In re Fullmer

• Decision Date: 23 November 1907
• Docket Number: 1830
• Citation: 33 Utah 43,92 P. 768
• Court: Utah Supreme Court
• Parties: In re FULLMER et al

92 P. 768

33 Utah 43

In re FULLMER et al

No. 1830

Supreme Court of Utah

November 23, 1907

APPEAL from District Court, Utah County; J. E. Booth, Judge.

Application of Don C. Fullmer and others, real property owners of the town of Mapleton, to restrict its corporate limits. From a decree of severance, the town appeals.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

A Saxey for appellant.

W. E Rydalch, A. L. Booth, and E. E. Corfman for respondents.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This proceeding was commenced in the district court of Utah county to sever certain territory from the town of Mapleton, an incorporated town in said Utah county. The proceeding is based upon section 288 et seq., Rev. St. 1898, which, so far as material, provides as follows: "Whenever a majority of the real property owners of any territory within and lying upon the borders of any city, shall file with the clerk of the district court of the county in which said territory lies, a petition praying that such territory be disconnected therefrom, and such petition sets forth reasons why such territory should be disconnected from such city, and is accompanied with a map or plat of the territory sought to be disconnected . . . such court shall cause a notice of the filing of the same to be served upon the city . . . and shall also cause notice to be published in some newspaper having a general circulation in such city . . . Issue shall be joined and the cause tried as provided for the trial of civil causes, as nearly as may be. The proper authorities of such city or any person interested in the subject matter of said petition, may appear and contest the granting of the same." The following section (289) provides: "If the court finds that the petition was signed by a majority of the real property owners of the territory concerned, and that the allegations of the petition are true, and that justice and equity require that such territory or any part thereof should be disconnected from such city, it shall appoint three disinterested persons as commissioners to adjust the terms upon which such part shall be so severed as to any liabilities of such city that have accrued during the connection of such part with the corporation, and as to the mutual property rights of the city and the territory to be detached." The remaining sections provide for the fixing of a time by the commissioners appointed for a hearing of the parties interested with respect to the matters set forth in the preceding section, and to make a report of their finding to the court. Upon the filing of such report and findings, the court shall enter a decree in accordance therewith, and in accordance with the petition, unless for good cause the findings of the commissioners are modified or set aside by the court. A majority of the real estate owners of certain territory sought to be disconnected from the town of Mapleton filed their petition praying for severance under the foregoing sections. The town of Mapleton appeared and answered the petition, setting forth certain objections to the granting of the same, and a hearing or trial was had upon the petition and objections to the court, which found all the facts required in the foregoing section to be found in favor of the petitioners, and further found, without the consent of the town of Mapleton, that there were no equities to adjust between the territory sought to be detached and the town of Mapleton, and that no commissioners were necessary, and upon such findings entered a decree severing the territory described therein from said town of Mapleton. The town of Mapleton excepted to the findings and decree, and presents the record to this court for review. While the errors assigned are somewhat numerous, we shall consider such only as are deemed necessary to the disposition of the case.

The assignment that the court erred in its findings that the allegations of the petition are true, and that justice and equity require a severance of the territory from the town of Mapleton, cannot be sustained. These findings are amply supported by the evidence, and it is quite clear that all of the territory sought to be detached consists of agricultural land, and receives no direct or appreciable benefit from being within the corporate limits of the town of Mapleton.

The next error discussed is that sections 288 and 289 are unconstitutional, in that matters purely legislative are thereby conferred upon the courts. It must be conceded that there is much force to the argument of counsel for the town of Mapleton, that the creation, the fixing of boundaries, the disincorporation or division of municipal corporations are all matters that are vested in the legislative department and therefore cannot be delegated to the courts. While this is true, as a general proposition, the Legislature may nevertheless pass laws by which it may determine and fix the causes,...