173 P. 285 | Utah | 1946
Proceeding in mandamus brought against the defendants, the town of Plymouth and its officials hereinafter called the town, to compel the defendants to extend the water mains of the town to the plaintiff's residence located within the town limits, and supply him with water. The district court denied the writ, and the matter comes before us on appeal.
The town, located in Box Elder County, was incorporated for the purpose of obtaining a federal loan, via a public works authority project, to build a culinary water system. After incorporation the town approved two bond issues and thereby obtained the loan which financed the installation of a water system that supplied culinary water to every home within the limits of the town with the exception of the plaintiff's home. When the town refused to extend a service pipe to plaintiff's house he brought a writ of mandate in which he alleges that he and his family are in great need of culinary water; that he has demanded that the town extend their water main to his property, a distance of 1320 feet, for the purpose of supplying him with water from the town-owned system. He further alleges that he has paid taxes amounting to $194.85 since the incorporation of the town and that the defendants have arbitrarily refused to provide his home with town water.
The town answers alleging that the supply of water is limited and that there is not enough to supply the plaintiff; that the town has no money with which to pay for the extension of the line which will cost $1000; that a bond election would be necessary to provide the necessary funds and that the town officials do not control the voting power. It *360 is denied that the refusal to deliver water to the plaintiff was arbitrary.
We shall dispose of the appeal by a decision of the question as to whether mandamus will lie in this case. Mandamus will not lie to compel the performance of acts necessarily involving the exercise of judgment and discretion on the part of the officer, board or commission at whose hands performance 1, 2 is desired. The court may, under proper circumstances, require an inferior tribunal to exercise its discretion but will not prescribe how it shall do so. The court cannot substitute its own judgment for that of the tribunal to which the discretion was committed by law. The writ can be used only to compel an officer or town officials to perform a duty, a ministerial act or an administrative act, about which it would have no discretion.Board of Education of Salt Lake City v. Burgon,
"An extension of the water system is sought upon the ground set forth in the response brief of counsel for the appellee in the following language: `We say that the distance he lives from the water main does not determine the question of whether or not he is entitled to the service. If he lives within the city limits, he is entitled to it, and limitation, that is to say, if he lives within the municipal boundary, is decisive of the question. The distance of his residence from the water main or from the source of supply determines nothing."
The court held:
"It is our opinion that this position is untenable. We think the question of the extension of the water system from one part of the city where the water mains are laid to another part of the municipality which comprises new territory taken into the corporate limits is within the discretion of the municipal authorities, and unless an abuse in the exercise of their judgment in that regard is manifest, then their decision of the question is final. Certainly it is not the law that a resident of a municipality, living in a remote corner thereof, may compel the city authorities to extend its water mains to his premises * * * merely because the citizen resides within the boundaries of the municipality. The extension of the water system from one part of the city where already laid to another part depends upon the reasonableness of such extension, considering the demand for it, the number of water subscribers, and the revenue to be obtained from furnishing the water." *362
See also 18 R.C.L. 244, 27 R.C.L. 1409; Lukrawka v. SpringValley Water Co.,
Unless the town authorities are shown to have failed to exercise judgment or discretion such that a refusal to extend the water system would be unreasonable their decision is final. SeeLawrence v. Richards,
McDONOUGH, PRATT, WADE, and WOLFE, JJ., concur. *363