*1 304 case, except
the facts for the names parties, were identical to those in Minerals,
Kellch 2d v. Western P.2d (May, 1971),
484 726 and that court,
reversal of matter would Consequently
be moot. we hold that case, supra,
decision in the Kellch written Tuckett, dispositive Mr. Justice
case here.
CALLISTER, TUCKETT, J.,C. and
ELLETT JJ., Romney, Atty. Gen., Vernon B. Lauren Utah, Appellant, STATE of Plaintiff Beasley, Gen., Atty. N. Asst. City, Salt Lake plaintiff appellant. for CALLAHAN, John Michael Defendant Respondent. Findley Gridley, Ogden, P. for defendant respondent. CALLISTER, Chief Justice. appeals prose- from a criminal cution, court, tried before the wherein de- guilty. fendant was found not Defendant was tried for a violation of 76-28-54, U.C.A.1953, an indictable Specifically, charged misdemeanor. he was wilfully unlawfully resisting with public discharging attempting officer in discharge duty making of his office in a lawful arrest. decision, ELLETT,
In a the trial court memorandum (concurring). determined: dismissing I concur in There that the section under was no order made
I therefore hold affect- attempting State, make which the officer was nor nullity did the and therefore an defendant make arrest *2 arrest, may fact, the which the defendant In unlawful indictment. information resist; there and the defendant is found not was no information to or indictment quashed. be guilty for that reason. The defendant tried under was a complaint; complaints and since had vigorously urges appeal, On the State long prior been in use to in the statute First, points: legislature has made two the question, by omitting one would think that authority delegation of to a constitutional complaint from subsection (1) of Section to the of Parks and Recreation Board State 77-39-4, (cited U.C.A.1953 the appropriate regulations governing enact opinion), legislature the to did not intend Second, system. the park use of the state permit appeal by an to be taken the State holding defend- trial court erred in that the complaint. even quashes when the court a right ant had a to resist arrest. may It judge be that in the was error U.C.A.19S3, 77-3SM-, provides that finding in guilty the defendant not because may by appeal be taken the State: thought he the was How- statute invalid. in judgment of dismissal (1) From ever, that give right does not the State upon of the favor defendant to quash the information or indictment. If the fears rulings State similar in the arresting (2) judgment. From an order future, suppose I it could cause a declara- judg- (3) From an order made after tory judgment action to be filed the affecting the substantial of ment proper Board of Parks and Recreation in a the state. case and validity thus the have on of the statute.
(4) From an order of the court direct- jury the find for the to defendant. (dissenting). predicated appeal The has not State its my opinion It is that should court upon any foregoing grounds.1 of the is, appeal therefore, dismissed. presented appeal: decide the (1) issues on authority
as to the
Board
of the
of State
HENRIOD, JJ„
TUCKETT and
Parks and
appropriate
Recreation
enact
Weggeland,
230,
229,
(1967).
1. Hurtman v.
19 Utah 2d
above,
governing
Pursuant
I
said
regulations
the use of
State
what
on
stated,
System;
challenged
either
of
bases
I think we should
relating
regulation
consider and rule
the merits of the
presented
appeal;
a state
issues
on
and that a
use and control of animals within
fortiori,
park.
because of the combination of both
cases,
par-
we should do so. This is more
is
persuasive
The first and
reason
most
so,
ticularly
in-
because the defendant has
justified
subsec-
appeal
that
under
opposition
dicated no
adjudication,
to such
77-39^1,
tion
in
(3) of Section
quite
understandable because there
appealed from
main
The order
can be
jeopardy
no further
to him in this
affecting
was one: “made
Thatcher,
case. See State v.
rights of the
I
the substantial
State.”
Recreation to enact reasonable and
priate regulations governing the use *3 System. The difficulties exist and the mischief which could would NORTH TEMPLE INVESTMENT CORPO- power not result if Board did al., RATION et Plaintiffs Respondents, regulations are so enact and enforce such any require obvious as not to elaboration. CORPORATION, body SALT LAKE CITY if dis- The second that we politic, County, body and Salt Lake cor- porate politic, Appel- Defendants regard formality verbiage go to the lants. done, the effect of
substance of what was of the trial court was proceeding a basic chal- thus make lenge charge. This effect is the same whether made upon the court’s
motion of the defendant or Therefore,
own motion. a review purpose of
dismissal would come within
subdivision as of Section 77-39-4