Keigley v. Bench

• Decision Date: 30 December 1936
• Docket Number: 5838
• Citation: 63 P.2d 262,90 Utah 569
• Court: Utah Supreme Court
• Parties: KEIGLEY et al. v. BENCH, City Recorder

63 P.2d 262

90 Utah 569

KEIGLEY et al. v. BENCH, City Recorder

No. 5838

Supreme Court of Utah

December 30, 1936

Original mandamus proceedings by C. T. Keigley and others against I. G. Bench, City Recorder of Provo City, Utah.

APPLICATION FOR WRIT OF MANDAMUS DENIED, and petition dismissed.

Geo. W Worthen, of Provo, for plaintiffs.

Brockbank & Pope, of Provo, for defendant.

ELIAS HANSEN, Chief Justice. FOLLAND, EPHRAIM HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

ELIAS HANSEN, Chief Justice.

Plaintiffs, sponsors of the referendum petition, seek a writ of mandamus in this court directing I. G. Bench, the city recorder of Provo City, Utah, to receive and file a petition for a referendum as provided by R. S. Utah 1933, title 25, chap. 10 (25-10-1 et seq.) Application for the writ was made to this court pursuant to section 16 of that act (25-10-16). Upon the filing of plaintiffs' verified petition, an alternative writ of mandamus was issued directing the defendant to accept and file a petition for a referendum or show cause why he had not done so. Defendant appeared, filed a general demurrer and an answer to the petition. Thereafter the parties executed and filed a written stipulation setting forth the facts deemed material to this controversy. A summary of the facts so stipulated are: On May 22, 1936, the board of commissioners of Provo City, Utah, passed a resolution accepting an offer theretofore made by Nuveen & Co., bond brokers of Chicago, Ill., to purchase $ 800,000 of revenue bonds of Provo City. The offer so accepted, so it is recited in the resolution, is as follows:

"We will pay par and accrued interest to date of delivery to us, for Eight Hundred Thousand Dollars ($ 800,000.00) par value, of four and One-half per cent (41/2) Bonds, proposed to be issued by the City of Provo, Utah, for the purpose of acquiring or constructing an Electric Lighting and Power System for said City, said bonds to mature serially in from three to twenty-five years after their date, the interest to be payable semi-annually at the office of the Treasurer of the City of Provo or at some bank in the City of New York.

"The said bonds are to be self-liquidating or revenue bonds, and are to be paid exclusively out of and secured solely by the net revenues or income derived from the operation of the said Electric System.

"It is understood and agreed that you will take the necessary steps and pass the necessary ordinances required to render these bonds legal to the satisfaction of our Attorney.

"It is further understood and agreed that in case you find that it is to the best interest of the City of Provo to purchase or construct a distribution system only, and to purchase electric current at wholesale prices and distribute the same to your subscribers, we agree and will permit you to reduce the above mentioned amount of bonds accordingly, and will buy the small amount on the same terms and conditions as herein set forth.

"As time is the essence of this proposal, no unnecessary delay in deciding the point as to whether you will construct the power plant or purchase and construct the distribution system only and buy current at wholesale can be permitted because the amount of the issue must be definitely known prior to the offering of any of the bonds by us.

"It is mutually agreed and understood that your acceptance of the above proposal by Resolution, will constitute a contract for the purchase and sale of the bonds above described, on the terms and conditions herein set forth."

The resolution directed the mayor of the city to execute an acceptance of the offer for and on behalf of Provo City, Utah. After the resolution was passed and pursuant thereto, the mayor did execute an acceptance of the offer as directed. On May 27, 1936, an application for petition copies for a petition for the referendum of the foregoing resolution was filed with defendant I. G. Bench, who thereafter furnished to the sponsors petition copies for the circulation of the petition for referendum. The petition copies were circulated, and a sufficient number of legal voters of Provo City, Utah, signed the same to require a referendum election. There is no controversy as to the sufficiency of the application for petition copies or the circulation sheets. The required signatures were duly counted and checked against the official list of registered voters by the county clerk of Utah county, Utah. Within thirty days after the passage of the resolution, the petition for referendum was duly tendered to the defendant at his office and by him refused. On June 24, 1936, the petition for a writ of mandamus was filed in this court, and an alternative writ issued requiring defendant to file the petition for referendum or show cause on July 15, 1936, why he had not done so. The defendant was personally served with the writ on June 25, 1936. On July 6, 1936, the petition for referendum was again tendered defendant, and he again refused to accept or file the same. On July 13, 1936, the commissioners of Provo City, Utah, passed a resolution whereby the acceptance of the offer of Nuveen & Co. was rescinded and the resolution passed on May 22, 1936, accepting the offer of Nuveen & Co. was "repealed, rescinded and held for naught." While the parties to this litigation have agreed upon the facts thus summarized, they divide as to the law applicable thereto. Plaintiffs contend that the resolution of May 22, 1936, accepting the offer of Nuveen & Co. to purchase $ 800,000 of revenue bonds of the city, is a legislative act within the meaning of R. S. Utah 1933, title 25, chap. 10, and as such the electors of the city may, in a referendum election, either approve or reject the same. Defendant contends to the contrary. Defendant further contends that in any event this has become a moot case because of the resolution of July 13, 1936, repealing the resolution of May 22, 1936, and therefore this proceeding should be dismissed. Plaintiffs contend that the duty of defendant to file a petition for a referendum continues notwithstanding the former resolution was repealed by the latter. Plaintiffs also contend that they should be awarded their costs expended in this proceeding notwithstanding it be determined that this has become a moot case. Defendant contends that he, being a public officer and having acted in good faith, should not be required to pay costs. We shall dispose of the questions presented in the order in which they are stated.

R. S. Utah 1933, 25-10-21, provides:

"Subject to the provisions of this chapter, legal voters of any city or town, in such numbers as herein required, may initiate any desired legislation and cause the same to be submitted to the law-making body, or to a vote of the people of such city or town for approval or rejection, or may require any law or ordinance passed by the law-making body of such city or town to be submitted to the voters thereof before such law or ordinance shall take effect."

R. S. Utah 1933, 25-10-24, provides:

"Referendum petitions against any ordinance, franchise or resolution passed by the governing body of a city or town shall be filed with the clerk or recorder within thirty days after the passage of such ordinance, resolution or franchise."

It will be observed that section 21 of the act limits the applicability of a referendum to laws and ordinances passed by the lawmaking body of a city or town, while section 24 thereof indicates that it applies to an ordinance, resolution, or franchise. We, however, do not regard the apparent discrepancy as of any substantial importance. The difficulty in drawing a line of demarkation between a resolution and an ordinance is not confined to the Legislature--the courts have frequently been confronted with a similar difficulty. The authorities, however, are agreed that it is not the form but the substance of the municipal action which marks the distinction between an ordinance and a resolution. Thus it has been said that a "resolution" is such an order of the council as is ministerial or temporary in character, while an "ordinance" prescribes a permanent rule of conduct of government. 2 Dillon, Municipal Corporations (2d Ed.) § 563, p. 523. Touching the distinction as applied to legislative referendum, the learned authority of 1 McQuillan, Municipal Corps, (2d Ed.) § 366, p. 907, has this to say:

"Both legislative and executive powers are possessed by municipal corporations. The distinction between these powers is considered important in matters involving the use of the referendum. Executive powers are often vested in the council or legislative body and exercised by motion,...