State Ex Rel. Road Commission v. Salt Lake City Public Board of Education, 368 P.2d 468

State Ex Rel. Road Commission v. Salt Lake City Public Board of Education

368 P.2d 468

Utah

1962

Check Treatment

*1 intеrruption of his work habits ing provided jail sojourns his

because of merit.

motive is without could do

The cross-examination char- degrade the defendant’s

more than to against him. jury prejudice

acter and ques- line objection to this

Defendant’s Fail- been sustained.

tioning should prejudicial error.8 do so was

ure to new trial. and remanded

Reversed HENRIOD, McDON-

WADE, J., and C. CROCKETT, JJ., concur.

OUGH P.2d through Utah, by its ROAD

STATE COMMISSION, Plaintiff and

Appellant, BOARD PUBLIC OF CITY LAKE

SALT EDUCATION, Defendant and

Respondent. Budge, Atty. Gen., L. Walter Robert S..

No. Campbell, Jr., Atty. Gen., Asst. Rex J.. Supreme Court Utah. Hanson, Atty. Sp. Gen., appellant. Asst. 5, 1962. Jan. Cannon, Marr, & Wilkins Paul B. Can-

non, Horsley, City, W. Salt John respondent. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍412; Herrera, Dickson, State v.

8. State v. 12 Utah 2d Utah 2d P.2d 1086. summary judgment, ar- plaintiff moved for McDonough, justice. property was as the inasmuch guing Commission, in connec- The State Road merely transferred from one freeway- new construction of tion it was use High- (Interstate through Salt Lake *2 pay. to trial denied obliged The court necessary to the it condemn IS) found whereupon plaintiff’s motion, it this filed Franklin'School, to the Salt belonging interlocutory appeal, that petition urging for was City Educatiоn. Board of Possession position, court ruled to its favorable stipulation pursuant counsel of taken necessity that eliminate the would 20, April an order of thereon to court made damages, trial on the matter of and we compensation the was question of granted petition. the for reserved trial. propo cites authorities for Plaintiff the The Board in its answer asked state, acting that one agency sition of $550,000 the market value the pursuant duty, required to statutory is not appropriation.1 the time of At at its compensation pay public prop to pretrial requested hearing, the defendant erty agency.2 re another state It $709,- and was to amend to allowed ask lies on the case of the School of District theory that entitled on the stated it was 000 Speers Borough of v. Commonwealth of replacement damages cost of equal Pennsylvania,3 wherein the court said: equal quality, a of rather than always been held “(It) that the taking. value of market at the time may take property Commonwealth plaintiff, attorney through gen- The political subdivision or eral, that position took defendant therefor, authorities), (citing compensation entitled was whatso- in such cases ever; in damages the alternative that only grace a matter allow- being be limited those claimed in first Legislature.” ance hearing answer. court then set a others, case and consideration other question, Our to determine the among indicates relied on that the reso- plaintiff required authorities whether should be problem depends such a on property. Thereafter lution pаy Jersey damages quite New Commission of This is 1. the measure N.J.Eq. 221, By Elizabeth, recognized. 102 140 A. See State Orgel, 335; Through Under Eminent Valuation v. Peterson et Road Commission 42; Domain, Ed., al., -, 2 Nichols on Utah 2d p. ; Pennsyl at Sec. 5.9 223 56 Land In re Condemnation of Turnpike A.L.R. 365 Somerset vania Commission v. 643, 910; County, Pa. 117 A.2d A.2d 3. 383 Pa. “separately particular condemned” shall assessed” intent shown pay inquiry and that the taker so the critical sum Therefore volved.4 thirty days.” intended assessed “within legislature our here is whether property should he a school board’s uncertainty If there be as to purposes highway taken for proper application and the meaning it. statute, language its its either power basis for the exercise of express provision failure to make cir Chapter is set forth of eminent domain may op cumstances which it be found to important 34, Title U.C.A.1953. erate, pur proper it is look both to' the legisla- that the to note that the act shows created, pose for which it was and to the require necessity ture had in mind that practical aspects operation its order to use property devoted to one intent.9, determining assist in if it was taken from owner required for different and more plaintiff’s ar gravamen of the awareness, spite of this gument supposed But should not be the method require no distinction betweеn that the made taking public private property. agency, tak necessity under *3 specifi- that true the statute does not state the of com ing should cally pensate be is to whether it because that same as would the it is taken. public agency to the pocket which out of and making distinction between But into putting argument another. This private prop- appear merit, of the method on surface to have some condemnor, erty, requires any the statute and it would validity fact some be, regarded whoever whatever the resources of the state could be exception, argument take all the essential as onе unified is of fund. But the steps sound, required to condemnation. It is that that is not the because fact. fallacy apparent “all owners” taken should The is of when consideration given as complaint;6 legislature be named defendants in the is the means the has property sought of the raising that “value to be created for thе of the funds for Borough Speers 4-8, U.C.A.1953, provides District of of Sec. 4. School 5. 53— Pennsylvania, may “take, lease, hold, of hoards Commonwealth footnote school sell supra; convey Highway personal property” State State and real and Com Cooper, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍24 N. J. missioner 756; A.2d their own names. 78-34-6(2), ex rel. State Com 6. Sec. U.C.A.1953. City Albuquerque, 10(1), missioner v. of 67 N.M. U.C.A.1953. 78-34— 78-34-13, P.2d 8. Sec. U.C.A.1953. Examiners, Bateman v. Board of See P.2d Utah acquisition right way, dis- ex- school operation individual (cid:127)the com- tent of about provided a the total cost. While in the state. tricts 90% par- rais- fact that the federal is plan government finely balanced prehensive and dis- road ticipating school cost because the the various ing the funds for n tricts the benefit of in con- nation has no bear- entire responsibilities delegated and ing on in- determination issues management legal and raising nection volved, and boards. would in evi- school not be admissible funds to various dence, point dramatically it does up in the school how funds so collected 'The tax n districts congruous inequitable general it would are not covered into impose govern- the state the entire cost of the running fund for the upon collected this large, but are individual school ment at board. purpose operating

(cid:127)particular the language From do- the eminent state individual (cid:127)schools. statute, upon main as well basis n asthe Road Commission over reach could purpose practical application, it is our Franklin this property such as take legislature conclusion that intended thousand hundred School, several worth of the character of this n dollars, from a boаrd, single school Franklin should taken and com- plan disrupt the balanced pensated the same as it had been if. matter practical aAs schools. financing of taken from owner. insuperable obstacles create Affirmed. No costs awarded. schools. their in managing boards express words either see We WADE, CROCKETT, J., J„ con- C. purpose in its nature cur. intended that the suggests which result. any such HENRIOD, (dissenting). Justice apparent more even incongruity is dissenting, amI convinced is not project is realized when it cannot stand the test of cor- part of a federal highway but just a state statutory construction, import rect or the being constructed system which interstate *4 stare decisis. United the whole only for Utah but for Board Education an by recognized agency principle This States. state,1 subject plenary to its participating control and which is government, federal elimination, Obviously if so determined.2 construction, including cost of “ ‘Municipalities Education, are the creatures of the Bingham Board of v. state, powers given (1950). and the to them are 582, 223 P.2d 423 Utah property. hang on Title using gov- in a must hat 78— was the school the Board seriously Therein is found! capacity,3 34-3(3), ernmental and no one or not at all. only be All' property. would contend seems to reference obviously other highway concеded that the interstate sections deal with property charged procedure with and the its condem- a more very upon nation. The title section of the agencies are involved. Two of the state respondent which relies reads as follows: event, by legislative that one which taken,”' property may “Private which be facility sanction is interdicted to construct a preamble is that “The- and its effect prevails.4 necessary use, having more private property may taken under which be obvious, chapter includes.” It seems 1, Sec. 22 of Art. the Utah Constitution therefore, that subsection had to do^ (3) prohibits private property private property, compensation.5 public prop with and that refer- Not erty. Respondents that were must concede public property ence to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍do with 78-34, U.C.A.1953, it not and its proprietary Title capacity, held in a subdivisions, Else, need if at all. the section makes no sense. subject to be for the property having here been held in a subject always abridged repealed property purposes used for with sovereign compensating agency who conferred them.’ out therefor.” *** may Property mu In re Condemnation of Land Penn corporation govern nicipal sylvania Turnpike either in its Co., Comm. v. Somerset private proprietary 910, Raybould (Pa.1943) mental or in its ; ca 32 A.2d former, pacity. Hardy, 368, it is held as 7 Utah v. P. state, agency “Certainly, so held maintenance be reclaimed the state at time schools governmental calls for the exercise of compensation.” functions.” Brush v. Jersey Comm., 352, 495, New 500, Comm. beth, Eliza 300 U.S. 57 S.Ct. upon (1937) ; 140 A. 337. “Even 81 L.Ed. Woodcoсk v. Board assumption city Education, that a or town has ac of 183, 55 Utah 187 P. quired ownership (1920), absolute 10 A.L.R. 181 which said agency state, corporations it is held “School districts are with strictly public uses, may powers, merely be trans limited act on behalf govern discharging duty ferred some other of the state in charged duties, educating age with the ment same or it the children of school public purposes, public’ by general to other devoted schools created city Nichols, consent of without-the town laws.” Vol. may belong, 2, p. 223, to which pensation, and without com Sec. 5.9. subject County Liquor 4. Salt Lake since it is Control “ * * * Commission, control.” 56 A.L.R. 366. 11 Utah 2d (1960). Commonwealth has absolute control over agencies power to add to or sub 5. “Private shall not be taken or performed by damaged just duties tract to be use without com- pensation.” or to them abolish them and take the *5 capacity, Agreed. lic use. follows governmental proves This observation compensable whеn trans- except nothing was not however to restate the stat- government ute. explain ferred It does from not anything where n is and better use.6 higher another for said specifically clearly or to the effect compensation must be in such up points this case: All this nub event, when the Constitution indicated purpose intent light оf the obvious In Constitution, 1, Sec. 22 of the State of Art. 2. That the act made no distinction as property with- prevent taking to method in condemning public or compensation, equally with an obvious out property. This statement helpful. not failure to include significant procedural. The act spe- does not assist therein, together with cifically provide case “expressio maxim of the familiar property. Such nonspecificity Title 78-34 alterius” does est exclusio unius does require not any overhauling Art. in- require that the clearly Constitution 22, by Title 78-34. Significantly it compensation pub- require terpreted actually lends stature to the purpose and рrop- taken, “public and make lic intent of the provision constitutional private prop- clearly synonymous erty” obviously and meaningfully did not inter- answer sense ? The in a constitutional erty, dict the taking property without “No.” inescapable to demand seem compensation. This, in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍silent tribute to the call rationale not opinion’s does philosophy that agencies of the state answer. any other are subservient to it. opin- respondent, majority Like requires 3. That act a condemnor 78-34, Title hat on U.C.A. hang must ion steps condemn, to take certain including hat all. But there fact that “all owners” be made defend- opinion, and effect the substance rack. ants, that the “value” shall be “separately support, justifies it- authoritative without assessed,” pay the taker to days. within 30 as follows: self suggestion provisions apply public property in mind” taken for a “the more neces- 1.That use, plain belies necessity may require sary wording of the begs pub- Title, quеstion. Firstly, a more therefor, the consent and vest them in -without other dis tion “With ” district, agencies. People over their tricts ex habitants protests, Community hearing, notice Dixon Unit even without rel. Dist., 2 Ill.2d 118 N.E.2d take school facilities giving compensa- district, in footnote 2. cases See quires part “property,” Board of Education is owner school board’s so-called, prop- therefor, grace save state.7 Its people “that erty belongs disrupt plan not to itself but the balanced argu- state, parents. are its who of schools” “as a financing and that practical the main to disclose matter insuperable ment it would fails create *6 pub- obstacles contemplates private, not for that the act school managing boards in property, subject lic matter. No- their as its schools.” suggestion support in specific implied any where of such can found conclusion does not merit con- any suggestion sideration that the eminent domain from a legal standpoint, since or, applies simply private property, but substitutes anything philosophical a point of best, property state view binding held for legal authority. agency, governmental capacity, in a though S. That even participa- federal Thus, proprietary in but one.8 such here, tion is dramatically uncontrolling suggestion principles does violence to points inequities up the school statutory

constitutional and construction property a higher for and better implications, epitomized and their suggestion in turn suggests Such a sort of “expressio unius” mentioned maxim objectivity complex juri- divorced from above. justification. dical place It no although That there is merit to the decision. to take from argument one state another would take from one pocket opinion gives The main Again: good no argument such put fallacious reason legal decision. cites no the school is not in a unified since authority except fоr it its own voluntary into general things fund coverable fund. conclusion that too dis- then, novelty, rupted con- decided ignores we highway department implications if the cludes ac- constitutional invokes ‘property property “The of the school district’ is a court decides that * * * misleading. phrase proprietary which is district .a or in a property, capacity. facilities, governmental all owns no school proprietary, If grounds, buildings, equipment, must be for. etc., being purposes, governmental in fact law need subject Orgel, the State made the state.” Valuation County Ed., will.” Pritchett Board 2d Under Sec. 42. Trustees, question Ill.2d 125 N.E. B. No one would N. (1955). in the instant case was used municipality anything governmental pur 8. “Where of a for a save municipality’s pose. condemned compensation depends on whether nonspecific stat- completely provisions of a making- justify its rationale

ute to property,

property synonymous with legislatively, when

constitutionally, (Em- simply is not there. synonymity

phasis supplied.)

CALLISTER, concurs Justice, opinion Mr. expressed

view Jus- HENRIOD.'

tice Daly, C.,

Richard G. Washington, D. Richard Shepherd, City, S. Salt P.2d 473 appellant. Respondent, Utah, Plaintiff and Atty. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Gen., STATE Budge, Walter L. Ronald N. Boyce, Atty. Gen., respondent. Asst. BANFORD, Wayne Defendant David *7 Appellant. WADE, Chief Justice.

No. 9395. Wayne appeals David Banford from a judgment and sentence the Utah State Supreme of Utah. Court Penitentiary for a term of not less than one 25, 1962. Jan. years upon plea more than 20 his nor burglary to the crime

guilty the sec- degree. ond appellant discloses that record charged with the others were crime of a service station and burglarizing at the arraignment he was advised time counsel, he was entitled to any plea to charge he need not make procured attorney, and if he he until he could have hours which desired so attorney, could or he waive that get