Young v. Salt Lake City

Decision Date01 March 1902
Docket Number1301
Citation24 Utah 321,67 P. 1066
CourtUtah Supreme Court
PartiesLE GRAND YOUNG, HENRY WAGENER BREWING COMPANY, a Corporation, M. C. MOON, and JAMES THOMPSON, Respondents, v. SALT LAKE CITY, a Municipal Corporation, Appellant

Appeal from the Third District Court, Salt Lake County.--Hon. Ogden Hiles, Judge.

Petition by Le Grand Young and others, in conformity to section 288, Revised Statutes 1898, against Salt Lake City, praying that certain land described therein be detached and disconnected from said city. From a judgment in favor of the petitioners the city appealed.


C. B Stewart, Esq., for appellant.

By section 1, article 5, of the Constitution, the powers belonging to one department of government can not be exercised by any other; and section 29, article 6, prohibits the Legislature from delegating to any commission, etc power to make, supervise or interfere with any municipal improvement, etc. Section 1, article 6 divides the lawmaking power into two departments, and section 22, article 6, points out the manner in which a bill becomes a law.

Whether cities, towns and villages should be incorporated, and if incorporated whether enlarged or contracted in their boundaries, presents no question of law or fact for judicial determination. Courts may determine what are the corporate limits already established, and they may determine whether the municipality has exceeded its power under the law, and they may inquire what is the law, and whether or not it has been violated or complied with, but they can not legislate. City of Galesburg v. Hawkinson, 75 Ill. 158; Blanchard v. Bissell, 11 Ohio St. 96; Gray v. Crackett, 30 Kans. 138; People v. Stewart, 7 Cal. 143.

Provisions in a statute for the incorporation of a village authorizing a court to determine whether the lands embraced in the petition ought to be justly included in the village, and whether the interests of the inhabitants will be promoted by the incorporation, and giving the court power to enlarge or diminish the boundaries as justice may require, constitute an unconstitutional delegation to the court, of legislative power. Re Application for Incorporation of North Milwaukee (Wis.), 33 L.R.A. 638; State v. Armstrong, 3 Sneed 634; Territory, Kelly v. Stewart, 1 Wash. 98, 8 L.R.A. 106; People v. Nevada, 6 Cal. 143.

The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of law. The first can not be done; to the latter no valid objection can be made.

The Legislature can not delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. Field v. Clark, 143 U.S. 693-4; Cooley Const. Lim., 139; Dowling v. Insurance Co., 97 Wis. 70; 37 L.R.A. 160; 39 L.R.A. 155; 88 Cal. 491.

Benner X. Smith, Esq., for respondents.

The only contention is that the statute is unconstitutional, inasmuch as it is claimed that the formation of municipal corporations, the determination of their boundaries, the enlargement or restriction of their limits, is purely a matter for the Legislature, and that the statute in question is an unlawful and unconstitutional delegation of a legislative function to the judiciary.

It is claimed under the provisions of the Constitution, cited by the appellant, distributing the powers of the government, that the statute under consideration is unconstitutional, and their claim in effect is, and must be, that the statute gives the court the right to make the law. It is true that the judiciary can not make a law; the Constitution has vested that power in the Legislature, and any law which attempts to vest such power in a judge, in the executive, or any ministerial officer, would be bad; but conceding the impossibility of the Legislature to delegate the power to make a law, it does not follow that it may not make a law which is to take effect upon the ascertainment of certain facts, and may vest the power to determine those facts in some other branch of the government, and to confer upon the courts the right to determine such facts. That principle is as old as the law itself. Conceding, for the sake of argument, that there may be some doubt about the validity of the law (for there are a few decisions to which attention is hereafter called which are against the validity of laws somewhat similar, but the great weight of authority, as we think, is in favor of its validity), we would call the court's attention to a general rule that unless a law is unconstitutional beyond all reasonable controversy, then the law should be sustained. Cooper v. Telfair, 4 U.S. 14; Adams v. Howe, 14 Mass. 340; State v. Wilcox, 45 Mo. 458; Sharpless v. Philadelphia, 21 Penn. State 147.

The effect of the law in question is not to create a new body politic; whatever is created, is the creature of the Legislature, not of the court. It derives all of its powers from the law as passed. The court gives the law effect after it has determined judicially the existence of the requisites as fixed by the Legislature. When this law was passed it was perfect in all its parts. The only thing committed to the court was to determine certain issuable facts. The law did not arise from the decision of the court upon the facts as alleged, but the decision of the court came from the law, and it alone declared the consequences which must flow from the facts, and to claim that a legislative enactment is less a law because its operation depends on a future event, or the determination by a court of certain facts, is to assert that half of the statutes upon our books are unconstitutional, for the reason argued by the appellant.

If, under the Constitution of this State, it would be permissible for the Legislature to pass a special law incorporating a city, or changing its boundaries, there might be some merit in the appellant's contention; but the fact that such power is denied to the Legislature argues strongly for us. The Constitution requires the organization of cities, and the determination of their boundaries, by general laws; they must, as a matter of necessity, become effective by events to happen in the future, and to determine when such events have happened, when it is necessary to create, enlarge, or restrict, the boundaries of a city, as the case may be, the Legislature must provide some tribunal to determine the facts, and what better, or safer tribunal than the courts could be found; and when the court acts in the enlargement or restriction of municipal boundaries, it is not a creation of the court, but it is the result, and act of a law. The court simply finds whether the conditions exist which authorize the restriction of corporate limits, and when these facts are ascertained, the law, by its own force, enlarges, or restricts the corporate limits. If this were not so, we would be in a peculiar position in this State; carried to its logical conclusion, the result would be that municipal corporations could not be created; that as they exist to-day, in reference to their boundaries and limits, they must exist for all time, or the Legislature must pass a general law making the boundaries of all cities identical, which, in one case, might be insufficient for its municipal purposes, and in another, would be largely in excess of its necessities. If this law is unconstitutional, then the general incorporation law is unconstitutional, for that contains a delegation to a ministerial officer, the Secretary of State, to determine whether the articles of incorporation comply with the conditions provided by law. Again the delegation to the judiciary of the power to grant divorces would be bad. Divorces have always been a subject for legislative action unless restricted by the Constitution. The same thing would be true in reference to changing the name of persons, cities, and corporations, which is a legislative function. Again, in the case of local option laws, which have been held constitutional by the great weight of authority.

The statute in question was taken from, and is nearly identical with, a statute from the State of Iowa (Code of Iowa, 1897, sec. 622), and which at the time of its adoption in this State had been construed and declared constitutional by the highest court of that State. We, therefore, took it, bound by that construction. People v. Ritchie, 12 Utah 180.

The strongest cases relied upon by the appellant are: Galesburg v. Hawkinson, 75 Ill. 153; People v. Bennett, 25 Mich. 451.

And opposed to these are the following cases directly in point upon principle, and some of them upon all fours: Callen v. Junction City, 43 Kan. 632; Forsythe v. Hammond, 68 F. 774; Burlington v. Leebrick, 43 Iowa 252; Ford v. North Des Moines, 80 Iowa 626; Evans v. Council Bluffs, 65 Iowa 238; McKean v. City, 51 Iowa 306; Emporia v. Smith, 42 Kan. 433; Huling v. Topeka, 44 Kan. 577; Hurla v. Kansas City, 46 Kan. 738; Kayser v. Bremen, 16 Mo. 88; State v. Weatherby, 45 Mo. 17; State v. Wilcox, 45 Mo. 458; Lammert v. Lidwell, 62 Mo. 188; Wahoo v. Dickinson, 23 Neb. 426.

MINER, C. J. BASKIN and BARTCH, JJ., concur.



--The respondents in this case filed their petition in conformity with chapter 15, title 10, section 288, Revised Statutes 1898, praying that certain land described therein be detached and disconnected from Salt Lake City. It is alleged, among other things, that the land in question is not platted for any municipal purpose, and is not situated so as to render it desirable to be platted to be used for residence or business purposes, and that the same was no part...

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