Dewey v. Doxey-Layton Realty Co., DOXEY-LAYTON

• Decision Date: 20 December 1954
• Docket Number: No. 8212,DOXEY-LAYTON,8212
• Citation: 3 Utah 2d 1,277 P.2d 805
• Parties: d 1 L. E. DEWEY et al., Plaintiffs and Appellants, v.REALTY CO. et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 805

277 P.2d 805

3 Utah 2d 1

L. E. DEWEY et al., Plaintiffs and Appellants, v. DOXEY-LAYTON REALTY CO. et al., Defendants and Respondents.

No. 8212.

Supreme Court of Utah.

Dec. 20, 1954.

Richards, Bird & Bushnell, Salt Lake City, for appellants.

Harold N. Wilkinson, Wayne Christ-offersen, Salt Lake City, for respondents.

McDONOUGH, Chief Justice.

From judgment entered pursuant to an order sustaining defendants' motion to dismiss the amended complaint, plaintiffs appeal, contending that, as property owners, they have a right to initiate a residential rezoning ordinance and that, pending a vote on the matter, they are entitled to an injunction to prevent the building of business property and/or a judicial declaration that no vested rights will be acquired by present builders should the initiative petition be successful.

According to the complaint, property in the area of Foothill Drive between 13th South and 17th South in Salt Lake City was purchased by present owners prior to any zoning and at a time when it was a part of Salt Lake County. In 1950, it was zoned by the County as 'Residential B-3,' which classification permits retail commercial development. In 1951, it was annexed to Salt Lake City. In 1952, plaintiffs filed a petition with Salt Lake City to rezone this land 'Residential A' and a public hearing thereon was held March 19, 1953. The petition was denied by the City Commission on August 4, 1953; whereupon plaintiffs began circulating their initiative petition and gave notice to defendant Doxey-Layton Company, owner of property projected for business development, that the petition was being circulated and would be filed by the month of October. The petition was complete with more than the required number of signatures on September 30, 1953, and was filed with the Salt Lake City Recorder. On October 6, 1953, defendant Doxey-Layton Company filed application for a building permit to erect a service station in that area and on October 8, the permit was granted by the municipal defendants.

The power to initiate legislation was reserved to the people of the State and to the people of any legal subdivision of the State by an amendment to the Constitution of Utah in 1900, Article VI, Section 1, which provides as far as is here pertinent:

'The Legislative power of the State shall be vested:

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'2. In the people of the State of Utah, as hereinafter stated:

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'[Paragraph 2] The legal voters or such fractional part thereof as may be provided by law, of any legal subdivision of the State, under such conditions and in such manner and within such time as may be provided by law, may initiate any desired legislation and cause the same to be submitted to a vote of the people of said legal subdivision for approval or rejection, or may require any law or ordinance passed by the law making body of said legal subdivision to be submitted to the voters thereof before such law or ordinance shall take effect.'

U.C.A.1953, 20-11-22 and 20-11-23 set forth the manner of exercising the initiative privilege and plaintiffs contend that upon compliance with these provisions, they may initiate any ordinance which is properly legislative rather than administrative, Keigley v. Bench, 97 Utah 69, 89 P.2d 480, 122 A.L.R. 756, and that zoning is a legislative function, Walton v. Tracy Loan & Trust Co., 97 Utah 249, 92 P.2d 724. However, a survey of the cases involving initiative and referendum petitions indicates that the line drawn between administrative and legislative functions is not the only limitation recognized by the courts as to the applicability of direct legislation to particular ordinances.

In State ex rel. Keefe v. City of St. Petersburg, 106 Fla. 756, 145 So. 175, it was held that the deferendum provisions were not intended to apply to appropriation ordinances required by state law, for the reason that to hold otherwise would make operation under the budgetary system, provided for by the charter, impossible and because matters of financial management were peculiarly within the special knowledge of responsible city officials. Other appropriations and tax levying ordinances have been held to be outside the operation of referendum provisions in Denman v. Quin, Tex.Civ.App., 116 S.W.2d 783, (tax levying under state law provision held to be merely administrative; also, the technical nature of the subject matter precluded operation of the referendum), Burkett v. Youngs, 135 Me. 459, 199 A. 619 (assessment of taxes was held not to be subject to referendum as being a matter of concern affecting the state as a whole and not solely municipal in character) and Swain v. Fritchman, 21 Idaho 783, 125 P. 319 (the fact that the statute provided that tax levy ordinances were to take effect immediately indicated that such ordinances were intended by the legislature to be excluded from the provisions of the referendum).

Of course, an ordinance proposed by the electors of a city under the initiative law must constitute such legislation as the legislative body of the city has the power to enact under the law defining the powers of such body. In Baum v. City of St. Louis, 343 Mo. 738, 123 S.W.2d 48, it was held that ordinances initiated by petition regarding the acquisition of a municipal transportation system were not within the powers of the legislative body inasmuch as the charter prohibited the adoption of ordinances pertaining to public works or improvements unless they were prepared and recommended by the board of public service. It has likewise been held that ordinances granting franchises are not subject to initiative where the power was granted to the legislative body of the city to be exercised exclusively by it. Lindsley v. Dallas Consol. Street R. Co., Tex.Civ.App., 200 S.W. 207; Newsom v. Board of Sup'rs of Contra Costa County, 205 Cal. 262, 270 P. 676.

Where an amendment to the city charter provided for the reservation in the people of the city of the powers of initiative and referendum as to any matter within the realm of municipal affairs, and a concurrent amendment adopted at the same time gave to the city council the power to license, tax, and regulate the selling of liquor, the power to grant licenses was held not to be subject to the referendum provision because such power was exclusively vested in the council. Hartig v. City of Seattle, 53 Wash. 432, 102 P. 408.

Where the power to regulate utility rates is given to the municipality by general law or charter provision setting out the procedure to be followed and providing for notice and hearings to the persons affected by such regulation, ordinances dealing with the fixing of rates are generally held to be outside the operation of initiative and referendum laws. In Southwestern Tel. & Tel. Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321, 322, the court held that the phrase 'any proposed ordinance', contained in the provision setting out the procedure for the application of the initiative power, did not include all ordinances upon any subject of legislation and that an initiated ordinance fixing maximum telephone rates was invalid since the city charter gave the legislative body of the city the power to regulate utility rates only after notice and fair hearings to the person affected. To the same effect are Dallas R. Co. v. Geller, 114 Tex. 484, 271 S.W. 1106 and City of Dallas v. Dallas Consol. Electric Street R. Co., Tex.Civ.App., 159 S.W. 76.

In Dallas City v. Steingraber, 321 Ill. 318, 151 N.E. 888, it was held that an ordinance relating to installation of sewers was not within the referendum statute on the basis that an application of referendum would destroy the usefulness of the Local Improvement Act. Also in accord are Chase v. Kalber, 28 Cal.App. 561, 153 P. 397 and City of Globe v. Willis, 16...