Salt Lake City v. Board of Education of Salt Lake City

• Decision Date: 09 October 1918
• Docket Number: 3269
• Citation: 175 P. 654,52 Utah 540
• Court: Utah Supreme Court
• Parties: SALT LAKE CITY v. BOARD OF EDUCATION OF SALT LAKE CITY, et al

175 P. 654

52 Utah 540

SALT LAKE CITY v. BOARD OF EDUCATION OF SALT LAKE CITY, et al

No. 3269

Supreme Court of Utah

October 9, 1918

Appeal from the District Court of Salt Lake County, Third District Hon. P. C. Evans, Judge.

Action by Salt Lake City against the Board of Education of Salt Lake City, and John E. Anderson and another, a copartnership.

Judgment for plaintiff. Defendants appeal.

REVERSED and remanded.

Cheney Jensen & Holman for appellants.

W. H Folland, City Atty., and H. H. Smith and W. W. Little, Asst. City Attys. for respondent.

FRICK, C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

Salt Lake City, a city of the first class, hereinafter called respondent, commenced this action in the district court of Salt Lake County to enjoin the board of education of Salt Lake City, John Anderson, and Charles L. Carlen, hereinafter styled appellants, "from proceedings further in the construction" of a certain school building until the ordinances hereinafter referred to shall have been complied with.

The respondent in its complaint, after alleging the necessary matters of inducement, and after setting forth those portions of the city ordinances which it was alleged were being violated by the appellants, sets forth its cause of action in the following words:

"That on or about the 1st day of June, 1913, the defendant board of education of Salt Lake City made and entered into a contract with the said John E. Anderson and Charles L. Carlen for the erection of a three-story nine-room annex to the Sumner school building in Salt Lake City, Utah and as plaintiff is informed and believes, and therefore alleges, said contract was made in disregard of the said building code of Salt Lake City, and was made by said board of education with full knowledge that the specifications for said annex to said school building were not in conformity with said building code, and particularly with sections 275 and 280 thereof, which sections were thereafter violated by said board of education, its officers and agents, in proceeding with the erection of said three-story annex to said Sumner school of Class C, or nonfireproof material, instead of Class A or Class B, or fireproof construction, as required by said sections, which are hereto attached, marked Exhibits A and B, and made a part of this complaint.

"That notwithstanding the provisions of section 258 of said ordinance requiring the taking out of a permit from the building inspector of Salt Lake City, neither said board of education nor said contractors have secured a permit for the construction of said school building, as required by said ordinances, but have proceeded with and are now engaged in the construction of said nonfireproof building, and will continue and complete the construction of said building under said contract unless restrained by this court, without taking out a permit as required by said section, which section is as follows:

"'Sec. 258. Permits.--No work except minor repairs shall be done upon any structure, building or shed in the city of Salt Lake without a permit from the inspector of buildings.'

"That plaintiff believes, and therefore alleges, that the failure of said contractors to secure said permit is due to the refusal of the said board of education to recognize the power of said plaintiff to make and enforce said building regulations, and the claim by said board that such building regulations are inapplicable to said school building or to any school building erected under the authority of said board.

"That notwithstanding the provisions of section 435 of said ordinance requiring the placing of fire alarms or telephones in all school buildings in Salt Lake City, the said board of education has made no provision for the placing of a fire alarm or telephone either in said annex or in the existing Sumner school building in compliance with said ordinance, but has refused to do so, and as plaintiff is informed and believes, and therefore alleges, said board of education will continue to refuse to comply with said ordinance unless required to do so by an order of court. Said section 435 is hereunto attached, marked Exhibit C, and made a part of this complaint."

The appellant interposed a general demurrer to the complaint which was overruled. They elected to stand upon their demurrer, and judgment was duly entered enjoining them--

"from proceeding further in the construction of the three-story annex to the Sumner school building in Salt Lake City, Utah until the said defendants, their employees, servants, and agents, have complied with the ordinance of Salt Lake City in respect to requiring the securing of a permit for the construction of said building from the building inspector of Salt Lake City, and requiring the installation of fire alarms or telephones in said school building, and requiring the construction of said building of fireproof material in compliance with the ordinances of said city, or until the further order of this court."

To reverse the judgment appellants prosecute this appeal and insist that the court erred in overruling the demurrer.

The ordinances referred to classify the buildings and prescribe the character of the material that shall be used in the construction of each class, and also provide how the building shall be constructed with respect to entrances and exits, etc. In short, the ordinances constitute a complete building code.

The ordinances in question here are based on Comp. Laws 1907, section 206, and more particularly on subdivisions 55 and 56 of that section. Subdivision 55 provides that the city commission shall have power--

"to define the fire limits, and prescribe limits within which no building shall be constructed except of brick, stone, or other incombustible material, without permission, and to cause the destruction or removal of any building constructed or repaired in violation of any ordinance, and to cause all buildings and inclosures which may be in a dangerous state to be put in a safe condition or removed."

Subdivision 56 provides that the city commission shall have power--

"to prescribe the manner of constructing stone, brick, and other buildings, and the construction of fire escapes; and to cause all buildings used for public purposes to be provided with sufficient and ample means of exit and entrance, and to be supplied with necessary and appropriate appliances for the extinguishment of fire, to prevent the overcrowding thereof, and to regulate the placing and use of seats, chairs, benches, scenery, curtains, blinds, screens, or other appliances therein."

The ordinance respecting fire limits, which is referred to in the complaint, among other things, provides:

"There shall be a fire alarm or telephone directly connected with the fire department in all theatres, moving picture buildings, school-houses," etc.

The contention of appellants' counsel can perhaps be best stated in their own language as contained in their printed brief. They say:

"The question for decision is as to whether the plaintiff city, acting in pursuance of the police powers conferred upon it by general law, may impose building restrictions or regulations upon the defendant board of education in the erection of school buildings. The reasonableness of such regulations is not questioned, but the defendants contend that the school board is exempt, inasmuch as it is created by an act of the Legislature as an independent board, whose powers are co-ordinate with those of the city commission. It is not contended that the defendant school board has any measure whatsoever of police power, but, on the other hand, that the police power extending over school property still resides in the state, and that the general grant of police powers to the plaintiff does not extend to school buildings, but only to private property. It is likewise conceded that there is no express provision of the statute exempting the defendant board from the police power granted to the city, but that it is to be gathered from the general statutes of the state conferring certain police powers upon that board."

Upon the other hand, counsel for respondent contend that by the several statutory provisions we have quoted plenary power is conferred on cities with respect to regulating the construction of all public buildings within those limits, which includes all school buildings. In support of their contention counsel cite and rely on the case of Pasadena School District v. City of Pasadena, 166 Cal. 7, 134 P. 985, 47 L. R. A. (N. S.) 892, Ann. Cas. 1915B, 1039.

While at first blush the case from California seems to sustain respondent's contention, yet, after a careful examination and consideration of the constitutional and statutory provisions of this state, we are constrained to hold that there is a substantial difference between the statutes of California on which that decision is based and those of this state. We entertain the highest respect for the decisions of the Supreme Court of California, and where a question has been squarely decided by that court we would hesitate long before refusing to follow that decision. But where, as in this case, there is a substantial difference between our statutes and those of California we must assume the responsibility of determining the result for ourselves. For the reasons hereinafter appearing we are firmly of the opinion that the Legislature of this state did not cede to the cities of this state the power to regulate the construction of the public school buildings as claimed by respondent.

Article 10 of our Constitution, entitled "Education," provides that the control of the public school system, which includes all schools of whatever kind or grade, is vested in ...