Startup v. Harmon

• Decision Date: 03 December 1921
• Docket Number: 3715
• Citation: 203 P. 637,59 Utah 329
• Parties: STARTUP v. HARMON et al., Com'rs of Utah County
• Court: Utah Supreme Court

203 P. 637

59 Utah 329

STARTUP v. HARMON et al., Com'rs of Utah County

No. 3715

Supreme Court of Utah

December 3, 1921

Rehearing Denied January 12, 1922.

Original proceeding in mandamus by George A. Startup against Jesse Harmon and others, as County Commissioners of Utah County.

PEREMPTORY WRIT DENIED.

A. W Turner, of Provo, and E. R. Christensen and J. C. Wood, both of Salt Lake City, for plaintiff.

M. R Straw, Co. Atty., of Provo, for defendants.

THURMAN, J. WEBER, GIDEON, and FRICK, JJ., concur. CORFMAN, C. J., dissenting.

OPINION

THURMAN, J.

This is an original proceeding in mandamus praying that a peremptory writ of mandate issue, commanding the defendants, as county commissioners of Utah County, to provide annual funds, not exceeding $ 10,000 in any one year, to be expended for the partial support of widowed mothers who are dependent upon their own efforts for the maintenance of their children. Plaintiff prays for such other judgment or order as may be legal and proper.

The application for the writ is founded upon the provisions of Comp. Laws Utah 1917, § 3960, as amended in chapter 77, Sess. Laws Utah 1919, which section reads as follows:

"It shall be the duty of the county commissioners of each county in the state, and they are hereby authorized and empowered to provide, annually, funds in an amount sufficient to meet the purpose of this law, but not exceeding in any one year the sum of $ 10,000.00; provided, that in the counties containing a population of 100,000 or more the amount of such funds shall be $ 20,000.00, annually, such funds to be expended for the partial support of widowed mothers who are dependent upon their own efforts for the maintenance of their children. No part of the funds above provided for shall be expended for administration or purposes other than the partial support of widowed mothers."

The complaint, in substance, alleges that the plaintiff is a resident and taxpayer in Provo City, Utah county, state of Utah, and is the owner of both real and personal property therein; that the defendants are the duly elected, qualified, and acting county commissioners of Utah county; that said county contains a population of less than 100,000 persons; that there are residing in said county numerous widowed mothers who are dependent upon their own efforts for the maintenance of their children; that said defendants have wholly refused and neglected to provide funds to be expended for the partial support of said widowed mothers, as provided by law, notwithstanding that plaintiff has requested defendants to provide such funds. It is further alleged in the complaint that there is no other plain, speedy, or adequate remedy at law.

To this complaint the defendants filed a general demurrer and also specially demurred on several grounds, among which are the following: (1) That plaintiff has no legal capacity to sue; (2) that the complaint is indefinite and uncertain for the reason that it cannot be determined therefrom that plaintiff is a party beneficially interested in the proceeding, nor can it be determined therefrom what amount of funds should be provided, nor whether Utah county has any fund from which such provisions can be legally made. The special demurrer presents other grounds, but in the opinion of the court the grounds above mentioned are the only ones that need be considered in order to determine the questions involved.

Without waiving their demurrer, defendants at the same time also filed an answer to the complaint. Many of the issues presented by the answer are merely repetitions of the objections raised by the demurrer. In addition thereto, however, the answer, in effect, alleges that defendants, as commissioners of Utah county, have provided funds for the relief of the indigent and dependent poor of said county, and that the provision so made is adequate and sufficient to provide relief for all such persons, including widowed mothers for whose benefit relief is applied for in this proceeding. The answer further alleges that said county now has no funds from which a fund can legally be set aside for the express purpose demanded in plaintiff's complaint.

The answer presents no issuable question of fact. The questions of law to be determined are: (1) Is the duty of the county commissioners to provide a fund for the partial support of widowed mothers dependent upon their own efforts for the maintenance of their children a proper subject for mandamus proceeding? (2) Is the fact that the county commissioners have provided funds for the relief of the indigent and dependent poor of said county, including widowed mothers of the class mentioned, a valid defense against an action to compel the performance of such duty? (3) Is the fact that there are no funds available at the present time for such purpose a valid defense? (4) Is the plaintiff a proper party to bring such action? These questions will be considered in the order above stated.

1. It seems to the writer to be wholly unnecessary to multiply words in disposing of the question first above stated. The language of the statute quoted near the beginning of our statement of the case is plain, unequivocal, and unambiguous. It needs no interpretation to determine the fact that a mandatory duty is imposed upon the county commissioners to provide such funds as may be reasonably necessary to carry out the purposes of the law in accordance with its express terms and provisions. This being the case, it is a positive duty of the commissioners to provide the funds without equivocation or evasion. It is true the commissioners have the discretion to determine the amount necessary to be provided, but it is not an arbitrary discretion; it is a discretion that may be abused, and whenever abuse is properly charged the question may be reviewed even in a mandamus proceeding. 18 R. C. L. p. 126; 26 Cyc. 161, 162. In support of the contention that the statute relied on as the basis of this proceeding is mandatory in its requirement that the duty must be performed, plaintiff's counsel refers us to 36 Cyc. 1159; Mason v. Fearson, 50 U.S. 248, 9 HOW 248, 13 L.Ed. 125; Hugg v. City Council of Camden, 39 N.J.L. 620; Industrial Com. of Utah v. Daly Min. Co., 51 Utah 602, 172 P. 301. See, also, 18 R. C. L., p. 119; 26 Cyc. 157, 158.

There can be no substantial doubt that mandamus in the instant case is a proper remedy, and is the only one that is plain, speedy and adequate.

2. But it is contended by defendants that, having provided funds for the relief of the indigent and dependent poor of the country, including widowed mothers dependent upon their own efforts to maintain their children, there is no necessity for a strict compliance with the statute upon which this proceeding is founded. In assuming such position, defendants make the mistake of attempting to substitute their judgment for that of the Legislature. The statute making provision for the relief of the indigent and dependent poor (Comp. Laws Utah 1917, § 1400x46) was enacted by the Legislature as early as 1903, while the first statute for the relief of dependent widowed mothers was not enacted until 1913. It will thus be seen that in the opinion of the Legislature the statute for the relief of the indigent and dependent poor did not adequately fulfill the purpose for which the latter statute was enacted. A careful comparison of the two statutes will disclose the fact that they were enacted with entirely different objects in view, and to remedy conditions altogether dissimilar. It was never intended by the Legislature that the mothers of future citizens of the state should be regarded as paupers or placed in the pauper class. Consequently, we feel compelled to hold that a provision for the indigent and dependent poor of Utah county is not such a provision for widowed mothers dependent upon their own efforts for the maintenance of their children as is contemplated by the statutes of the state.

3. It is further contended as matter of defense that there are no funds at present out of which provision can be expressly made for the purpose demanded in this proceeding. Ordinarily such a defense is a complete answer to an application for a writ of mandate; that which is impossible cannot justly be required. But assuming there are no funds at the present time available for the purpose in question, it does not necessarily follow that such condition must continue indefinitely. Utah county is a quasi public corporation, a legal subdivision of the state, with ample power to assess and collect taxes for all legitimate purposes authorized by the laws of the state. It is quite true that taxes must be assessed, levied, and collected at the time and in the manner provided by law. Defendants contend that it is now too late to assess and collect additional taxes for the year 1921. They also insist that it is too early to compel the assessment and collection of taxes for the year 1922. It is also suggested that no person has the right to anticipate that defendant will refuse to make the provision that may be required in 1922, and that until defendants do refuse there is no ground for action against them. Upon this point they cite High on Extraordinary Legal Remedies (3d Ed.) p. 17, page 160, par. 144, and page 19, par. 14; also State v. Rising, 15 Nev. 164.

The contention, to say the least, is ingenious, if not disingenuous. If it is too late to assess and collect taxes for 1921, because the time has past within which it can lawfully be done, and too early for 1922, because the time when it can be done has not yet arrived, it is easy to see in a meritorious case, that grave injustice might be done; in fact it might happen, if the rule contended for were rigidly enforced, that relief in a case of this kind...