Patterick v. Carbon Water Conservancy Dist.

• Decision Date: 26 January 1944
• Docket Number: 6638
• Court: Utah Supreme Court
• Parties: PATTERICK v. CARBON WATER CONSERVANCY DIST. et al

145 P.2d 503

106 Utah 55

PATTERICK v. CARBON WATER CONSERVANCY DIST. et al

No. 6638

Supreme Court of Utah

January 26, 1944

Original proceeding in the Supreme Court by G. H. Patterick Jr., against Carbon Water Conservancy District and others for writ of prohibition to restrain defendants from making and executing contracts for repayment of costs for reconstruction of the Scofield Reservoir Dam in Carbon County, Utah, from calling a special election for that purpose, and from doing anything further in connection with such dam.

Writ denied and alternative writ of prohibition previously issued recalled.

Frank B. Hanson, of Price, for plaintiff.

Therald N. Jensen, of Price, for defendants.

WADE Justice. LARSON and McDONOUGH, JJ., WOLFE, chief Justice concurring. MOFFAT, Justice, dissenting in part and concurring in part.

OPINION

WADE, Justice.

This is an original proceeding in this court seeking a writ of prohibition against defendants to restrain them from making and executing contracts for the repayment of costs for the reconstruction of the Scofield Reservoir Dam in Carbon County, Utah; from calling a special election for that purpose and from doing anything further in connection with said Scofield Reservoir Dam.

The State Legislature in 1941 passed an act entitled "Water Conservatory Act" which is Chapter 99 of the Session Laws of Utah 1941, and in U. C. A. 1943 is Title 100, Chapter 11. This act provides for the organization of water conservancy districts and defines the purposes and powers thereof. The respondent, Carbon Water Conservancy District, was organized pursuant to this act. Plaintiff admits that all the steps leading to its organization were in conformity with the provisions of this act but attacks the legality of the district on the ground that the act authorizing its organization is unconstitutional.

Plaintiff cites numerous grounds wherein he contends the Constitution has been violated. For the sake of brevity wherever possible we shall consolidate these grounds, and will set out in the opinion only so much of the act and the constitutional provisions as we deem necessary to a decision of the questions involved herein.

It is well established that a court will uphold the validity of an act passed by the legislature wherever possible and will not declare it unconstitutional unless its invalidity is apparent. People v. Letford, 102 Colo. 284, 79 P.2d 274; Miami County v. City of Dayton, 92 Ohio St. 215, 110 N.E. 726; Lehi City v. Meiling, 87 Utah 237, 48 P.2d 530. With this principle in mind we shall proceed to examine plaintiff's objections to the act.

The Utah Water Conservancy Act is patterned after the Colorado Water Conservancy Act which embodies many provisions of the Ohio Water Conservancy Act which it found could be applicable to conditions in western states. New Mexico used many of the provisions of both the Colorado and Ohio Water Conservancy Acts in its Water Conservancy Act. Ohio, Colorado and New Mexico have had occasion to test the constitutionality of their respective Water Conservancy Acts and in all instances they have been upheld by the courts of last resort in those states. Because many of the questions presented in those cases are presented in the instant case we shall have occasion to refer to them frequently.

Plaintiff contends that Sec. 100-11-7, U. C. A. 1943, which precludes an appeal from the order of the court denying or establishing a District and Sec. 100-11-29 and 30, U. C. A. 1943, which fail to provide for an appeal from the order of the District Board violate Sec. 9, Art. 8 of the Utah Constitution which provides that:

"From all final judgments of the district courts, there shall be a right of appeal to the Supreme Court."

Sec. 100-11-7, U. C. A. 1943, provides that:

"At any time after the filing of a petition for the organization of a conservancy district, and not less than thirty days prior to the time fixed by the order of court for the hearing upon said petition, and not thereafter, a petition may be filed in the office of the clerk of the court wherein the proceeding for the creation of said district is pending, signed by not fewer than twenty per cent of the owners of the irrigated lands in said proposed district, but not embraced within the incorporated limits of a city or town, who have not signed the petition for creating such district, the aggregate assessed value of which, together with improvements, is not less than twenty-five thousand dollars, and also signed by not fewer than five per cent of owners of non-irrigated lands or lands embraced in the incorporated limits of a city or town, all situated in the proposed district who have not signed the petition for creating such district, the aggregate assessed value of which, together with improvements, is not less than ten thousand dollars, protesting the creation of said district.

"If the court shall find from the evidence that said protesting petition is signed by the requisite numbers of owners of lands, and of the requisite values, the court shall forthwith dismiss the original petition praying for the creation of the district.

"Any owner of real property in said proposed district not having individually signed a petition for the organization of a conservancy district, and desiring to object to the organization and incorporation of said district, may on or before the date set for the cause to be heard, file objection to the organization and incorporation of the district.

"Such objection shall be limited to a denial of the statements in the petition and shall be heard by the court as an advanced case without unnecessary delay.

"Upon the said hearing, if it shall appear that a petition for the organization of a water conservancy district has been signed and presented, as hereinabove provided, in conformity with this act, and that the allegations of the petition are true, and that no protesting petition has been filed, or if filed has been dismissed as hereinabove provided, the court shall, by order duly entered of record, adjudicate all questions of jurisdiction, declare the district organized and give it a corporate name, by which in all proceedings it shall thereafter be known, and thereupon the district shall be a political subdivision of the state of Utah, and a body corporate with all powers of a public or municipal corporation.

"If the court finds that no petition has been signed and presented in conformity with this act, or that the material facts are not as set forth in the petition filed, it shall dismiss said proceedings and adjudge the costs against the signers of the petition in such proportion as it shall deem just and equitable. No appeal or writ of error shall lie from an order dismissing said proceedings; but nothing herein shall be construed to prevent the filing of a subsequent petition or petitions for similar improvements or for a similar water conservancy district.

"If an order be entered establishing the district, such order shall be deemed final and no appeal or writ of error shall lie therefrom, and the entry of such order shall finally and conclusively establish the regular organization of the said district against all persons except the state of Utah, in an action in the nature of a writ of quo warranto."

The statements in the petition to organize a district referred to above and on which the court is required to make findings are set forth in Sec. 100-11-4, U. C. A. 1943. They are:

"(1) The proposed name of said district.

"(2) That property within the proposed district shall be benefited by the accomplishment of the purposes enumerated in Section 3 of this act. [Conserving, developing and stabilizing supplies of water for domestic, irrigation, power, manufacturing and other beneficial uses.]

"(3) A general description of the purpose of the contemplated improvement and of the territory to be included in the proposed district. Said description need not be given by metes and bounds or by legal subdivisions, but it shall be sufficient to enable a property owner to ascertain whether his property is within the territory proposed to be organized as a district. Said territory need not be contiguous, provided it is so situated that the organization of a single district of the territory described is calculated to promote one or more of the purposes enumerated in Section 3 of this act.

"(4) The assessed value of all irrigated land within the boundaries of the proposed district.

"(5) A general designation of divisions of the district and the number of directors of the district proposed for each subdivision.

"(6) Said petition shall pray for the organization of the district by the name proposed."

It is apparent from the above that the act contemplates a determination by the court of the essential elements of the petition for organization of the district and if a protest is filed it contemplates the adjudication of controversial issues between adverse parties. The court must hear evidence and determine the facts and from those facts either allow or dismiss the petition asking the creation of the district. The act provides that the order of the court allowing or dismissing the petition shall be final. Once the court has acted either allowing or dismissing the petition the right of the parties have been determined as to the issues involved. As has been said by this court in Lukich v. Utah Construction Co., 46 Utah 317, 150 P. 298, "A judgment is the final determination of the rights of the parties." Since the act itself declares that if an order is entered establishing the district "such order shall be deemed final," the order entered by the court is a final judgment, and insofar as the act attempts to abrogate the right of appeal from such a...