*1 138 question there but what
think there here. evidence
was such crockett,
McDonough, j., and c. WORTHEN, JJ., concur.
WADE P.2d 895 Plaintiff, BAIR,
Marion CORPORATION, a munici CITY
LAYTON Dawson, corporation, pal A. James Elias Adams, Morgan, Biggs, Dean Irvin W. E. Cook, Stevenson, Jr., Richard L. Richard County Sewer Park, Davis North M. John Stoker, Ray Dawson, District, A. J. O. Mitchell, Stoker, Rich Albert J. Clarence Wall, Jr., Stevenson, J. J. S. ard Ervin Holt, Patterson, Arthur E. Lawrence Alex Layton Cook, Mitchell, Joseph Golden F. Cook, Defendants. Vird
No. 8585.
Supreme of Utah. Court
Feb.
class eight and north one of cities part County of Davis in Weber one County in the defendant Coun- North Davis ty Sewer occupies District. This District territory Moun- between Wasatch Range tain on the east Salt Great Lake organized the west was Improvement Sewer dis- for the District position disposal, treatment under An- Chapter Title Utah Code notated 1953. The cities and other government some plants had sewer facilities prior organization to the District purpose provide District was to plants additional fall out lines Handy, plaintiff. George Ogden, for B. to take cities care from such Clearfield, King, defend- William H. governmental plants. *3 ants. injunctive Plaintiff’s claim for relief is WADE, following (1) based on the contentions: Justice. City The creates in a debt of the resident, Bair, prop- Plaintiff, Marion excess of of year the taxes the current taxpayer the defendants and of erty owner qualified without submission to the electors County City and North Davis Sewer Layton 14, violation of Article section 3 of proceed- District, original commenced Utah’s Constitution1 and in excess of enjoin seeking to such court 12% ing property of the of the value of the taxable performing a contract en- from defendants City 14, in violation of Article 4 Section of 29, them on November tered into between City (2) our Constitution.2 Layton is no consti is a third Defendant 1955. incurring 14, 3, shall in favor on have voted of section Constitution of of 1. Article such provides: debt.” “No in excess debt Utah year shall the current for the taxes * ** * * * Article section 2. of by any city Constitution created provides: “When Utah authorized to State; proposition to unless the in this provided indebtedness as create tion 3 of this in Sec debt, have been sub shall such to a create * * * Article, city, qualified No of elec vote such mitted *** paid property shall become indebted tax have shall tors as therein, including existing year preceding amount, exceeding indebtedness, elec such in the per voting majority tion, four centum of there- of the Value those and a City authority district Basin statutory tutional for the is within the Water Weber Conservancy population con (3) to enter The District. The' into such contract. City’s has about lending tract is a district doubled 1940to credit to 22,000 District contrary Article Section when had about inhabitants (4) provisions adequate and our the coming Constitution.3 with water ambiguous supply and unreason anticipated are it is it will more attempt City’s govern able and to bind double that number 1973. ing body, mat respect governmental with Near beginning of World War II the contrary
ters to the Constitution. United States constructed several out fall provide sanitary a debt lines creates facilities Whether this contract for military plants nearby city contrary of the the constitutional and housing for facilities. After the existing debt facts war in order to depends limitation relieve operating the United States of circumstances, the terms of such facili- Syracuse, Layton, ties the communities of facts contract. review of such So a short Sunset, Clearfield, Roy, Clinton and Latona of the and the terms circumstances unincorporated formed an association contract is in order. Metropolitan North known Davis Within boundaries the territorial pur- Sewer entered into a lease States maintains United chase with the United States Depot, operates Supply Naval the Clearfield to acquire such facilities. Soon thereafter Hill and Hill Air Force Air Force Base apparent it became that more sewer out fall 15,000 Approximately Base West Sector. plant lines and a were persons plants employed these provide vitally To needed. these additional many em- more the war there were provide legal machinery facilities authorization, ployees. area issuance All of the territorial for the and sale of in Section three of city, indebtedness ther, allowed purposes; be incurred for ond * * * * * * be taken incorporated the taxable class * * * to incur a from the last and when authorized any provided allowed to exceed any property therein, cities city purposes; city of that no larger the assessment *4 in this assessment of the third the eight per article, may strictly first and sec- provided indebtedness, section shall part provided * * centum * * class, shall fur- [*] * 3. Article Utah, not al or king light when the city, trolled scribe road, additional, for authorize water, telegraph * * corporate to stock provides: by the municipality,” works for sewers, section * . artificial supplying the or other to enterprise shall be owned and bonds “The lend State, supplying lights its credit or sub Legislature ” private Constitution aid or underta any county, of individu any or town sewers, water, shall rail con- of money contract, execution necessary to con- of such which the bonds to raise duly facilities, day. was the Davis entered into on Under struct the additional County proceed the contract the County agrees Commissioners to of district Board concurrence adopted promptly the a resolution with with the construction of additional County County Board the Weber of sewage disposal of and treatment facilities North Davis creating the and Commissioners to its existing use facilities with the immediately County and Sewer District facilities, additional as soon as construct- organized Trustees ed, the Board of thereafter disposal in the and treatment the of working now district is That district. sewage the city. city from agrees the The Pollution Water harmony with State the sanitary sewage system to connect its to the sani- supply the Board in order to Control disposal disposal of the district for facilities fall sewage out ‘requirements the tary for pay and treatment the therein and to district un- flows present at which this area from such for services for each calendar month Lake. Salt the Great into treated January, 1956, during the life of the accordance with a schedule of contem- and operates now district The rates for the various sewer connections on operation of and plates construction the system the at end of treatment disposal and sewage additional city agrees supply month. The further been has election an To-that end facilities. on 15th the district of each month with has the district electorate and the held an itemized facts statement of neces- the. $2,100,000 to issue the district authorized sary to the amount due from the determine $800,000of bonds obligation general city preceding the district for the month .to Layton, well day. city pay such amount on that bonds. revenue district, now owns cities within as other The contract contains following also lacks ade- system but a sewer operates provisions: disposition treat- for the quate facilities “The never have shall district is collected ment of right any payment demand obli city desires that systems and the sewer gation devolving on the under this operate shall construct agreement from funds raised to be disposal facilities adequate by taxation, obligations raised and all sewage which collected devolving so shall never be district. in the construed be a debt require levy kind as enacted col November On directing authorizing discharge lection a tax such obli ordinance *5 by gation, being expressly distance an understood established sewer it collec- parties shall main; the hereto that the tion be to' connected to such main. city to require right not have to the the agreement “4. This shall take effect from make any payment hereunder due from and after arid its execution shall moneys any received source other period continue in fifty force for a its by city operation of from the the (50) years from such date until or all pay sanitary all system, and that sewer of the bonds of the district hereinabove shall hereunder ments be made so to described, any and bonds issued 'to re- such expenses of operating constitute fund bonds, such shall have fully been provided, how system; sanitary sewer paid retired, and whichever termination paragraph nothing in ever, this date shall be later. toas construed shall be so contained “5. The hereby district is granted payments of such preclude making the the right bring to such and suits to in- money any revenues by city from or the stitute litigation against such city the hand available may have on it may its officials necessary city agrees purpose. such for require full performance by city the the charges for serv rates and impose such of all agreements the sys herein sanitary contained by sewer its supplied ices and all devolving duties on it under prompt the the possible make as will tem provisions hereof, may, which suits incurred expenses all payment limitation, but without include suits for system, maintaining such operating injunction. mandamus or hereunder, payments-due including the obliga payment prompt .all “6. In case reason of force ma- city from the rev payable tions jeure party either hereto shall be renr . system of such enues unable, wholly part, dered carry during it obligations agree- will out under city agrees that its “The things ment, agreement obligation do all other than term payments required make proper maintenance necessary to sanitary sys- hereof, under the terms then each of its operation such party keep give particu- in force at all shall notice and full it will tem, majeure lars force term of this of such during writing times buildings party all within requiring a reasonable ordinance of. occurrence in said . for time after the event used structures on, pur- obligations industrial cause relied and.the residence, commercial party notice, giving far such which are within reasonable so poses, hand, they such ma- On the other clear are affected force exceeded. is suspended during only jeure, shall be that if the debt which the incurs inability obligation then under continuance this contract longer period, claimed, monthly payments make for but services ren- monthly period party taking endeavor to dered shall remove inability treating and in and overcome all *6 it, dispatch. The term then the ‘force constitutional debt reasonable limitations city herein of the employed shall has been majeure’ as mean not exceeded. strikes, lockouts, God, or acts of city Under this contract the borrows disturbances, pub- acts of the industrial money bonds, and issues no nor does it ac- any enemy, orders kind of lic the quire agree acquire or construct or to or United of the States government or the any sewage construct sewer or insurrections, Utah, riots, epi- State plant public improvement. or other It landslides, demics, lightning, earth- merely pay to contracts by hurricanes, fires, storms, quakes, floods, month which for services the district ren- arrests, washouts, govern- restraint of during month, ders each calendar long as people, civil disturbances, ment as the district renders the services which breakage explosions, .or accidents to render, agrees to in accordance with the lines, partial machinery or collection contract, throughout the life of the contract. inability city complete or to dis- city agrees keep The to also during effect disposal charge sewage into the facili- the life of the contract an re- ordinance district to ties of the treat and dis- quiring buildings all and structures in the sewage pose any on account of such city for residence, which used commer- reasonably not other causes within the purposes cial or industrial within a reason- party claiming of the control in- able distance of an established sewer col- ability.” lection main to be connected with such main conceded if the The defendants agrees pay total and the district for its services monthly of all the aggregate pay disposing city sum or of the sewage in accord- probably owing which will become ments ance with a rate schedule for the connec- fifty years or more of life city’s sanitary tions with the sewage system. present a contract constitutes of this debt monthly payments The amount of the city then of the obligation debt limi city will owe district under this con- provided both sections 3 .entirely depends tation tract the number and 14 of our Constitution has been kind of connections to the Article sewer sew- express provision especially provision limiting system. from er city’s liability operation payments continue to make the out the contract shall money city received from its sani- dis- years and until the bonds for SO tary system expenses operating as sewer as well the contract described in trict source, city and from no other that the will shall refund such bonds all bonds issued to be liable to make such the district to pro- paid. fully contract further The monthly payments in case the district fails shall never have vides that the district services, which it agrees to furnish right any payment from the demand furnish, under the terms of the contract. raised or from funds under any be raised taxation or from source authority, weight of and the moneys by the other than from received cases, hold that reasoned better expenses sanitary operating its electricity, water, disposal furnish system agrees impose and the other service municipality to a charge operating expenses which for such period paid of time long to be over a monthly will prompt payment of the insure periodically as the service is furnished payments owing become due and which shall create a debt as that term does not is used from the to the district. provisions debt in constitutional limitation The effect of this contract is that *7 aggregate may the amount which for ac obliged is monthly pay- to make the owing during crue or become the life of ments to the district for the services which especially the This is contract. true where it during has rendered preceding the calen- payments owing the become only and accrue dar month. If the in violation of upon service, the rendition of the where services, the contract fails render such fixed payment there is no amount of each monthly payment owing. would And be but varies such amount in accordance with any obligation event the has no quantum rendered, the of service where any payment except make from funds municipality the cannot he coerced into by expenses operating received it as its of payment making any such other than from sanitary system, be may but it service, for such collection and where the charges making necessary coerced into the already has not its exceeded debt limi provide such services make for funds tation. monthly payments promptly the due. when expressly leading question A case on While the contract does not so City is state, provisions is its of clear and Walla Walla Walla Walla Co.,4 Water City Walla 4. See of v. Walla 43 L.Ed. Walla Wal Ct. 341. To the same Co., 1898, question la Water U.S. 19 S. note effect see in 103
. 146 “In the case under consideration the the United Supreme the Court
where an indebt- rental did become annual said: States char- meaning edness within the of author- weight “But we think the appropriate the to that ter until water reason, the ity, favors well as of as year had been- If the com- furnished. a that muni- construction more liberal it, pany had failed furnish the rental for corporation may contract cipal a all, payable would not at have been neces- a like supply gas water or original provided while the contract for payment sary, may stipulate for indebtedness, it creation was of an gas or annual for the water of an rental only company upon condition that year, notwithstanding furnished each performed obligation.” its own rentals aggregate of its City,5 question In Barnes v. Lehi on this may exceed the life of said: we of the indebtedness limited amount charter. is a be- distinction Loveland, City “In Shields v. su- pra 913], a debt a for a Colo. 218 P.
tween. fu- con- [74 ques- and the tract ordinance there incurred, pro- -indebtedness to be ture $5,000 required pay per tion party perform contracting vided the lights annum for for not less street may out which the debt years: held not to This the court be be- There is a distinction arise. also debt, only paying but a method of an- latter where an tween the case and one annually nually lights for street fur- once, debt is created at absolute ' rule general nished. The' is that such bonds, railway for the issue contracts, paid being for services to improvement, public erection merely periodically, arrange- are payable in fu- though debt be pay expenses ments to for current In the one case by installments. ture they are incurred.” until the not created the, indebtedness furnished; has been
consideration cases hold to the con once, is created at debt usually -the trary based on the wording only post- special payment being provision some limitation fact time *8 the case.6 a circumstance in Such con- poned. City, 1929, 321, 74 v. Lehi Utah cases Barnes 5. where 1160-1177 A.L.R. 878, question 343, P. 886. phases 279 are dis- of this various , cussed. note, 1169, . 1160, A.L.R. in 103 6 See 1173 1174.
147 present eming body indebtedness clearly does not create a city tract en- authorize the may accrue ter into kind aggregate of the amount this of a contract.8 in owing under the contract or- or become 3. The not contract does lend transactions, only but the
dinary business
city’s credit to
contrary
Ar
district
is created is the amount
indebtedness which
6,
ticle
Section 31
The
of our Constitution.
upon
owing
which becomes
the rendition
payments under the
contract commence
provi-
accordance with the
in
service
the month of January, 1956,
but the
repeatedly
We
contract.
have
sions of the
facilities,
treatment does
begin
until the
jurisdictions that
terms
with most
“held
for such treatment are
Plain
constructed.
in consti-
‘indebtedness’ as used
‘debt’ and
tiff contends that this allows the
to-
municipalities ‘is
debt limitations
tutional
construct- the sewage treatment facilities on
given meaning much less broad
com-
a
city.
the credit of the
showing
nois
us-
prehensive
general
in
than
bears
” 7
of how long it will take to
these
construct
that this
To
the conclusion
age.’
reach
facilities or that
respect
this
in
contract
to*
we
present
indebtedness
contract created
payments
to be made before such facil
used
give
have
to those terms
would
ities
constructed
unreasonable in view
much
provision a
constitutional
our
of the surrounding facts and circumstances.
they
general
have
meaning
broader
We therefore hold that there is
lending
usage. So
conclude
we
of the
credit shown
this contract.
city except
debt of the
not create a
does
service to
upon
the rendition
plaintiff’s
4. Under
contention
terms of
with the
accordance
provisions
that the
of the contract are un
in ac-
such debt
pays
if
ambiguity,
constitutional on account of
un
contract, the
the terms
cordance
reasonableness,
attempt
and an
to bind
will not
constitution
debt limitation
municipal
body’s
governing
successors
be exceeded.
beyond
office,
present
office
term
municipal
courts hold that
governing bodies
and stat-
There is constitutional
2.
powers governmental
enter into have two classes
authority for
utory
—
proprietary
powers
legislative
general
con-
business.
contract.
express statutory provi-
In
gov-
and its
the absence
officers
on the
ferred
11,
City
(5)
Corp.,
5,
Section
Subdivision
v. Clearfield
8. See Article
Barlow
7. See
Utah;
426,
10-7-1,
419,
682,
sections
1954,
P.2d
2d
268
Constitution
10-8-2,
1 Utah
10-8-38,
City,
10-8-61,
U.C.A.1953,
686;
Lehi
74
Utah
Barnes
1955, chapter
878, 884;
337-338,
of Utah
and Laws
sec-
P.
Swanson v.
279
Ottumwa,
161, 170,
City
Iowa
tion
sion, in governing exercise municipality, its advantageous nature to the power governmental cannot legislative of then will such contract be construed not is binding make a which on contract upon powers an unreasonable restraint municipality govern- end of such after the believe, succeeding This, of is boards.” we ing body’s But exer- term office. in the of a clear law on and correct statement of proprietary power cise of its business or question therefore, this that believe, and we body may municipality for as bind respect. this contract is invalid in this not reasonably neces- long period a time as is of It is was long evident a contract that term sary accomplish legal purpose.9 Con- necessary ade- in order for the obtain water, electricity gas involving tracts quate disposal facil- sewage treatment systems dis- supply and sewer and sewer delay ex- possible ities with the least posal generally like and the are pense, and construct- to have such facilities pro- an of the business held to be exercise plan in ed with long accordance term prietary power binding future and are on take unlimit- care of the needs for an bodies, by governing the same if made period ed manner of time to build in a individuals, period reasonable of for a so expanded can as the that the facilities be time.10 population Under of this area increases.
these provision conditions no constitutional City Fresno, supra,11 of v. McBean has been violated term contract long early case a con involving California pow- as att upon unreasonable restraint disposal and treatment of the tract for the succeeding ers governing bodies of limits, di sewage outside of the city. question present rectly point here sustaining argues such contract the court Plaintiff further that In
ed. appear keep provision at the that made to^ that “will if “it said into, entered it was in all times was force at the term this the contract time reasonable, prompted just requiring an ordinance all build fair situation, City, ings or was used for and structures said necessities especially 9. City v. Walla Walla above and Walla note 9 First of Walla 10. See 4; supra, City Co., note First National Bank of Red Oak of Em National metsburg, v. Water City Emmetsburg, City Fresno, and McBean v. of Red Oak v. Bank 159, 451, 555, 1896, 358, 361, 1912, 44 N.W. L.R.A. 138 112 Cal. P. 31 157 Iowa City Am.St.Rep. 191; 1915A, 982; of Eve Ambrozich L.R.A. 53 building system leth, Minn. 274 N.W. involve the a sewer 200 269; disposal see annotation 112 A.L.R. and a and treatment 795; plant. 794 and 37 in 70 A.L.R. effect Municipal Corporations, 679-680, Am.Jur. 11. See note above. sec. residence, pur- validity industrial of the commercial or enable us to determine the poses, distance which are within reasonable same. main, to
(cid:127)of an collection established sewer I am opinion of the that there main,” vague be connected with such is so whether sufficient determine alleged facts ambiguous is unenforceable. together question, not the opinion on might be a difference city, exceeds indebtedness rea- buildings whether some are within a year the taxes for in violation the current *10 main, sonable a sewer distance from Section constitutional limitation of might main reasonable distance from such Nor Article XIV of Utah Constitution. be different under some circumstances than sufficiently am I determine enlightened to others, under clear but seems that the any, of present earnings, whether the if body governing diffi- should have no system being used owned sewer culty enacting an ordinance which would help liability. meet the contract fix a reasonable distance from main buildings within which all the and struc- designated
tures in the contract must be con-
nected with such main. So we conclude and
hold that this contract is not invalid ac- vagueness
count of
ambiguity
in this
respect.
March WORTHEN, (concurring in re- Justice
sult) .
I concur in the result reached the ma-
jority opinion, not, however, ground on the valid, but because
there alleged have not been facts sufficient