Utah Power Light Co. v. Ogden City , 95 Utah 161 ( 1938 )

I concur in the opinion of Mr. Justice HANSON. As stated in my opinion in the case of Utah Power Light Co. v. Provo City,94 Utah 203, 74 P.2d 1191, I cannot agree with the idea advanced by Mr. Justice LARSON that the voters of a city can exercise by initiative or referendum any different powers than can be exercised by the city commission. By the initiative the people initiate municipal legislation, and by the referendum they refer it; but in both cases they must act within the powers given to the municipality by the legislature or by the people of the state at large, acting through the initiative. The falsity of that doctrine seems to me to be revealed in his present opinion under a situation where not the commission on its own initiative refers an ordinance, but where the reference is initiated by parties hostile to the ordinance. In the Provo Case where the commissioners themselves referred their own ordinance, it might be contended with plausibility that they made as part of the very ordinance itself its validity dependent on the approval of the people. But in this case, the city commission intended to make an ordinance complete and valid at the time of its passage. I think the people, through the referendum, hold over the ordinance a veto power; but if they do not exercise that veto power but approve it, the force of the ordinance comes from the act of the commission and not from the vote of the people. The people approve or reject. They do not legislate. Certainly, where the Legislature passes an act put to referendum and approved, it cannot be said that the act obtains its force from the action of the people and not from the Legislature.

Therefore, I disagree that the ordinance "receives its life, its vitality, its effectiveness, not from the act of the City Commission but from the vote of the people."