Ponderosa One Ltd. Partnership v. Salt Lake City Suburban Sanitary Dist.

Decision Date04 June 1987
Docket NumberNo. 860448,860448
Citation738 P.2d 635
PartiesPONDEROSA ONE LIMITED PARTNERSHIP, a Utah limited partnership, Plaintiff and Appellant, v. SALT LAKE CITY SUBURBAN SANITARY DISTRICT, Defendant and Respondent.
CourtUtah Supreme Court

Jerrold Jensen, Salt Lake City, for plaintiff and appellant.

David Wahlquist, Salt Lake City, for defendant and respondent.


Plaintiff Ponderosa One Limited Partnership (Ponderosa) appeals from a summary judgment barring its action as untimely. We reverse and remand for a trial on the merits.

Ponderosa is engaged in the construction business. In December of 1984, it paid to defendant Salt Lake City Suburban Sanitary District (the District), the sewer connection fee on an apartment complex that was then under construction. The District is an improvement district established under Utah Code Ann. § 17-6-1 (1987). In May of 1985, it billed Ponderosa for sewer services in the amount of $2,800 for the period from May 1, 1985, through August 31, 1985. Ponderosa paid that amount under protest on June 24, as the apartment complex had not been completed and was still unoccupied. Ponderosa's complaint for the recovery of the service charges was filed on March 2, 1986. The District filed its motion for summary judgment, claiming that the action was barred by the six-month statute of limitations contained in Utah Code Ann. § 78-12-31(2) (1977). The judgment was granted.

On appeal, Ponderosa assails the trial court's application of the six-month statute of limitations to its claim as improper. It contends that sewer service charges are not a tax but a charge for services rendered. The District contends that Ponderosa's payment under protest was governed by Utah Code Ann. § 59-11-11 (1986). That section, claims the District, applies not only to taxes, but also to "other demands for public revenue" paid under protest. Consequently, actions to recover "demands for public revenue" paid under protest, according to the District, are barred unless brought within six months in accordance with section 78-12-31(2).

The only issue before this Court is whether the payment of sewer service charges is the payment of a tax which, if paid under protest, must be tested in a judicial proceeding within six months of payment.

Utah Code Ann. § 59-11-11 (1986) reads as follows:

In all cases of levy of taxes, licenses, or other demands for public revenue which is deemed unlawful by the party whose property is thus taxed, or from whom such tax or license is demanded or enforced, such party may pay under protest such tax or license, or any part thereof deemed unlawful, to the officers designated and authorized by law to collect the same; and thereupon the party so paying or his legal representative may bring an action in the tax division of the appropriate district court 1 against the officer to whom said tax or license was paid, or against the state, county, municipality or other taxing unit on whose behalf the same was collected, to recover said tax or license or any portion thereof paid under protest.

(Emphasis added.)

Actions against a tax collector to whom money was paid under protest must be brought within six months, as set out in Utah Code Ann. § 78-12-31(2) (1977):

For money paid to any such officer under protest, or seized by such officer in his official capacity, as a collector of taxes, and which, it is claimed, ought to be refunded.

(Emphasis added.)

Prefatory to our discussion of the just-cited statutes, we affirm our continued adherence to well-established canons of statutory construction. Under the maxims of noscitur a sociis (it is known from its associates) and ejusdem generis (of the same class), the phrase "other demands for public revenue" contained in section 59-11-11 is in one class with the words "taxes and licenses" and takes its coloring from them. The former maxim implies that "when two or more words are grouped together, and ordinarily have a similar meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word." Under the latter, "[w]here general words are subjoined to specific words, the general word will not include any object of a class superior to that designated by the specific words." Hansen v. Wilkinson, 658 P.2d 1216 (Utah 1983) (citing 2A C. Sands, Sutherland Statutory Construction § 47.16, et seq. (4th ed. 1973) (emphasis in original)). Under the maxim of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), the term "collector of taxes" contained in section 78-12-31(2) may not be expanded to include collectors of dues, fees, and service charges in general. Cf. Anderson v. Board of Review, 737 P.2d 211 (Utah 1987). Under this last maxim, "[i]t probably is not wholly inaccurate to suppose that ordinarily when people say one thing they do not mean something else." Hansen, at 1217.

With those limitations in mind, we now examine the nature of the sewer service charges Ponderosa paid under protest, in order to determine whether that payment was a tax and therefore subject to section 78-12-31(2). "Sewer charges and fees are not taxes or special assessments, but are in the nature of tolls or rents paid for services furnished or available." 11 E. McQuillin, Municipal Corporations § 31.30a (3rd revised edition 1983). See also Jennings v. Walsh, 214 Kan. 398, 521 P.2d 311 (1974). In Home Builders Association of Greater Salt Lake v. Provo City, 28 Utah 2d 402, 503 P.2d 451 (1972), and Murray City v. Board of Education, 16 Utah 2d 115, 396 P.2d 628 (1964), this Court denied the characterization of a sewer charge and a connection charge as a revenue measure and stated that such charges are neither taxes nor assessments but payments for services furnished. Home Builders Association, 503 P.2d at 452. That characterization is echoed in City of Stanfield v. Burnett, 222 Or. 427, 353 P.2d 242 (1960), overruled on other grounds, Aloha Sanitary Dist. v. Wilkens, 245 Or. 40, 420 P.2d 74, 77 (1966), where property owners not hooked up to a sewer system had challenged the city's imposition of a fee and where the court found that "a charge for the use of a sewer is not a tax or assessment, but a charge for a service rendered and is based on contract." Cf. Loup-Miller Construction Co. v. City and County of Denver, 676 P.2d 1170 (Colo.1984); Apodaca v. Wilson, 86 N.M. 516, 525 P.2d 876 (1974); State v. Bartos, 102 Ariz. 15, 423 P.2d 713 (1967).

We therefore hold that section 78-12-31(2) was improperly applied by the trial court, as the money Ponderosa paid under protest was not paid to...

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  • Walker v. Brigham City
    • United States
    • Utah Supreme Court
    • June 24, 1993
    ...Code Ann. § 55-3-1 authorizes Brigham City to own and operate an electric utility plant.6 See Ponderosa One Limited Partnership v. Salt Lake City Suburban Sanitary Dist., 738 P.2d 635 (Utah 1987); Consolidation Coal Co. v. Emery County, 702 P.2d 121 (Utah 1985); Mountain States Tel. & Tel. ......
  • Highlands at Jordanelle, LLC v. Wasatch Cnty.
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    ...and that the trial court correctly applied a four-year statute of limitations. See Ponderosa One Ltd. P'ship v. Salt Lake City Suburban Sanitary Dist., 738 P.2d 635, 637–38 (Utah 1987) (per curiam) (determining that a sewer service charge was a service fee, not a tax or assessment, and ther......
  • Board of Educ. v. Sandy City Corp.
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    • May 4, 2004
    ...in value to the land itself. 16 Utah 2d 115, 396 P.2d 628, 630 (1964) (citation omitted). Similarly, in Ponderosa One Limited Partnership v. Salt Lake City Suburban Sanitary District, we held that charges for use of a sewer system were service charges, not taxes or assessments, because they......
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    ...of regulating and policing a business or activity engaged in by the one paying the fee. Id.; see also Ponderosa One v. Salt Lake City Suburban Sanitary Dist., 738 P.2d 635, 636 (Utah 1987); Utah Restaurant Ass'n v. Davis County Bd. of Health, 709 P.2d 1159, 1164 (Utah 1985); Consolidation C......

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