81 P. 273 | Utah | 1905
This is an application to obtain from this court a writ of prohibition' restraining Salt Lake City and its mayor, recorder, and treasurer from issuing, negotiating, or selling the municipal bonds hereinafter referred to.
The material facts, as presented by the petition of the relator and the answer of defendants, are as follows: On the 21st day of November, 1904, the city council of Salt Lake City duly passed an ordinance which was approved by the mayor of the city, which ordinance provided for and ordered a special election for the purpose of submitting to the qualified electors of said city the question of incurring a bonded indebtedness to the amount of $1,000,000 for the purpose of making necessary extensions in its sewer system, and of procuring a permanent and adequate increase in the water supply of the city. Hie present supply during the minimum flow, which is approximately 10,000,000 gallons per day, is estimated to be about one half enough to properly supply the present jiopulation of the city. Notice of such special election was given, to be held upon the 3d day of January, 1905 ; and thereafter the returns of said special election were duly • canvassed by the city council of said city, and it was declared hy the said city council that sufficient votes had been cast by qualified electors to authorize the issuance of the bonds. Previous to said election, for the ptirpose of presenting to the qualified 'voters of Salt Lake City the object and purpose of the issuance of said bonds, and a plan to be pursued for the acquisition of an additional water simply and an extension of the sewer system, an address, under the authority of the mayor and city council of Salt Lake City, was issued to the taxpayers of Salt Lake City, a copy of which is attached to and made a part of the petition herein, and in which address
The most serious objection urged by relator to the proposed issue and sale of the bonds in question is that the water rights which will be finally obtained by the city under the option contracts, when completed and effected by sale and exchange, are not absolute rights, but that such sale and exchange are subject to forfeiture in the event of certain contingencies, and that the interest which the city will finally acquire from sale and exchange of the waters by virtue of the option contracts is not such an ownership and control as is contemplated by section 4, article 14, of the Constitution of the State of Utah, which, so far as material here, provides as follows:
“That any city or town, when authorized as provided in section three of this article, may be allowed to incur a larger indebtness, not exceeding*365 four per centum additional for supplying sucli city or town with water, artificial lights or sewers, when tbe works for supplying such water, light and sewers, shall be owned and controlled by the municipality.”
In determining the question presented by relator’s petition, we must construe the foregoing provision of the State Constitution in connection with section 6, article 11, of the same instrument, which is as follows:
“No municipal corporation shall directly, or indirectly, lease, sell, alien or dispose of any waterworks, water rights, or sources of water supply now, or hereafter to be owned or controlled by it; but all such water works, water rights and sources of water supply now owned or hereafter to be acquired by any municipal corporation, shall be preserved, maintained and operated by it- for supplying its inhabitants with water at reasonable charges, provided, that nothing herein contained shall be construed to prevent any such municipal corporation from exchanging water rights, or sources of water supply, for other water rights or sources of water supply of equal value, and tó be devoted in like manner to the public supply of its inhabitants.”
It is conceded that the mountain water which the city will receive by the exchange is much more valuable for municipal purposes than the Utah Lake reservoir water, and that the superior quality of the mountain water for culinary purposes will fully compensate the city for the excess in -amount which it will be obligated to furnish the farmers from Utah Lake. The power and authority of the city to thus contract for and exchange its Utah Lake water, which is an inferior quality and wholly unfit for household purposes, for a superior quality of mountain water, is expressly conferred by section 6 of the Constitution, unless it can be said that the transfer and exchange of water as contemplated would fail
We are of the opinion that, when sales and exchanges of the rights of the respective parties are made in and to the use of the waters, the forfeiture clause, being but a condition subsequent, is not obnoxious to the vesting of title and ownership in the city to the mountain water which it has received in exchange for lake-water;' and it is settled by the great weight of authority that when real estate is sold upon a condition subsequent, as the farmers propose to do in this case, the fee is transferred to and remains in the grantee until a breach of the condition and a re-entry by the grantor; that is, such a sale carries with it all the attributes and incidents of absolute ownership until the condition is broken. (Towle v. Remsen, 70 N. Y. 303; Vail v. Long Island R. Co., 106 N. Y. 283, 12 N. E. 607, 60 Am. Rep. 449; Bouvier v. Baltimore & N. Y. R. Co., 60 L. R. A. 750, and cases cited in note; 13 Cyc. 690; 1 Jones, Neal Prop. in Conv., sec. 620.) In Shattuck v. Hastings, 99 Mass. 23, the rule is tersely, and, as we think,, correctly, stated as follows:
“A deed of land upon conditions subsequent conveys the fee with all its qualities of transmission. The condition has no effect to limit the title until it becomes operative to defeat it. Subject to this contingency, the estate will pass by deed or mortgage in the same manner and to the same extent as if no such incident were attached to it.”
There are other objections made to the issue and sale of the bonds by the relator, but as the questions raised by such objections are without merit, and in no way affect the validity of the bonds, we deem it unnecessary to discuss them.
As heretofore stated in an oral opinion in which our conclusions were announced in this case, we are of the opinion that the provisions of the Constitution and the statutes authorizing the issue of this character of bonds have been substantially complied with, and that the bonds in question are valid. The petition of relator will therefore be denied.
It is so ordered.