Salt Lake City Water & Electrical Power Co. v. City of Salt Lake City

• Decision Date: 11 February 1902
• Docket Number: 1326
• Citation: 67 P. 791,24 Utah 282
• Parties: SALT LAKE CITY WATER & ELECTRICAL POWER COMPANY, a Corporation, and JOSEPH GEOGHEGAN, Receiver, Respondents, v. SALT LAKE CITY, a Municipal Corporation, and ANN AMANDA CANNON, Petitioners
• Court: Utah Supreme Court

67 P. 791

24 Utah 282

SALT LAKE CITY WATER & ELECTRICAL POWER COMPANY, a Corporation, and JOSEPH GEOGHEGAN, Receiver, Respondents, v. SALT LAKE CITY, a Municipal Corporation, and ANN AMANDA CANNON, Petitioners

No. 1326

Supreme Court of Utah

February 11, 1902

Original petition for a writ of certiorari by Salt Lake City against the Salt Lake City Water & Electrical Power Company to review the proceedings of the Third District Court, Hon C. W. Morse, Judge, in an action pending between respondents and petitioners.

WRIT DENIED.

Frank B. Stephens, Esq., city attorney, for petitioners; Messrs Richards & Varian of counsel.

The statute authorizing possession is unconstitutional. Section 3597 of the Revised Statutes, which is relied upon to support the action of the court below, is unconstitutional and void in so far as it authorizes the taking of possession of property upon the giving of a bond, because a bond is not compensation, nor the equivalent thereto, or to a fund providing compensation for the property so taken. The Constitution provides that: "Private property shall not be taken or damaged for public use without just compensation." Art. 1, sec. 22.

The present Constitution of California, which went into effect July 4, 1879, in terms provides that just compensation shall be first made to or paid into court for the owner, before private property shall be taken or damaged for public use. Sec. 14, art. 1. Vol. 1, American Constitutions, p. 168.

But the original Constitution of 1849, omitting the word "damaged," is word for word with that of Utah. Sec 8, art. 1. Vol. 1, Charters and Constitutions of the U.S. (Poore's Compilation), p. 195.

At an early day the Supreme Court of California gave a just and fair interpretation to the language of the Constitution, and, in a series of cases, uniformly held as contended here, with one exception. San Francisco v. Scott, 4 Cal. 114; McCann v. Sierra Co., 7 Cal. 121; McCauley v. Weller, 12 Cal. 500; Benzley v. Mountain Lake Co., 13 Cal. 306; 14 Cal. 106; 16 Cal. 153; 9 Cal. 592; 12 Cal. 76; 24 Cal. 427.

In the case of Fox v. The Western Pacific Railroad Company, 31 Cal. 538, the court held to the contrary, but in subsequent cases this case was overruled and the principles of the former cases reaffirmed; and the principles of the former cases were reaffirmed in Davis v. Railroad Co., 47 Cal. 517; Railroad v. Railroad, 47 Cal. 528; San Mateo W. Co. v. Sharpstein, 50 Cal. 285; Sanborn v. Belden, 51 Cal. 266; Vilhac v. Railroad, 53 Cal. 208.

In three of these last cases the court annulled, on certiorari, similar orders to that complained of here.

The statute does not authorize nor provide for the subjecting of this kind of property to the law of eminent domain, and the Constitution, by necessary implication, prohibits it.

A final and complete answer to the claim of the power company and the assumption of power by the court in the premises is found in the fact that this property of the city is not subject to condemnation. It is provided by the Constitution that:

"No municipal corporation shall, directly or indirectly, lease, sell, alien or dispose of any waterworks, water rights or sources of water supply now, or hereafter to be owned or controlled by it; but all such waterworks, water rights and sources of water supply now owned or hereafter to be acquired by any municipal corporation, shall be preserved, maintained and operated by it for supplying its inhabitants with water at reasonable charges; provided, that nothing herein contained shall be construed to prevent any municipal corporation from exchanging water rights or sources of water supply for other water rights or sources of water supply of equal value and to be devoted in like manner to the public supply of its inhabitants." Art. 11, sec. 6.

Restrained by this enactment, the Legislature itself has no power to authorize the disposition of any waterworks, rights, or sources of supply of the city, which is required to maintain and operate the same for supplying its inhabitants with water. The Legislature can not change the use, nor can the city, and, of course, neither can authorize or permit any surrender, in whole or in part, of the control or regulation of the property.

It is idle to say that there is no attempt here to take the property of the city. By the complaint in the action, the claim of the plaintiff is presented. It seeks to acquire a permanent right of way and easement in the city's canal. The record shows that to do this for the purpose of the power company, it will be necessary to abandon the city's dam and head-gates, together with a mile and a half or two miles of its canal, and turn over to the power company the control and regulation of the diversion and flow of the water from the river into the city's canal. If this is not an invasion of and taking of property, we are unable to conceive what would be considered so. Yet this was denied in argument in the court below. But, the city is charged, as a public trustee, with the control and management of this property. This appears sufficiently in the express language of the Constitution. But, moreover, it is undoubtedly true that water rights and easements connected necessarily therewith, held, as here, for the purpose of municipal uses, and supplying the inhabitants of the municipality with water, are of such public utility and necessity that they are held in trust for the use of the citizens. Ogden City v. Bear L. & R. W. W. Co., 16 Utah 451; Meriwether v. Garrett, 102 U.S. 513; New Orleans v. Morris, 105 U.S. 602; Smith v. Mayor of Nashville, 7 L.R.A. 469; Huron W. W. Co. v. Huron, 30 L.R.A. 844; R. S., sec. 206, pars. 15, 17, 18, 76.

The order permitting occupancy is made under section 3597, but the property which may be taken as subject to condemnation is defined and classified in section 3590. Under this section, section 3597 could only refer to private property. The opening statement of the section declares that "the private property which may be taken under this chapter includes," followed by an enumeration thereof. What does it include? First, all real property belonging to any person. Second, lands belonging to the State, or to any county or incorporated city or town, not appropriated to some public cause. Third, property appropriated to public use; provided, that such property shall not be taken unless for a more necessary public use than that to which it has already been appropriated. Fourth, franchises. Fifth, rights of way for the purposes mentioned in section 3588, with structures and improvements thereon, and lands used in connection therewith, shall be subject to be connected with, crossed or intersected by any other right of way or improvement or structure thereon. Such rights of way shall also be subject to the limited use in common with the owner thereon, when necessary.

In the above enumeration of property subject to condemnation, the property of municipal corporations, actually devoted to a public use, is not found; on the contrary, the distinction between such property and that held in a proprietary capacity is clearly made. Lands belonging to the State or to any county or incorporated city or town, not appropriated to some public use, are, by paragraph two, included in the enumeration of property which may be taken under the law. Here the Legislature makes a manifest distinction between property held by municipalities in their proprietary capacities and that which, being appropriated to a public use, is possessed in a governmental capacity. Could there have been used language more appropriate than this to indicate the legislative mind? The public use referred to here is a governmental or municipal use evidently. The word "lands," by express statutory definition, includes and means hereditaments, water rights, possessory rights and claims. Revised Statutes, sec. 2498, par. 10.

In its common and ordinary meaning it includes easements. Groggins v. Boston & A. Ry. Co., 155 Mass. 505; 30 N.E. 72.

L. R. Rogers, Esq., and Ogden Hiles, Esq., for respondents.

This application can not be allowed. The chapter of our code of civil procedure relating to certiorari was adopted, in totidem verbis from the code of California, and by repeated decisions of the Supreme Court of that State before the enactment of the statute by this State, the following interpretations and applications of it were established:

1. The writ of certiorari can not be made to do the office and functions of a writ of error. Coulter v. Stark, 7 Cal. 244; Central P. R. R. Co. v. Placer County, 46 Cal. 668; Whitney v. Board, 14 Cal. 499; People v. Dwinelle, 29 Id. 632; Will v. Sinkwitz, 39 Id. 570; People v. Burney, 29 Id. 459-460; Winter v. Fitzpatrick, 35 Id. 269; Morley v. Elkus, 37 Id. 454; People v. Elkins, 40 Id. 642; Barler v. San Francisco, 42 Id. 630; Central P. R. R. Co. v. Placer County, 43 Id. 365; Monreal v. Rues, 46 Id. 80; Hutchinson v. Superior Court, 61 Id. 119; Reynold v. County Court, 47 Id. 604; Sherer v. Superior Court, 94 Id. 354; Buckley v. Superior Court, 96 Id. 119; Sherer v. Superior Court, 96 Id. 653; History Company v. Light, 97 Id. 56.

2. The only thing which can be inquired of, is whether the court has exceeded its jurisdiction. People v. Dwinelle, 29 Cal. 632; People v. Johnson, 30 Id. 98; Sayers v. Superior Court, 84 Id. 645. And cases cited under the first paragraph.

3. When the jurisdiction of the court depends on the finding of a fact, and that fact is found by the lower court, that finding conclusively establishes the jurisdiction of that court on a proceeding in certiorari, and such finding can not be assailed on a writ of review. Farmers and Merchants' Bank v. Board of Equalization, 97 Cal. 318, 328; Sayers v. Superior Court, 84 Id....