Branch v. Salt Lake County Service Area No. 2 Cottonwood Heights

• Decision Date: 03 November 1969
• Docket Number: No. 11696,No. 1,1,11696
• Citation: 460 P.2d 814,23 Utah 2d 181
• Parties: d 181 Robert A. BRANCH, a taxpayer, for himself and for all others similarly situated, Plaintiff and Respondent, v. SALT LAKE COUNTY SERVICE AREA NO. 2--COTTONWOOD HEIGHTS, a body corporate and politic, Paul Bywater, Donald Sawaya, and Don Antczak, as Trustees of said Service Area, Defendants and Appellants, Salt Lake County Service Area, and Terracor, Inc., Intervening Defendants and Appellants. 1696.
• Court: Utah Supreme Court

Page 814

460 P.2d 814

23 Utah 2d 181

Robert A. BRANCH, a taxpayer, for himself and for all others similarly situated, Plaintiff and Respondent, v. SALT LAKE COUNTY SERVICE AREA NO. 2--COTTONWOOD HEIGHTS, a body corporate and politic, Paul Bywater, Donald Sawaya, and Don Antczak, as Trustees of said Service Area, Defendants and Appellants Salt Lake County Service Area No. 1, and Terracor, Inc. Intervening Defendants and Appellants.

No. 11696.

Supreme Court of Utah.

Nov. 3, 1969.

Don A. Stringham, Joel M. Allred, Larry M. Follett, Stephen G. Boyden, Salt Lake City, for appellants.

David E. Yocom, Salt Lake City, for respondent.

ELLETT, Justice:

This appeal involves the constitutionality of Title 17, Chapter 29, U.C.A.1953, as amended by Chapter 34, Laws of Utah, 1967, and Chapter 44, Laws of Utah, 1969. It is known as the 'County Service Area Act' and was originally enacted as Chapter 28, Laws of Utah, 1957.

The original act in its entirety was held to be unconstitutional in the case of Carter v. Beaver County, Etc., 16 Utah 2d 280, 399 P.2d 440. The law had been amended twice since 'Carter' was decided; however, the trial judge thought he was bound by the decision and gave a summary judgment in favor of the plaintiff to the effect that the statute as amended is invalid.

The original act was quite broad and provided that

Whenever an unincorporated area in a county requires one or more of the following extended services which are not provided on a county-wide basis within and without cities, including but not limited to the following: extended police protection; structural fire protection; culinary or irrigation water retail service; water conservation; local park, recreation or parkway facilities and services; cemeteries; public libraries; sewers sewage and storm water treatment and disposal; flood control; garbage and refuse collection; street lighting; airports, planning and zoning; local streets and roads; curb, gutter and sidewalk construction and maintenance; mosquito abatement; health department services; hospital service; and their provision does not require the issuance of bonds or the issuance of other long term obligations, such services shall be supplied by the creation of a county service area.

In the Carter case this court thought the services permissible under the act were too many, and the Legislature attempted to and did correct that defect by its 1967 amendment wherein the words 'within and without cities, including but not limited to the following' were deleted, so that, as the law now reads, the only services to be made available to a local area are specifically set out.

As a matter of fact, the Carter case limited its application by the following language:

In so declaring we desire it to be understood that this ruling applies to the instant controversy, and that apart from this, this decision is to have prospective and not retroactive effect.

We, therefore, are free to examine the amended statute upon its own merits without holding that the Carter case must be overruled in the event we think the act as at present drawn does not offend against the provisions of our constitution.

The first legal principle to be observed is that there is a presumption that a statute is valid and constitutional; and one who questions it has the burden of convincing this court of its unconstitutionality. (See 16 C.J.S. Constitutional Law § 99 for the general law.)

This court in the case of Broadbent v. Gibson et al., 105 Utah 53, 140 P.2d 939, stated the law of this state as follows:

In determining constitutionality, statutes are presumed to be constitutional until the contrary is clearly shown. It is only when statutes manifestly infringe upon some constitutional provision that they can be declared void. Every reasonable presumption must be indulged in and every reasonable doubt resolved in favor of constitutionality.

The act in question provides for specified services when they are not furnished on a county-wide basis. This eliminates any possibility that the Service Area is impinging upon county rights or conflicting with county authority. The Service Area can only have services which are not furnished on a county-wide basis. The county gives to a service area the power to enjoy specified services which because of various reasons cannot be furnished to the county as a whole. The act was designed to permit people who reside in subdivisions outside of incorporated areas to have the same services which an incorporated city or town might have.

This court has on divers occasions ruled upon the constitutionality of provisions of our laws setting up service areas under specific names. For instance, in Tygesen v. Magna Water Co., et al., 119 Utah 274, 226 P.2d 127, an original proceeding was begun in this court to obtain a writ prohibiting the defendant from issuing and selling bonds to provide a source of culinary water for people living in an area set apart pursuant to Chapter 24, Laws of Utah, 1949. It was there contended that the statute was in conflict with the State Constitution. That statute read:

The board of county commissioners of each county in this state may hereafter establish in the manner hereinafter provided, one or more improvement districts in such county, and any district so created shall have authority through construction, purchase, gift or condemnation, or any combination thereof, to acquire and operate all or any part of the following or any combination thereof:

(1) Systems for the supply, treatment, and distribution of water; and (2) System for the collection, treatment and disposition of sewage. No district created hereunder shall include within its boundaries any incorporated city or town or part thereof; and the boundaries of no district shall overlap the boundaries of any other district.

Mr. Tygesen asserted that the statute just quoted violated the provisions of Art. VI, Sec. 29, and Art. XI, Sec. 5 of the Constitution of Utah, because it delegated to a special commission, private corporation or association the power to assume, supervise or interfere with municipal functions, and had by special law created a corporation for municipal purposes.

The plaintiff in the instant case likewise claims that the Service Area Act conflicts with Art. VI, Sec. 29, of our Constitution, which reads as follows:

The legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, to levy taxes, to select a capitol site, or to perform any municipal functions.

In answering the contention made in 'Tygesen,' this court at pp. 279--280 of the Utah Reports, 226 P.2d at p. 130, held:

It is plaintiff's contention that since under present day conditions counties have assumed in unincorporated cities or towns many of the functions of the incorporated cities or towns such as regulating police and fire protection, lighting streets, collecting garbage, surfacing and clearing streets and sidewalks and operating sewers that the functions of the counties are municipal functions the same as that of incorporated cities and towns and therefore the provisions of Art. VI, Sec. 29, forbidding the legislature to delegate to special commissions, private corporations or associations the power to perform municipal functions applies to the functions which the counties have assumed.

Assuming, without conceding, that the term 'municipal functions' as used in Art. VI, Sec. 29, applies to the functions of counties as well as cities and towns, nevertheless, plaintiff's contention is not tenable. The management and control of the Improvement Districts and its properties and effects are used by the Act vested in a Board of Trustees even though these districts are initiated by the county commission. Their operations will be separate and distinct from any of the functions assumed by the counties in those unincorporated cities or towns. Although these operations might be in the same territorial boundaries as the improvement districts, they will have no control over the property or effects of the counties or of the manner of the performance of any of the functions which the counties have assumed.

The case of Lehi City v. Meiling, etc., 87 Utah 237, 48 P.2d 530, was one wherein the Metropolitan Water District Act was assailed on constitutional grounds as is claimed in the instant case. There this court rejected the contention that the Act was in conflict with Art. VI, Sec. 29. This court also rejected the claim that the statute permitting an indebtedness in a sum of not to exceed ten per cent of the value of the taxable property of the district was in conflict with Art. XIV, Secs. 3 and 4 of our Constitution. ¹

The identical claim is made in the instant case that the debt incurred by service areas can cause the existing indebtedness to exceed the four per cent limitation. This court at pp. 257--258 of 87 Utah, 48 P.2d at p. 540, said:

We are satisfied the Metropolitan Water district is not a subdivision of either a city, town, or county within the meaning of the word 'subdivision' as used in the Constitution.

The other question is whether the Metropolitan Water District, if otherwise a valid organization, is a municipal corporation and hence subject to the 4 per cent limitation imposed on 'other municipal corporations' mentioned in section 4. If such district is in the class of 'other municipal corporations' referred to, it is then subject to the limitation of debt therein imposed. If it is not such a municipal corporation, and is otherwise lawfully created, it is not then subject to such limitation. If the district be a municipal corporation it would not necessarily follow that the act is void but the limitation of debt would be the constitutional limit of 4 per cent instead of the statutory 10 per cent. We think it is not a municipal corporation...