State ex rel. Utah Savings and Trust Co. v. Salt Lake City

• Decision Date: 30 December 1908
• Docket Number: 1992
• Citation: 99 P. 255,35 Utah 25
• Court: Utah Supreme Court
• Parties: STATE OF UTAH, ex rel., UTAH SAVINGS AND TRUST COMPANY, a Corporation, Plaintiff, v. SALT LAKE CITY, a Municipal Corporation, JOHN S. BRANSFORD, Mayor of Salt Lake City, J. B. MORETON, City Recorder of Salt Lake City, and GIDEON SNYDER, City Treasurer of Salt Lake City, Defendants

99 P. 255

35 Utah 25

STATE OF UTAH, ex rel., UTAH SAVINGS AND TRUST COMPANY, a Corporation, Plaintiff, v. SALT LAKE CITY, a Municipal Corporation, JOHN S. BRANSFORD, Mayor of Salt Lake City, J. B. MORETON, City Recorder of Salt Lake City, and GIDEON SNYDER, City Treasurer of Salt Lake City, Defendants

No. 1992

Supreme Court of Utah

December 30, 1908

Original proceeding by the State, on the relation of the Utah Savings & Trust Company, against Salt Lake City and others for a writ of prohibition to prohibit the defendants from issuing, negotiating, and disposing of water and sewer bonds.

WRIT DENIED.

Messrs Richards, Richards & Ferry for plaintiff.

PLAINTIFF'S AUTHORITIES.

The notice of election should have designated the polling places. (Compiled Laws of Utah 1907, sec. 309; 29 Cyc. 1590, and cases cited; 21 Am. & Eng. Ency. of Law, 47-48; Hanswirth v. Mueller et al. [Montana], 64 P. 324. The notice should not have stated that the net revenues from the water system would be a sinking fund for the payment of the bonds and interest. (Compiled Laws of Utah 1907, sec. 310; Skinner v. City of Santa Rosa [Cal.], 40 P. 742.)

Messrs H. J. Dininny and P. J. Daly for defendants.

DEFENDANTS' AUTHORITIES.

The position we have taken that it was not necessary to the validity of this bond election that the polling places should be designated in the published notice of election, is sustained by the case of Packwood v. Kittitas Co., 15 Wash. 88, 45 P. 640. An election will not be set aside because the law requiring the giving of notice has not been strictly followed, if such notice was given, as that the great body of electors was informed of the time, place and purpose of the election. (Cone v. Smith, 132 Mass. 289; Welsh v. Wetzell, 29 W.Va. 63; Seymour v. Tacoma, 6 Wash. 427, 33 P. 1059; Woodward v. Fruitable, etc., 99 Cal. 554; In re Mitchell, 81 Hun 401; State v. Carroll, 17 R. I. 591; Williams v. Shondy, 12 Wash. 362, 41 P. 169; Dishon v. Smith, 10 Iowa 212; State v. Doherty, 47 P. 959; Sommercamp v. Kelly, 71 P. 150; Dillon on Mun. Corp., sec. 197, note 3, and cases cited; Lodgord v. East Grand Forks [Minn.], 117 N.W. 341; Town of Coloma v. Eaves, 92 U.S. 484.)

"The vital and essential question in all cases is whether the want of statutory notice has resulted in depriving sufficient of the electors of the opportunity to exercise their franchise to change the result of the election." (Wheat v. Smith [Ark.], 7 S.W. 61; McCrary on Elections, 143; Cooley's Const. Lim., p. 88; Dishon v. Smith, 10 Iowa 212; State v. Grey [Nev.], 32 P. 190; Railway v. Pickney, 74 Ill. 277; Com. v. Smith, 133 Mass. 289; State v. Jones, 19 Ind. 356; Sommercamp v. Kelly [Idaho], 71 P. 147.

The sole purpose of the notice is to inform all interested parties in order that they may register and cast their ballots on the day fixed for the election. (Cleveland v. City, 54 S.C. 86, 31 S.E. 871; Warsop v. Hastings, 22 Minn. 438; Clark v. City of Janesville, 10 Wis. 141; Seymour v. Tacoma, 33 P. 1059; Hesseltine v. Town of Wilbur, [Wash.], 69 P. 1094; 1 Dillon on Mun. Corp., sec. 197, p. 280, note 3; Williams v. Shondy [Wash.], 41 P. 169; Wiggins v. Lewiston [Idaho], 69 P. 286; Tied. on Mun. Corp., sec. 65; Territory v. Board [Ariz.], 12 P. 730; Dishon v. Smith, 10 Iowa 117; People v. Cork, 14 Barb. 261; McCrary on Elections, secs. 142-149; State v. Lansing [Neb.], 64 N.W. 1104; Cooley Const. Lim., p. 759; Trimmer v. Bomar, 20 S.C. 354. See also Cheyenne v. Rollins, 96 P. 244; 1 Cook on Stock and Stockholders, p. 143; Railway v. Commissioners, 21 Kan. 309; Railway v. Commissioners, 116 N.C. 563; Hamilton v. Village of Detroit [Minn.], 85 N.W. 933; People v. Sisson, 98 Ill. 335.)

This statement that the bonds and interest would be paid out of the surplus water fund was surplusage, it being no part of the questions required to be submitted to the voters, and the notice of election being complete without it. (Santa Barbara v. Davis, 92 P. 308, 309 [Cal.], 1907; Yesler v. Seattle, 25 P. 1014, 1018 [Wash.].)

The authority to issue a municipal bond carries with it authority to levy sufficient taxes to pay the same, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation which repels such an interference. (Loan Association v. Topeka, 20 Wall 655, 660; U. S. v. New Orleans, 98 U.S. 381; Wolf v. New Orleans, 103 U.S. 358; Ralls County v. U.S. 105 U.S. 733, 735, 736; U. S. v. Clark, 96 U.S. 211; U. S. v. Fort Scott, 99 U.S. 152; U. S. v. Fort Scott, 99 U.S. 152; U. S. v. New Orleans, 98 U.S. 381; See also 124 F. 124 and 115 F. 437.)

FRICK, J. McCARTY, C. J., concurs. STRAUP, J., concurring in result.

OPINION

FRICK, J.

This is an application to this court for a writ of prohibition. For convenience the parties will be designated as plaintiff and defendants. The question involved being of a public nature, we have entertained the application without requiring the plaintiff to apply to the district court, as is usual with such applications.

The plaintiff, as a taxpayer of Salt Lake City, brings this action to prohibit the defendants from issuing, negotiating, and disposing of certain water and sewer bonds. The bonds in question are attempted to be issued and disposed of by virtue of the alleged authority conferred upon the defendants by a special election held on the 29th day of July, 1908, pursuant to an ordinance duly passed by the city council and approved by the mayor. The plaintiff, however, alleges that the special election was irregular with regard to the matter hereafter to be noticed, and that therefore the bonds should not issue. The ordinance was passed, and the election called and held, in conformity with the following constitutional and statutory provisions, namely: Section 3 of article 14 of the Constitution authorizes any county, city, town, village, or school district to incur an indebtedness beyond the current revenues in case a majority of the electors who have paid a property tax within the municipality the year preceding the election authorizes such indebtedness. Section 4 of the same article, within certain limits, authorizes an indebtedness to be incurred as provided in section 3 for water supply, artificial lights, and sewers when the plants are owned and controlled by the municipality incurring the indebtedness. Pursuant to the foregoing constitutional provisions, the Legislature passed a certain act which now constitutes sections 308, 309, and 310, Comp. Laws 1907. Section 308, in substance, provides that any city or town may incur an indebtedness not exceeding four per cent of the value of the taxable property therein for water supply, artificial light, or sewers when the works are owned and controlled by the city or town, after the question shall have been submitted to the qualified electors who have paid a property tax in the year preceding the election, and if a majority of the electors voting upon the proposition shall have voted in favor of incurring the debt. Section 309 is as follows:

"When the city council of any city or board of trustees of any town shall have decided to submit the question of incurring a bonded indebtedness, it shall, by order, specify the particular purpose for which the indebtedness is to be created and the amount of bonds which it is proposed to issue, and shall further provide for submitting the question of the issue of such bonds to the qualified electors of the city or town at the next general election, or at a special election to be called for that purpose by the council or the board, as the case may be. If the question is submitted at a special election, it shall be held, except as herein otherwise provided, as nearly as possible in conformity with the general election laws of the state. Notice shall be given of such election by publication in some newspaper or newspapers published in the city or town for four weeks prior thereto; or, if there be no newspapers, then by posting notices. The council or the board, as the case may be, shall cause ballots to be printed and furnished to the qualified electors, which shall read: 'For the issue of bonds: Yes. No.' If a majority of the qualified electors voting thereon shall have voted in favor of incurring such indebtedness, the board may proceed to issue the amount of bonds specified."

Section 310, in substance, provides that the city council shall, by ordinance, provide for the issuance and disposal of the bonds; that the same shall not be sold below par; and that such council shall annually levy a sufficient tax to pay the interest as it falls due, and also to constitute a sinking fund for the payment of the principal within twenty years from the date of the bonds.

Pursuant to these provisions, the city council of Salt Lake City duly passed an ordinance, which was approved by the mayor, in which it was provided that propositions for the issuance of bonds in the sum of $ 475,000 for water supply, and in the sum of $ 125,000 for sewer, be submitted separately to the voters in said city at a special election. The ordinance contained a somewhat detailed statement with regard to the necessity of issuing the bonds and the purposes to which the proceeds derived therefrom should be applied. The ordinance also provided for a special election and the giving of notice thereof, as provided in section 309 supra. The ordinance also contained a statement that the election was called pursuant to the sections above referred to. Agreeable to such ordinance, a notice was prepared in which were recited about all the statements contained in the ordinance, including the particular purpose for which the bonds were to be issued. The notice was published for the time required by section 309, supra, and, while it gave the date of the election,...