120 P. 211 | Utah | 1911
This appeal involves proceedings bad in the district court to disincorporate Huntsville City, in Weber County. A petition for that purpose was filed in the district court by more than one-fourth of the legal voters of the city. On the 25th day of September, 1909, a notice was published that the question of discontinuance of the city would he submitted to the legal voters of the city at the general municipal election to he held in November, 1909. A vote was taken, canvassed, and return made to the district court, who found that a majority of the legal votes cast was for a discontinuance, and made an order discontinuing the’ city. The court further caused a notice to he published in a newspaper for a period of at least ten days, requiring all claims against the city to he filed in the district court within three months from the date of the first publication of the notice. The first publication was on the 28th day of April, and the last on the 9th day of May, 1910. Among other claims presented and filed within the time fixed by the court was the verified claim of the Utah National Bank of Ogden for the sum of $3,311.67, which was filed on the 21st day of July, 1910. The time for filing claims expired on the 28th day of July of that year. On the 5th day of August, the court, on ex pao'ie proceedings, in chambers, without notice, allowed the claim. The proceedings bad with respect to the claim of the Utah National Bank of Ogden were as follows:
*98 “Court: We are proceeding with the adjudication of the claims against Huntsville City, which has been disincorpo-rated. Yon want to introduce those in evidence? Pratt (counsel for Utah National Bant): Yes. Court: Mr. Pratt, in behalf of the Utah National Bank, introduces in evidence the warrants which were issued upon the money which was advanced by the bank according’ to the resolution. Pratt: Those warrants were presented and cashed by them. Court: Let them be introduced in evidence. That is all you wish to> introduce in behalf of your client ? Ptratt: Yes. Boyd (representing the First National Bank): I will only introduce one of mine. Court: Let it be received in evidence in behalf of the First National Bank. Pratt: Also this copy of the resolution. Court: It may be received on behalf of the Utah National Bank. Boyd: I will supply that other one later.”
It is certified to us by the district judge that the above and foregoing testimony, together with the warrants therein referred to, being sixteen in number, and the resolution, was all the evidence taken, heard and considered by the court in respect of the adjudication of the claim of the Utah National Bank of Ogden. Upon that evidence, the court, on the 5th day of August, allowed, and pretended to adjudicate the claim. Other claims were also, on that day, allowed by the court, amounting in all, including that of the Utah National Bank, to the sum of about $4900. The court- thereupon ordered a tax levy of twenty mills on the dollar to be made and levied upon the taxable property of the citizens of the city to- pay the allowed claims. On the 8th day of August sixty-three citizens of the city, and who were citizens thereof at the time the vote to- disincorporate was taken, and who were without knowledge or notice of the allowance and adjudication of the claims, filed a protest in the district court against the allowance and payment of the claim of the Utah National Bank “for the reason that the indebtedness forming the basis of said claim is in excess of the limitation of indebtedness permitted, authorized, and prescribed by the Constitution and the statutes of Utah, no tax having
The assignment of errors presents two questions: (1) Sufficiency of the evidence to support the order allowing the bank’s claim; and (2) the ruling refusing to vacate the order and to grant a hearing. We think the appellants are entitled to prevail on both.
The statute relating to the disincorporation of cities (Compi. Laws 1907', see. 294), so far as material, provides:
“The vote shall be taken and canvassed in the same manner as in other municipal elections, and return thereof made to the district court. If it finds that a majority of the legal votes oast for and against such proposition1 were cast ‘for disincorporation,’ then a judgment shall be entered discontinuing the same, and upon the entry of said judgment its corporate powers shall cease, and the court shall cause notice to be given in a manner to be prescribed by it, requiring all claims against the corporation to be filed in said court within a time fixed in the notice, not exceeding six months, and all claims not so filed shall be forever barred. At the expiration of the time so fixed, the court shall adjudicate said claims which shall be treated as denied, and any citizen of such city at the time the vote was taken may appear and defend against any claim so filed, or the court may in its discretion appoint some person for this purpose.”
It will be seen that by the statute the claim of the bank was required by the court to be treated as denied. The claim as presented recites that on the 19th day of February, 1907, the mayor and city council of Huntsville City adopted a resolution whereby the mayor was authorized to enter into a contract with the Utah Light & Hailway Company to procure “electrical energy” for the use of the inhabitants of the city and “further resolved that the purchase of the necessary wire, transformers, meters, and apparatus for conducting to the city and distributing to the inhabitants thereof such electrical energy heretofore made by the mayor for the city be, and the same is hereby, ratified and approved, and he is hereby authorized to purchase such additional apparatus as
When we look at the averments and contents of this claim, the statute which requires the court to treat the claim as denied, and the evidence heretofore referred to, the total lack or want of evidence to support the claim is so appalling that further comment on this point is unnecessary.
We also think the court erred in refusing to set aside the allowance and adjudication and to grant a bearing on the claim. The manner in which the adjudication was attempted, if not unauthorized, certainly was irregular. The statute provides that “at the expiration of the time so fixed” for the filing of claims “the court shall adjudicate such claims which shall be treated as denied and any citizen of such city at the time the vote was taken may appear and defend against any claim so filed, or the court may in its discretion appoint some person for this purpose.” Of course, it is clear what “adjudicate” here means. It means a solemn or deliberate determination by a judicial power upon a
The protestants, as well as a majority of the citizens of the city, were represented by counsel of record. The statute in express terms confers upon the court the discretion to appoint some person to appear and defend on behalf of the citizens against the filed claims. The court could well have appointed counsel already of record appearing for them, fixed a day for the hearing, and caused a notice thereof to be given such counsel as well as counsel for the claimant. Or, in the absence of appointing, that person, the court could have appointed the city attorney of the city, if it had one at the time when the vote to disincorporate was taken, or some other suitable person who fairly would represent and look after the interests of the citizens. So, too, the court, in fixing the time within which to present and file claims, and in causing notice thereof to be given, could, in that notice, also have fixed a time and place for the adjudication
The only other question in connection with this point is that of a meritorious defense. For, bad the court, upon a proper and regular proceeding, adjudicated the claim upon some sufficient evidence to' support it, the order of allowance would not be set aside to let in a defense if the defense tendered is not meritorious. The defense here tendered is that the debt upon which the claim of the bank is based was incurred in violation of the Constitution and of the statute. The constitutional provision (article 14, sec. 3) relied upon provides that “no debt in excess of taxes for the
The order or judgment of the court below allowing and adjudicating the claim of the Utah National Bank of Ogden is therefore reversed and vacated, the court directed to fix a day for a hearing of the claim, to cause notice thereof to be given to counsel for the bank and counsel for the protestants, and to hear and determine the rights of the parties with respect to such claim. Oosts to appellants.