Cypert v. Washington County School District , 24 Utah 2d 419 ( 1970 )

HENRIOD, Justice

(concurring and dissenting).

I do not disagree with the main opinion*? statement that the bond issue authorized by Washington County is valid, since it was not attacked within the statutory period,— as is pointed out in paragraph three thereof, and I agree that this particular bond issue is not controlled by the decision of the Kolodziejski case.

However, I dissent from the decision in the instant case for other reasons, principally because it is premature. There is nothing before us except the validity of the Washington County bond issue, and the opinion here should say so, and then stop. To “proceed upon the assumption that upon the issue mentioned [general obligation bonds], it [City of Phoenix v. Kolodziejski] is controlling in this case” is not at all proper or germane to the only matter we have before us. It simply is an announcement that we will decide a future case not yet filed in this court, on a legal principle that is in no way pertinent to our only issue on appeal, i. e.', the validity of some bonds that were approved and became invulnerable to attack almost a year before what I think was an untenable, illogical and unsound conclusion in Kolodziejski. For this court now to adopt and quote that case as the law in this case, as the majority does, when that case by its own terms and by the statements of the main opinion is shown to be not pertinent, simply is to indulge prematurely in a bit of anticipatory stare de-cisis, — which this court has no authority or justification in doing.

I believe we are somewhat chumpy in deciding an issue not properly before us, by indulging in a sort of popularity contest in order to satisfy “the expressed desires of the parties,” — as is so aptly put by the main bpinion. In doing so we neglect the “desires” of the man who owns his home, jeopardized by a bond issue. Not only have we neglected that man but so have the principals in this one-sided lawsuit, which has all the earmarks of being a tailor-made suit, with no resemblance to a true adversary proceeding. Had a real property taxpayer had a friend in this lawsuit, the latter would have pleaded in the answer the provisions of Title 11-14-12(5), Utah Code Annotated 1953, as a defense to this action, — which unpleaded statute is the very basis upon which the majority opinion judiciously spotted and correctly cites in approving the Washington bonds. Had such a defense been pleaded, the complaint would have been the victim of a sudden demise and interment long before the birth of the Kolodziejski infant.

The main opinion pretty much concedes that we are dealing with something that is not really before us when it decides this case upon the authority of Kolodziejski, as well as on the limitations statute. Its footnote 3 has to do with sanctions as to strictly “moot” cases. The opinion cites no Utah authority for the procedure or propriety it approves. In proceeding as we have in this case by deciding a future case not before us, we introduce a new principle into Utah’s jurisprudence, — that if a couple of litigants express a desire to have a problem of importance to the public decided by this court, they need but bring a suit for an injunction against someone, or anyone, which injunction surely will fail. He can then ask, as was done here, that we decide some other matter having no pertinency, and which hasn’t happened, but might, although, as was the case here, no other remedies at law are not shown to be unavailable, no offer to indemnify against a wrongful injunction is offered, and no jurisdiction for timeliness of appeal is alleged or shown. That is this kind of a case, and the decision here is just what it says, “to satisfy the desires of the parties,” and any suggestions anent expedition and desired results of an early decision. One thing can be said about our decision. It satisfies the desires of litigants and their counsel on both sides, the Washington County Commissioners whose bonds are valid, the issuing bond brokers and their counsel, the voters who can vote with the knowledge that not they, but only the real property voters, may have to pay the piper, as it also satisfies those who are hell bent on socializing this country on its way to bankruptcy, and those of the judiciary who approve of Kolodziejski, with full ken that their robes and Cadillacs will suffer no whit when the sheriff executes the mortgage on the widow’s mite, — the farm. This, then, leaves only an alternative for the mortgagor, unrepresented in this case, to try and sell his home lest Ko-lodziejski burgle it.

Under the Kolodziejski case a person with a $20,000 Rolls Royce, but no real property, could vote for an ill-conceived swimming pool bond issue upon which he would have no liability, while his next-door neighbor, owning a $20,000 home, might lose it if he either does not pay taxes to retire the bonds, or if for any reason the bonds are defaulted. It is inconceivable to me that the majority of the Supreme Court would fail to recognize the gross discrimination created by its decision.

Finally, this court should decide this case under the provisions of the Tenth Amendment. The United States Supreme Court in the above case did not once mention the Tenth Amendment, which in my opinion takes precedence over the questionable legitimacy of the Fourteenth Amendment, as adverted to in the Lonesome George concurrence of Mr. Justice Ellett. The fallacy of the Kolodziejski case is its implication that because the court questionably had corrected a voting right discrimination by its “one-man one-vote” case, that that result is justification enough to sanction a gross discrimination against one class of property owners in favor of another class of property owners, as is the case here. I am no prophet, seer or revelator, but I think that one day the court is going to have to swallow Kolodziejski and eliminate the very discrimination it has now created or else doff its wig in tribute to inconsistency, il-logic and suffocation in the socio-economic quicksand of unprecedented constitutional precedent. There is nothing in that case that says the Tenth Amendment does not apply in this case. I am in favor of deciding this case under principles clearly stated in the latter Amendment, and if this issue, undecided in the instant case, is open to question, the people should be told exactly how the highest court in the land feels about states’ rights. Thus, at least we may gain an insight into what will be felt about the states’ judicial systems, and could, perchance, guess as to the length of time it will take for us to expect state judicial rigor mortis to set in, resulting in a closed-shop federal judiciary, divorced from any amenability to the people who thought they had authorized not the one, but the two independent systems. (Emphasis added.)