulated by the parties that the facts alleged in the answer of the defendants are true and constitute all the facts pertaining to the matter in controversy. The answer, in substance, alleges that defendant city is a municipal corporation of the third class; that the other defendant, John Aylett, is its duly elected and qualified mayor; that plaintiff is a resident and taxpayer of said city, both as to real and personal property; that Center street is a public thoroughfare running east and west through said city, and from the Oregon Short Line Railroad on the east to Jordan river on the west the street is wholly within said city, and between said points is a distance of 7,920 feet; that defendant, if not restrained, will enter into a contract with said county whereby said city and county will jointly construct a bituminous pavement eighteen feet wide along and upon said Center street between said points and throughout the entire distance above named, at a total expense of $ 42,554.55; that the city's portion of said amount will be one-third thereof, or $ 14,151.52, which said last-named sum the city intends to pay unless restrained by order of this court; that defendant has not given notice to levy a special tax to raise funds for the payment of said improvement and has taken no steps to that end, but, on the contrary, the defendant, unless restrained, intends to pay its proportion, or one-third of the cost of said improvement, from the general fund of said city; that the city, by its council, has passed a resolution authorizing its mayor to enter into a contract with Salt Lake county whereby the city will agree to pay one-third of the cost of said improvement if the county will pay the remaining two-thirds; that such payment by said city will increase the taxes to be levied against the real and personal property of the plaintiff in the same proportion and in the same manner as it will increase the taxes of other residents of said city and not otherwise; that said Center street is the principal street for traffic and travel through said city, and for more than thirty years last past has been used as a public highway; that it is extensively traveled and forms the chief thoroughfare from Salt Lake City through Midvale City to Bingham Canyon and numerous towns in said county; that said street at all places within the limits of said city is in bad repair and wholly unfit for traffic or travel, and it is necessary to expend approximately $ 4,950 on said street in order to place it in condition for temporary use; that when such money is expended for said purpose such repair will be temporary only, and it will be necessary from year to year to expend large sums in maintaining said street within the said city in such condition that it may be used as a public street; that for many years last past said city has been compelled to expend large sums per annum in sprinkling said street within the limits of said city, and said sums have been and in the future will be necessary for said purpose; that if said street shall be paved in the manner contemplated, sprinkling thereof will not be necessary, the improvement thereof will be permanent, and for a long period of time it will not be necessary to expend money in repairing said street; that it is for the best interest of all the people of said city to permit the defendant city to enter into said contract with Salt Lake county.

The facts further show that the bridge on Center street across the Jordan river is in such condition that it is dangerous and inadequate for traffic and travel to and through said city, and that it is necessary to replace the same by a steel structure; that defendant will be compelled to and will replace the same with a steel structure at a cost amounting approximately to $ 10,766.32; that the total cost of paving said Center street and replacing said bridge by one made of steel will be approximately $ 52,344.12; that said street extends through farming and vacant lands on both sides for practically the entire distance, and it is impracticable to pave the same in whole or in part from funds raised by local assessment upon abutting property; that the expense thereof would be wholly disproportionate to and in excess of any special benefits which said property owners would receive from said improvement; that all the inhabitants of said city will derive substantially the same benefits from the improvement now contemplated in the proposed agreement with said county; that by said proposed agreement with said county the county will pay two-thirds of all the costs of said improvement, including the installation of said steel bridge, and the defendant city will pay the remainder, to wit, the sum of $ 17,448.04; that State street from Salt Lake City to the intersection of said Center street is now paved with concrete and bituminous pavement and Salt Lake county proposes to and will pave the public highway from the Jordan river westerly to the town of Bingham, and, unless defendant is permitted to and does join said county in the paving of said Center street, said street will remain unimproved for an indefinite length of time and will remain in such condition that it will not be suitable or fit for public traffic or travel; that if defendant is permitted to join said county in said improvement the entire distance from Salt Lake City to Bingham Canyon will be placed in good condition for public travel. Such, in substance, are the admitted facts.

At the close of the oral argument the court was convinced, without further investigation, that the writ prayed for should be denied, and so ordered immediately, in order that the defendant might proceed in its contemplated agreement with the county. It only remains to state the contention of the parties and our reasons for the conclusion arrived at.

Plaintiff contends that notwithstanding the provisions of Comp. Laws Utah 1917, section 570x8, which confers upon cities, among other things, the power to pave streets within their limits, and the provisions of section 671, subd. 3, which authorizes cities to levy a tax annually of not to exceed two mills on the dollar to open, improve, and repair streets, still the cities are without power to pay for the pavement of said streets otherwise than by local assessment upon property abutting upon the streets to be improved. In this contention plaintiff relies upon the provisions of said Comp. Laws, sections 673, 674, and 675, all of which sections relate to special taxes levied upon the property of abutting owners in paving districts laid out with the view to improvements by the method of local assessment. Sections 674 and 675, specially relied on by plaintiff, read as follows:

"674. To defray or cause to be defrayed the cost and expense of such improvements or any of them, the city council shall have power and authority to levy and collect special taxes and assessments upon the blocks, lots, or parts thereof, and pieces of ground adjacent to or abutting upon the street, avenue, alley, or sidewalk thus in whole or in part opened, widened, curbed and guttered, graded, parked, extended, constructed, or otherwise improved or repaired, or which may be especially benefited by any of said improvements; provided, that the above provisions shall not apply to ordinary repairs of streets or alleys, and that one-half of the expense of bringing streets, avenues, alleys or parts thereof to the established grade shall be paid out of the general fund of the city; and such council shall have power to pave, repave, or macadamize any street or alley or part thereof in the city, and for that purpose to create suitable paving districts, which shall be consecutively numbered, such work to be done under contract.

"675. The cost of paving, macadamizing, or repaving of the streets and alleys within any paving district, except the intersection of streets and space opposite alleys within such district, shall be assessed upon the lots and lands abutting upon the streets and alleys in such district, in proportion to the square feet, or feet front, or both, so abutting upon such streets and alleys."

The matter in controversy turns entirely upon the question as to whether the method provided by the sections just quoted for paying the cost of paving streets is exclusive or whether the city is also clothed with authority to pay for similar improvements from the general fund. If plaintiff's contention is correct, it follows that in no case can the city use the general funds or any part thereof for the pavement of its streets. No matter where the street may be situated, nor how generally it may be used for traffic and travel, if paved at all it must be paved exclusively at...