67 P. 791 | Utah | 1902
Lead Opinion
The petitioners made application to this court for a writ of certiorari commanding one of the judges
It appears from the certified record that originally the petitioners, Salt Lake City et al., brought an action in that court against the respondents, Salt Lake City Water & Electrical Power Company et al., to quiet title to the water of the Jordan river, and to the right to store the same in the river and Utah Lake. The power company filed an answer in that action, and by counterclaim set up a right to the use, for power-creating purposes, of the water of the river, theretofore appropriated by the plaintiff city, by virtue of an appropriation in accordance with the statute. The power company also instituted condemnation proceedings to condemn the right to make connection with the canal of the city for the purpose of discharging the water, after use by the power company, through a flume across the river, into the canal opposite the respondent’s power-creating plant. Thereafter, in these suits, the power company moved the court for permission to construct its flume and connect it with the canal pending the condemnation proceedings; and at the hearing of the motions the court entered an order permitting the power company and its receiver, pending the action, or until the further order of the court, to occupy the city’s premises and make connection of the flume with the canal, and to discharge the water, after use by the power company, through the flume into the canal, upon executing and filing in the court a bond, to be approved by a judge thereof, in the sum of $5,000. This action of that court the petitioners now seek to have reviewed by means of the writ of certiorari, insisting that they have no other plain,
The petitioners insist that section 3597, Revised Statutes 1898, which is relied upon to support the action of the court in the premises, is unconstitutional and void, in so far as it authorizes the taking of possession of property sought
We are aware that the decisions of the several states respecting the question above determined are not all harmonious and are irreconcilable, but the decided weight of authority, where the constitutional provisions on this subject are similar to ours, doubtless sustains the conclusion reached herein. In
Tbe remaining question of importance presented herein (tbe same relating to section 6, article 11, Const.) was passed upon in tbe case of Salt Lake City v. Salt Lake City Water & Electrical Power Co., 24 Utah 249, 67 Pác. 672, and requires no further discussion here.
We are of tbe opinion that tbe action of tbe court below in tbe premises was neither in excess of jurisdiction nor erroneous, but was in pursuance of authority, and the order in question must be affirmed, with costs. It is so ordered.
Dissenting Opinion
(dissenting). — It appears that Salt Lake City many years ago constructed tbe canal in question, which extends from its connection with tbe Jordan river, a distance of over twenty miles, to said city, and acquired a vested right to divert from tbe river, and conduct through tbe canal, for
The petitioners’ counsel contend that the court, in granting said order, exceeded its jurisdiction. It is a fundamental principle that no one shall be deprived of his property without due process of law. It is stated in 10 Am. and Eng. Enc. Law (2 Ed.), 289, 290, that “it is so well settled as to be considered elementary that the terms ‘by due course of law’ and ‘by the law of the land,’ are synonymous with ‘by due process-of law;’ ” and numerous cases are cited in note 1, which fully support that statement. In Black, Const. Law, section 151, it is stated that “it is well settled by repeated decisions of the courts that the two terms ‘due process of law’ and the ‘law of the land’ are of exactly equivalent import.” Judge Cooley, in his work on Constitutional Limitations, at page 430, states that: “Indeed, the language employed in^he various Constitutions is generally nearly identical, except that the phrase ‘due process (or course) of law’ is sometimes used, sometimes
It is clear, both on principle and from the authorities, that the order permitting the electrical power company, pending the action, to occupy the premises sought to be condemned, and to do such work thereon as may be required for the easement sought, and to connect its flume with the city’s canal, permitted the taking of property; and as the issues controverting the right to condemn said premises were not decided before said order was granted, and are still pending for trial, the performance of the acts mentioned in the order would deprive the city of property belonging to it without due course of law, and therefore the court, in granting the order, exceeded its jurisdiction. If, upon the trial, these issues shall be decided in favor of the city, then the fact that the order permits the commission of a trespass will be emphasized.
Counsel for the electrical power company state in their brief that: “Within the meaning of the .Constitution, the property, although entered upon pending the appeal, is not taken until the compensation is ascertained in some legal mode, and, being paid, the title passes from the owner.” To support this contention they quote from the opinion in the case of Kennedy v. City of Indianapolis, 103 U. S. 599-604, 26 L.
There is an irreconcilable conflict as to whether or not statutes which authorize the court to grant orders similar to' the one in question are constitutional. I know of no case which holds that in an action to condemn property for public uses, when the right to condemn was in issue, that such an order is permissible. It is not so held in any of the cases cited by my associates.
As to whether, in an action to condemn property, when
As the court, in this case, in granting the order, exceeded its jurisdiction, the writ prayed for should be allowed.