*1 wаy foregoing as not to make power to raise revenue separate power regulate. incidental to it but rather a to prohibits legislature If the constitution dele- from gating power taxes, cities the to raise revenue license peculiar it did it in a way most and roundabout —denial by implication and a implication far-fetched at that when prohibition a direct would have been clear. It would have simple say been to power “cities and towns shall not have levy excise taxes” equivalent import, words or the legislature delegate shall not to cities the levy excise taxes.
Since cities powers exceрt and towns have no those granted expressly by legislature necessarily implied municipalities such would to ad be restricted valorem taxes days alone and in city government these when the cost of along with all greatly other costs risen has seem would to be an unfortunte simple restriction. But the short and disposition argument рrohibition by impli- that no cation or on otherwise
cities and levy towns the excise taxes can be read into the disposes constitution. peremptorily This argument of amicus curiae. BAKER
BERTAGNOLI al. v. et al. et (215 626.) No. 7408. Decided March P. 2d *2 S., Domain, Eminent sec. 23. Eminent domain 29 J. See C. also, note, See, corporations, A. L. 18 see R. Am. Jur. 651. Cowan, Finlinsоn, City,
Riter, Henriod & Salt Lake appellants.
Cheney, Marr, Cannon, City Wilkins & Lake Salt respondents.
WOLFE, Justice. question presented sole proceeding- is whether the Board of Education of City Salt Lake has been authority by of this state to condemn land outside the limits Salt Lake for the erecting building school thereon.
The Board of City, Education of Salt Lake hereinafter referred to Board, as the School an cоmmenced action be- against petitioners low to condemn a tract of land situ- part ated in within the confines of the Salt Lake District, which are co-extensive with the limits of City, part Salt Lake within the bounds of the Granite *3 District, School which County lies in Salt Lake outside the City. limits of Salt Lake petitioner, Bertagnoli, The is the princiрal simple; owner in petitioners fee the other claim minor property. interests the petitioners The demurred to complaint the School grounds Board’s on the that it did not state facts sufficient to constitute a cause of action complaint and that the was respects, uncertain in several being one of alleged which that it was not or stated proper legal technical and description part what of the sought tract lay to be condemned within the limits Salt part Lake and lay what of the tract without the limits city. petitioners of the The also filed a motion that the required School Board be complaint to make its mоre alleged definite and certain in respects in the demurrer. The demurrer was overruled and the motion was denied granted and the School Board was to enter onto purpose making tract of land for examinations, surveys maps. Thereafter, and petitioners petitioned prohibition court an alternative writ of which was for. granted, directing below, judges that the thereof, court Board, and the any proceed- refrain from further ings in action, the condemnation pertains insofar as it to Lake the limits of Salt property without the real situated petitioners do of this order court. until further taking necessity for the question not either apрlied. which is to property or use to recognized we have previous this court decisions municipal corporations; public are that boards education legis statutory; purely and powers that their are governing may authorities authorize the lature anything prohibited districts to do not school Also, of education the boards Constitution. upon powers expressly conferred are such as execute are implied
them and such express powers. carry Chamberlain and into effect their Edu 566; Beard Board Watters, 10 P. Utah v. examine cation, 2d we must 81 Utah 16 P. 900. Thus the extent to determine this state for authority given to condemn land of educatiоn boards Annotated, 75-11-20, proper purposes. Utah Code Sec. 1943, provides: pur- “Every shall have and of education board thereon, improvements to con- and sites
chase and sell schoolhouse same, buildings to estab- and furnish erect struct and school grammar kindergarten lish, and and locate maintain schools, training high grades, or manual schools and industrial * ** high improve exchange, repair school purchase, and supplies. apparatus, books, furniture, fixtures and all other school * procedure, by-laws adopt own and rules regulations the con- enforce all needful rules and make and management of the district.” trol schоols 104-61-1, 1943, provides: A. Section U. C. *4 provisions chapter, “Subject of this of eminent may following public uses: be exercised in behalf of domain grounds any county, (3) buildings Public for use of education;
city town, incorporated *.” or board McQuillin Municipal Corporations, In on Second Ed., Revised, 1619, pg. 546, Sec. it is stated that corporation сannot condemn land within the state but “a by delegated unless the has been outside its limits legislature.” 352 Lewis, Domain, Ed.,
See 371, Eminent 3rd Sec. for a* similar statement.
When by statute, of eminent domain is principle it is a well amply supported by settled of law many jurisdictions cases from country, in this extent to may which the be exercised is limited to express implication terms and clear of thе statute. v. Birmingham Brown, 203, 305; 241 Ala. 2 2d So. Hampshire v. Bridge Authority Maine-New Ham, Interstate 179, 91 362; N. H. Railway 16 A. 2d Detroit G. H. and M. v. Company Weber, U. S. v. 28, 663; 248 Mich. 226 N. W. Threlkeld, Cir., 464, 10 F. 72 2d certiorari denied 293 U. 620, 215, S. 708; 55 S. King Ct. 79 L. Ed. State ex rel. v. County Superior King County, ., Court . . . . . Wash. 514; Lewis, 204 P. 2d Domain, Ed., Eminent 3rd Sec. 371. domain, being derogation eminent rights of ownership individual property, strictly has been construed person the courts so thаt no wrongfully will be deprived enjoyment of the use and property. of his Burn ham v. Mayor Beverly, Aldermen 388, 309 Mass. 750; Caruthersville v. N. E. 2d 135 A. L. R. Faris, App. 80; 237 Mo. King 146 S. 2d State ex W. rel ., County Superior King County, Court . . . .. Wash. 514; 204 P. 2d Virginia U. S. Co., v. West C., Power D. Supp. F. the instant case the School Board con tends that when silent, statutes, statutes are as are our on the matter of municipal сorporation whether a condemn land limits, outside generally the courts have refused to read a territorial statute, limitation into the but permitted municipalities to condemn land outside their proper limits for municipal purposes when it has been necessary. Upon examination of the cases cited support Board in contention, of this we find that in all of them there was involved the construction of conferring statute or upon municipalities the auth ority to condemn land for the constructing maintaining culinary system, either a water system, a sewer
353 cases the all of these hydro-electric power plant. In aor out land cоndemn courts concluded clearly municipalities could be the boundaries side or of the statute any other construction inferred since seriously im worthless would render involved given purposes. power to condemn for pair "of Romney, 69 W. Va. example, Town in v. For White involved there 323, 324, condemnation statute E. 73 S. may be condemned that land declared * * * company village for the any city, “by town or acquire any public use, establishing land for waterworks * * * * and other reservoirs the construction for necessary purposes may and land for its works which be water conveyance and so of water way pipes, for the conduits necessary any springs, and creeks as rivers water from much for its (Italics added.) purposes.” the court reasoned: There very broad, munici- of condemnation wide “Here is a limiting language purposes. contains no pal corporations water It municipal It limits. within condemnation to lands gives land,’ ‘any It says ‘any springs, rivers and creeks.’ аny purposes without works for water condemn lands Legislature municipal knew limits. limitation supply impossible many to secure a sufficient it would be instances many of the It knew that in limits. within of water towns and beyond their water is obtained from cities of the state indispensable without It to confer intended boundaries. power of con- In most cases the limits. restraint demnation, limited, be worthless.” if so would reasoning indulged Supreme Court was
Similar
Cheyenne, Wyo. 110,
Wyoming
in Edwards v.
677,
ity lands outside its limits express no contained outlet because the statute of a sewer city authorizing condemnation of land out- provision рrev- upon one of There the court relied limits. side its *6 Village Maywood, decisions, Maywood Company ious of 216, 704, 705, 140 Ill. 29 N. E. it said: where already village may lawfully “We have decided that a extend its beyond securing purpose sewers its limits for the a suitable outlet corporate of * * limits, improvement *. In such case the is within the benefit, muniсipality. and for the exclusive use of The ex- the only purpose giving practical tension and outlet serves the of effect system sewage. deny to the sewer in or of No one will that a sewer city village improvement Hence, is a the local *. expressly given, to construct them is and the to also provide samе, boundaries, suitable outlets for the even outside of its by necessary express implication; otherwise, must result fair and many unavailing.” would in instances be Loveland, City In Public Service Co. Colorado v. of of 216, 493, 500, 79 Colo. 245 P. the statute there involved authorized cities appropriate towns to condemn private property sо much as is construc- operation water, tion and gas, or electrical works. It was contended that inasmuch as the statute was silent as -rights granted, to the territorial limits of the authority beyond had no propery to condemn its limits for maintaining hydro-electric plant. But rejected contention, saying: the court nothing against “In this therе case is to militate the necessities of but, city, contrary, necessity on the there is a double or twofold implied power upon reason for the existence and exercise of an the for for part city acquire by condemnation, otherwise, to land corporate First, get use outside its limits: water generation electricity; and, second, to receive and distribute any city physically the load. if We doubt the state is situated so permit operation hydro-electric as to of the construction or of such a plant wholly give within its limits. A construction followed, give statute effect will be rather than one to it an absurd meaning nugatory.” and tо render it reasoning Similar employed by was the court in Board of Johnson, Water Com’rs Norwich v. 86 Conn. A., S., 84 A. 41 L. R. N. dis indulged in the cases reasoning courts statutory in which cussed above by implication, found corporate limits was land outside granted to boards apply does not why the persuasive reason is no There education. educаtion contemplated legislature that boards having systems without efficient school not maintain could the boundaries land outside power to condemn them implication and thus intended district conclusion being so, natural power. This that the the statute draw from the silence powers of con confer extraterritorial did nоt intend to upon of education. demnation boards *7 cited, we nor have has not Board for the School Counsel authority to condemn single found, in which the a case under inferred municipality has been of a without the limits in the substantially found to those similar circumstances Brown, Birmingham, 241 Ala. City instant case. of similar, 305, 309, facts somewhat 203, 2d under 2 So. Burmingham en- authority There the was denied. corpor- located without real estate deavored public park. A purpose of a city for the ate limits of the 298, 1915, 15, p. provided statute, Laws Ala. pertinent § public any or power condemn for have full “cities shall right by the exercise of any therein or interest land ** added.) (Italics domain. eminent any municipal phrase “for contended that The limiting any to land land” without it public purpose or limits, to con- was a within corporate limits. The court held land without demn “entirely broad,” too a construction was that such subsequently wholly unnecessary enacted render would granting condemn expressly to сities statute principle The of law outside their limits. wharves land for conferring domain must of eminent strictly in relied construed favor of the landowner was upon by the court.
Similarly Utah, in in Alabama the case legislature parks, subsequent by there are enactments legislature by which lead us to the conclusion that the impliedly silence did not intend to confer extra upon territorial of condemnation boards legislature 1947, education. In authorized boards joint participate or education to in the construction operation, both, within of a school attended children residing districts, adjoining the district and children 75-11-26, either A. within without the state. Sec. U. C. 84, 1, Chap. Utah, Sec. Laws of Had boards prior possessed the author education to that enactment ity districts, to construct schools without the bounds of their any necessity it is doubtful that there would have been the 1947 enactment. , argue 19-4-3, respondents U. that because Sec. acquire expressly
A.C. counties are legislature boundaries, and hold land within their presumably intended not limit the of boards to so expressly education done so. The else would have argument difficulty respondents’ with the is that acquire intended cities to have the property outside their limits and to construct or authorize limits, the construction of their but it waterworks outside *8 language by express made and did not that intent known by implication. 15-8-2 and leave it to be derived See Secs. 15-8-15, A. 1943. U. C. authority contended for the
Thus it follows that the being having expressly Board not been and not clearly statutes, it. Un- inferable from our must be denied subject, power be derived der the authorities on this cannot support which the School from the dоubtful inferences authority. hereto- Board’s claim of The alternative writ granted permanent. party to bear his made Each fore is own costs. McDONOUGH, JJ., J., con-
PRATT, C. and WADE and cur.
LATIMER, Justice.
I concur. right emphasize concept
I the believe well to that rights derogation property to condemn is in of common permits taking prop- away from a land-owner the erty he desires to retain. A hоme be taken man’s governing political the state or one if the of its subdivisions body public purpose. believes it This is a for a taking drastic method of from the view- when considered point person Accord- property whose condemned. rights ingly, jealously guard we must the individual’s authority express purpose and not infer the unless legislation vested in the demands that school board. litigation inferring present we are faced with grant intended of Education to the Board property
of Salt Lake outside legislative history purposes. of the district for school argues of schools and school districts in this state otherwise. legislation dealing Most with school bоards and districts suggests authority of the board can- beyond particular not be exercised the territorial limits of a only principal exception find in the stat- district. The that I authority granted adjoining utes is the school districts to operate jointly construct schools for the benefit grant children of all districts. seems to This negative me to the inferential to con- legislative demn outside of a district enactment permits jointly when exercised with other ad- perculiar joining circum- districts. under Whether of this case the Salt Lake School District could stances *9 agreement obtain the ends now a bona fide seeks with adjoining joint-; school district to condemn the land and ly operate construct and school not before us and I, therefore, express opinion question. no as to that limiting
If a school board to condemnation within its with, district from, destroy were to detract interfere operate schools and construct buildings, good school then I could see some reasоn for inferring right. find, any- But I neither can has nor suggested, why legislative one anticipated by it should be a body operations crippled that the of a school board would be by being property unable to condemn in other districts. True, peculiar geographical facing we situation us But, in this concepts warped instance. cannot be to meet peculiarities. individual needs (two cases). STATE v. CALDER (215 912.) Nos. 7385. Decided March P. 2d