175 P. 654 | Utah | 1918
Salt Labe City, a city of the first class, hereinafter called respondent, commenced this action in the district court of Salt Lake County to enjoin the board of education of Salt Lake City, John Anderson, and Charles L. Carien, hereinafter styled appellants, “from proceedings further in the construction” of a certain school building until the ordinances hereinafter referred to shall have been complied with.
The respondent in its complaint, after alleging the necessary matters of inducement, and after setting forth those portions of the city ordinances which it was alleged were being violated by the appellants, sets forth its
“That on or about the 1st day of June, 1913, the defendant board of education of Salt Lake City made and entered into a contract with the said John E. Anderson and Charles L. Carien for the erection of a three-story nine-room annex to the Sumner school building in Salt Labe City, Utah, and as plaintiff is informed and believes, and therefore alleges, said contract was made in disregard of the said building code of Salt Labe City, and was made by said board of education with full knowledge that the specifications for said annex to said school building were not in conformity with said building code, and particularly with sections 275 and 280 thereof, which sections were thereafter violated by said board of education, its officers and agents, in proceeding with the erection of said three-story annex to said Sumner school ■ of Class C, or nonfireproof material, instead of Class A or Class B, or fireproof construction, as required by said sections, which are hereto attached, marked Exhibits A and B, and made a part of this complaint.
“That notwithstanding the provisions of section 258 of said ordinance requiring the taking out of a permit from the building inspector of Salt Lake City, neither said board of education nor said contractors have secured a permit for the construction of said school building, as required by said ordinances, but have proceeded with and are now engaged in*543 the construction of said nonfireproof building, and will continue and complete the construction of said building under said contract unless restrained by this court, without taking out a permit as required by said section, which section is as follows:
‘ ‘ ‘ Sec. 258. Permits. — No work except minor repairs shall be done upon any structure, building or shed in the city of Salt Lake without a permit from the inspector of buildings.’
“That plaintiff believes, and therefore alleges, that the failure of said contractors to secure said permit is due to the refusal of the said board of education to recognize the power of said plaintiff to make and enforce said building regulations, and the claim by said board that such building regulations are inapplicable to said school building or to any school building erected under the authority of said board.
“That notwithstanding the provisions of section 435 of said ordinance requiring the placing of fire alarms or telephones in all school buildings in Salt Lake City, the said board of education has made no provision for the placing of a fire alarm or telephone either in said annex or in the existing Sumner school building in compliance with said ordinance, but has refused to do so, and as plaintiff is informed and believes, and therefore alleges, said board of education will continue to refuse to comply with said ordinance unless required to do so by an order of court. Said section 435 is hereunto attached, marked Exhibit C, and made a part of this complaint.”
The appellant interposed a general demurrer to the complaint which was overruled. They elected to stand upon their demurrer, and judgment was duly entered enjoining them—
“from proceeding further in the construction of the three-story annex to the Sumner school building in Salt Lake City, Utah, until the said defendants, their employees, servants, and agents, have complied with the ordinance of Salt Lake City in respect to requiring the securing of a permit for the construction of said building from the building inspector of Salt Lake City, and requiring the installation of fire alarms*544 or telephones in said school building, and requiring the construction of said building of fireproof material in compliance with the ordinances of said city, or until the further order of this court.”
To reverse the judgment appellants prosecute this appeal and insist that the court erred in overruling the demurrer.
The ordinances referred to classify the buildings and prescribe the character of the material that shall be used in the construction of each class, and also provide how the building shall be constructed with respect to entrances and exits, etc. In short, the ordinances constitute a complete building code.
The ordinances in question here are based on Comp. Laws 1907, section 206, and more particularly on subdivisions 55 and 56 of that section. Subdivision 55 provides that the city commission shall have power—
"to define the fire limits, and prescribe limits within which no building shall be constructed except of brick, stone, or other incombustible material, without permission, and to cause the destruction or removal of any building constructed or repaired in violation of any ordinance, and to cause all buildings and inclosures which may be in a dangerous state to be put in a safe condition or removed.”
Subdivision 56 provides that the city commission shall have power—
"to prescribe the manner of constructing stone, brick, and other buildings, and the construction of fire escapes; and to cause all buildings used for public purposes to be provided with sufficient and ample means of exit and entrance, and to be supplied with necessary and appropriate appliances for the extinguishment of fire, to prevent the overcrowding thereof, and to regulate the placing and use of seats, chairs, benches, scenery, curtains, blinds, screens, or other appliances therein.”
The ordinance respecting fire limits, which is referred to in the complaint, among other things, provides:
"There shall be a fire alarm or telephone directly connected with the fire department in all theatres, moving picture buildings, school-houses,” etc.
“The question for decision is as to whether the plaintiff city, acting in pursuance of the police powers conferred upon it by general law, may impose building restrictions or regulations upon the defendant board of education in the erection of school buildings. The reasonableness of such regulations is not questioned, but the defendants contend that the school board is exempt, inasmuch as it is created by an act of the Legislature as an independent board, whose powers are co-ordinate with those of the city commission. It is not contended that the defendant school board has any measure whatsoever of police power, but, on the other hand, that the police power extending over school property still resides in the state, and that the general grant of police powers to the plaintiff does not extend to school buildings, but only to private property. It is likewise conceded that there is no express provision of the statute exempting the defendant board from the police power granted to the city, but that it is to be gathered from the general statutes of the state conferring certain police powers upon that board.”
Upon the other hand, counsel for respondent contend that by the several statutory provisions we have quoted plenary power is conferred on cities with respect to regulating the construction of all public buildings within those limits, which includes all school buildings. In support of their contention counsel cite and rely on the ease of Pasadena School District v. City of Pasadena, 166 Cal. 7, 134 Pac. 985, 47 L. R. A. (N. S.) 892, Ann. Cas. 1915B, 1039.
While at first blush the case from California seems to sustain respondent’s contention, yet, after a careful examination and consideration of the constitutional and statutory provisions of this state, we are constrained to hold that there is a substantial difference between the statutes of California on which that decision is based and those of this state. We entertain the highest respect for the decisions of the Supreme Court of California, and where a question has been squarely
Article 10 of our Constitution, entitled “Education,” provides that the control of the public school system, which includes all schools of whatever kind or grade, is vested in the Legislature. Comp Laws 1907, sections 1892-1961, place the control of the public schools in cities of the first and of the second class in the boards of education of such cities. Section 1913 of that compilation, among other things, provides:
“The board of education shall have the power and authority to purchase or sell schoolhouse sites and improvements thereof; to construct and erect school buildings and to furnish the same; to establish, locate, and maintain kindergarten schools, common schools, consisting of primary and grammar grades, high schools, and industrial or manual training schools; to establish and support school libraries; to purchase, exchange, repair, and improve the high school apparatus, books, furniture, fixtures, and all other school supplies in said schools.
“It shall * * * have the power to * * * do all things needful for the maintenance, prosperity, and success of the schools, and the promotion of education.”
Section 1962 provides for compulsory attendance at the public schools, both in country districts and in cities. There are also limitations imposed on school boards by which taxes to provide funds for buildings and for all other purposes cannot exceed the amounts specified for any tax year. There are also other statutory provisions whereby certain powers are conferred on the boards of health respecting the regulation of health, etc., of public schools. If, therefore, all of the foregoing provisions, as well as some that are merely inci
Respondent’s counsel, however, contend that the power of police regulation is exclusively vested in the cities and that the boards of education possess no such power. Counsel further direct our attention to the fact that the decision in the California case to which we have referred is based upon that fact.
While, as before stated, we entertain the highest respect for the decisions of the Supreme Court of California, yet when, as here, there is substantial difference between our statutes and those of that state, we may not escape responsibility by merely following the decisions of that court.
Nor is the mere fact that no police powers are vested in the boards of education decisive of the question of whether the state has in fact surrendered to the cities plenary
Counsel for respondent insist that such power is clearly conferred in the several subdivisions of section 206, which we have quoted. A careful reading and consideration, however, of the provisions contained in subdivisions 55 and 56, supra, in our judgment clearly shows- that it
Counsel for respondent contend that all of the common school buildings within cities are necessarily included within those terms. Whether such is the case or not is, however, in view of all that is contained in our Constitution and statutes concerning our public school system, a matter of construction: As before stated, the control of our public school system remains with the Legislature, "except where such control is expressly or by necessary implication conferred on some other power. The law with respect to where the control of public schools in this country is lodged is very- clearly and correctly stated in 19 R. C. L. p. 765, section 71, in the following words:
"Essentially and intrinsically the schools in which are educated and trained the children who are to become the rulers of the commonwealth are matters of state, and not of local, jurisdiction. In such matters the state is a unit and the Legislature the source of power. The authority over schools and school affairs is not necessarily a distributive one to be exercised by local instrumentalities, but, on the contrary, it is a central power residing in the Legislature of the state. It is for the lawmaking power to determine whether the authority shall be exercised by a state board of education, or distributed to county, township, or city organizations throughout the state.”
In referring to the principle on which the police power in cities is based respecting the regulation of buildings, etc., Mr. Freund, in his excellent work on Police Power, in sections 140, 141, states the law thus:
' * The principle of delegation seems to be to make the municipal police power coextensive with local dangers arising from the close aggregation and contact of persons and property in a limited space or territory. This principle of delegation may be fitly recognized as a principle o-f construction of charter powers, which should, if consistent with their wording, be given an effect adequate to meet local dangers by appropriate and customary measures of restraint or requirement.”
In connection with the principles just quoted, another one must not be overlooked which is admirably expressed by the Court of Appeals of Kentucky in the case of Kentucky Institution for Education of Blind v. City of Louisville, 123 Ky.
"The principle is that the state, when creating municipal governments, does not cede to them any control of the state’s property situated within them, nor over any property which the state has authorized another body or power to control.”
Recurring now to the language which we have quoted from section 206, it must, on only slight reflection, become apparent to every one that the sweeping language relating to the overcrowding scenery, curtains, blinds, screens, and other appliances was not, and could not have been, intended to apply to the public school buildings. To do so would make the statute wholly inapplicable and unreasonable. Moreover, such a construction would result in practically robbing the boards of education in cities of the control of such buildings. The statute, therefore, cannot be given a literal construction and application. At all events it would, in a large measure if not entirely, confer the power of control upon the city authorities. To do that was manifestly not the intention of the Legislature. If, therefore, we apply the doctrine announced by the Court of Appeals of Kentucky, to which we have referred, we are forced to the conclusion that the Legislature did not intend to cede the control over public schools to the city authorities, but intended to, and did, confer that power upon the boards of education of such cities.
Again: As we have seen from the excerpt' quoted from Freund on Police Power, supra, the police power conferred on cities should be construed and applied so as
We are also required to take judicial notice of all matters which are known to all the inhabitants of our cities. Every one knows that our public school buildings are not located in the business districts of the cities nor yet in the most densely populated portions. By that we mean in
There are, however, still other cogent reasons why our public school buildings should be excluded from the control of the city authorities except as hereinafter stated.
We have already called attention to the fact that upon the one hand the boards of education are restricted by the statute in providing funds for school buildings as well as for other school purposes. In other words, the amounts that such boards may provide by taxation are strictly limited. Upon the other hand, those boards are required to provide adequate school room and school facilities to carry into effect our statute respecting compulsory school attendance. These requirements, in many instances, could not be met if the cities should be permitted to enforce the ordinances which are sought to be enforced in this proceeding, and which the district court has enforced. Here, again, we cannot overlook facts known to all. For example:
It is known to every one that the school population in our cities is numerically greater in each succeeding year; that such growth generally extends over the entire residence portions of the cities; that such growth, while in many instances too large to be accommodated in the existing
All these facts are as well known to the legislators of this state as they are known to all others, and hence we must assume that in framing the school laws, in fixing the limitations respecting taxation, in conferring powers on city authorities as well as on the boards of education in cities, the Legislature had all of these matters in
Moreover, we must assume that it was' intended that all the laws which affect our public schools and school buildings must be considered as in pari materia and must be so construed and applied. Further, the fact that the law provides for nonpartisan boards of education; that the members usually are men of experience' and are first-class
Prom a consideration of all of the various provisions relating to our public schools, therefore, we are forced to the conclusion that it was not intended to invest cities with any power over school buildings except in case such buildings should become a menace and a danger as before stated, and that school boards are not required to obtain permits from the cities as contended for by respondent’s counsel.
• There is, however, another question presented, namely, the one relating to the connection of school buildings with the fire department by telephone or otherwise in accordance with the ordinance which we have referred to. In our judgment that is a valid regulation, and is one which the
For the reasons stated the judgment is reversed and the case is remanded to the district court of Salt Lake County, with directions to sustain the demurrer and to dismiss the action; appellants to recover costs.