Startup v. Harmon ( 1921 )

THURMAN, J.

This is an original proceeding in mandamus, praying that a peremptory writ of mandate issue, commanding the defendants, as county commissioners of Utah County, to provide annual funds, not exceeding $10,000 in any one year, to be expended for the partial support of widowed mothers who are dependent upon their own efforts for the maintenance of their children. Plaintiff prays for such other judgment or order as may be legal and proper.

The application for the writ is founded upon the provisions of Comp. Laws Utah 1917, § 3960, as amended in chapter 77, Sess. Laws Utah 1919, which section reads as follows:

“It shall be the duty of the county commissioners of each county in the state, and they are hereby authorized and empowered to provide, annually, funds in an amount sufficient to meet the purpose of this law, ,but not exceeding in any one year the sum of $10,000.00; provided, that in the counties containing a population of 100,000 or more the amount of such funds shall he $20,000.00, annually, such funds to he expended for the partial support of widowed mothers who are dependent upon their own efforts for the maintenance of their children. No part of the funds above provided for shall he expended for administration or purposes other than the partial support of widowed mothers.”

The complaint, in substance, alleges that the plaintiff is a resident and taxpayer in Provo City, Utah county, state of Utah, and is the owner of both real and personal property therein; that the defendants are the duly elected, qualified, and acting county commissioners of Utah county; that said county contains a population of less than 100,000 persons.; that there are residing in said county numerous widowed mothers who are dependent upon their own efforts for the maintenance of their children; that said defendants have wholly refused and neglected to provide funds to he expended for the partial support of said widowed mothers, as provided by law, notwithstanding that plaintiff has requested defendants to provide such funds. It is further alleged in the complaint that there is no other plain, speedy, or adequate remedy at law.

To this complaint the defendants filed a general demurrer and also specially demurred on. several grounds, among which are the following: (1) That plaintiff has no legal capacity to sue; (2) that the complaint is indefinite and uncertain for the reason that it cannot he determined therefrom that plaintiff is a party beneficially interested in the proceeding, nor can it he determined therefrom what amount of funds should he provided, nor whether Utah county has any fund from which such provisions can be legally made. The special demurrer presents other grounds, but in the opinion of the court the grounds above mentioned are the only ones that need be considered in order to determine the questions involved.

Without waiving their-demurrer, defendants, at the same time also filed an answer to the complaint. 'Many of the issues presented by the answer are merely repetitions of the objections raised by the demurrer. In addition thereto, however, tbe answer, in effect, alleges that defendants, as commissioners of Utah county, have provided funds for the relief of the indigent and dependent poor of said county, and that the provision so made is adequate and sufficient to provide relief for all such persons, including widowed mothers for whose benefit relief is applied for in this proceeding. The answer further alleges that said county now has no funds from which a fund can legally be set aside for the express purpose demanded in plaintiff’s complaint.

The answer presents no issuable question of fact. The questions of law to be determined are: (1) Is the duty of the county commissioners to provide a fund for the partial support of widowed mothers dependent upon their own efforts for the maintenance of their children a proper subject for mandamus proceedings? (2) Is the fact that the county commissioners have provided funds for the relief of the indigent and dependent poor'of said county, including widowed mothers of the class mentioned, a valid defense against an action to compel the performance of such duty? (3) Is the fact that there are.no funds available at the present time for such purpose a valid defense? (4) Is the plaintiff a proper party to bring such action? These questions will be considered in the order above stated.

1. It seems to the writer to be wholly unnecessary to multiply words in disposing of the question first above stated. The language of the statute quoted near the beginning of our statement of the ease is plain, unequivocal, and unambiguous. It needs no interpretation to determine the fact that a mandatory duty is imposed upon the county commissioners to provide such funds as may be reasonably necessary to carry out the purposes of the law in accordance with its express terms and provisions. This being the case, it is a positive duty of the commissioners to provide the funds 1 without equivocation or evasion. It is true the commissioners have the discretion to determine the amount necessary to be provided, but it is not an arbitrary discretion; it is a discretion that may be abused, and whenever abuse is properly charged the question may be reviewed even in a mandamus proceeding. 18 R. C. L. p. 126; 26 Cyc. 161, 162. In support of the contention that the statute relied on as the basis of this proceeding is mandatory in its requirement that the duty must be performed, plaintiff’s counsel refers us to 36 Cyc. 1159; Mason v. Fearson, 9 How. 259, 13 L. Ed. 125; Hugg v. City Council of Camden, 39 N. J. Law, 620; Industrial Com. of Utah v. Daly Min. Co., 51 Utah, 602, 172 Pac. 301. See, also, 18 R. C. L., p. 119; 26 Cyc. 157, 158.

There can be no substantial doubt that mandamus in the instant case is a proper remedy, and is the only one that is plain, speedy and adequate.

2. But it is contended by defendants that, having provided funds for the relief of the indigent and dependent poor of the country, including widowed mothers dependent upon their own efforts to maintain their children, there is no necessity for a strict compliance with the statute upon which this proceeding is founded. In assuming such position, defendants mate the mistake of attempting to substitute their judgment for that of the Legislature. The statute making provision for the relief of the indigent and dependent poor (Comp. Laws Utah 1917, § 1400x46) was enacted by the Legislature as early as 1903, while the first statute for the relief of dependent widowed mothers was not enacted 2 until 1913. It will thus be seen that in the opinion of the Legislature the statute for the relief of the indigent and dependent poor did not adequately fulfill the purpose for which the latter statute was enacted. A careful comparison of the two statutes will disclose the' fact that they were enacted with entirely different objects in view, and to remedy conditions altogether dissimilar. It was never intended by the Legislature that the mothers of future citizens of the state should be regarded as paupers or placed in the pauper class. Consequently, we feel compelled to hold that a provision for the indigent and dependent poor of Utah county is not such a provision for widowed mothers dependent upon their own efforts for the maintenance of their children as is contemplated by the statutes of the state.

3. It is further contended as matter of defense that there are no funds at present out of which provision can be expressly made for the purpose demanded in this proceeding. Ordinarily such a defense is a complete answer to an application for a writ of mandate; that which is impossible cannot justly be required. But assuming there are no funds at the present time available for the purpose in question, it does not necessarily follow that such condition must continue indefinitely. Utah county is a quasi public corporation, a legal subdivision of the state, with ample power to assess and collect taxes for all legitimate purposes authorized by the laws of the state. It is quite true that taxes must be assessed, levied, and collected at the time and in the manner provided by law. Defendants contend that it is now too late to assess and collect additional taxes for the year 1921. They also insist that it is too early to compel the assessment and collection of taxes for the year 1922. It is also suggested that no person has the right to anticipate that defendant will refuse to make the provision that may be required in 1922, and that until defendants do refuse there is no ground for action against them. Upon this point they cite High on Extraordinary Legal Remedies (3d Ed.) p. 17, page 160, par. 144, and page 19, par. 14; also State v. Rising, 15 Nev. 164.

The contention, to say the least, is ingenious, if not disingenuous. If it is too late to assess and collect taxes for 1921, because the time has past within which it can lawfully be done, and too early for 1922, because the time when it can be done has not yet arrived, it is easy to see, in a meritorious ease, that grave injustice might be done; in fact it might happen, if the rule contended for were rigidly enforced, that relief id a case of this kind could never be obtained. The contention of defendants is squarely met by a somewhat lengthy quotation furnished by plaintiff from a Colorado ease reported in 110 Pac. 197:

“The petition states ground for relief against the commissioners to take effect at the earliest date upon which they could lawfully levy the tax. The contention is that the demand for a levy occurring in the spring of 1908 it was too late for the levy of 1907, and too early for that of 1908. A court has power to grant the writ requiring a future levy at the regular time fixed'by law therefor if the facts show that the petitioner has a cause of action, and the conduct of the defendant justifies the belief that it has no purpose to act at any time. Were the contrary true, the defendant hoard might ever contend, as it does now, that there has heen no refusal; hence the action does not lie; and it might thus always insist, either that an action was too late, as the levy had already been made, and too early for a future levy, as the time for that had not yet arrived, and there having been no refusal, the board abstaining from specifically doing so, his action would then be premature. Thus a complainant with a just cause, his remedy by mandamus being exclusive, might upon trifling pretext be forever barred of his right; it being forever and ever either too early or else too late for the board to comply with the demand. The law does not contemplate such a possibility. Neither will it be tolerated. To so hold, and thus allow and approve a premeditated and planned evasion, would be a mockery of justice. Had defendant by answer and return to the writ said that it was its purpose to make the levy at the earliest time that it could lawfully do so, then there would be force in its position, especially if the statute were as contended for by it. But it is manifest from the pleadings that there is no such purpose; on the contrary, from the answer and return, it is plain that the defendant does not intend to pay, or make provision for the payment of, this claim, unless compelled to do so by judicial order and decree.” Berkey v. Bd. of Com’rs of Pueblo County, 48 Colo. 104, 110 Pac. 197, 20 Ann. Cas. 1109.

The excerpt quoted is especially pertinent in tbe instant case for the reason that the defendants have nowhere, either in their answer or their brief, suggested or intimated that they intend to comply with the law in the future any more than they have done in the past. We are of opinion that as far as this defense is concerned it should not be permitted to prevail, but that the defendants should, as 3 soon as they are able under the law, in thu utmost good faith, endeavor to comply with the provisions of the statute intended for the relief of widowed mothers who are dependent upon their own efforts for the maintenance of their children.

However strong may be our convictions concerning the matters discussed in the preceding pages of this opinion, there is yet a controlling question to be considered and determined before reaching a conclusion upon which an order can be entered.

4. It is contended by defendants that plaintiff has no legal capacity to sue; that he is not a party beneficially interested, as provided in Comp. Laws Utah 1917, § 7392. That section specifically provides that the writ of mandate must issue “upon affidavit on the application of the party beneficially interested.” If the statute had stated that the writ might issue upon the application of a resident or a taxpayer, there would be no question but that plaintiff would be qualified to make the application, but such is not the language of the statute. The party must be i enefi,dally interested, and the controlling question is, Do the words “beneficially interested” have any special or peculiar significance, or may they be applied, to any taxpayer or person residing within the state who has merely a common interest with other residents in seeing that the laws are enforced ?

Notwithstanding there are many authorities supporting the opposite view, I am strongly of the opinion that statutes like ours, requiring that the applicant must be a party beneficially interested, mean that the party must have some peculiar interest separate and distinct from that of the community in general. It is my opinion that the statute in this regard should be construed the same as we would construe the law determining the right of a private individual to institute a civil action to abate a public nuisance. If the nuisance affects him only in the same manner and to the same extent that it affects the people of the community in general, it is an elementary rule of practice that he would have no standing as a plaintiff in such proceeding. If, however, he is peculiarly affected or injured by the nuisance, then, under all the authorities, he has the right to institute an action in his own name to abate the nuisance. Why should not the same construction be given to the statute in question here? The principle is identical, and I am forced to the conclusion that the Legislature intended it should be so^ construed. The complaint represents the plaintiff simply as a resident and taxpayer. He has no further interest in the relief demanded. As a resident he has no greater interest than any other resident. As a taxpayer, it can hardly be said that he is beneficially interested, for be is seeking by this proceeding to increase the taxpayers’ burdens rather than diminish them. It does not even appear that the plaintiff has as great an interest in the relief demanded in this case as he would have if the law had been enacted for the equal benefit of every resident of the community. While it has been held, in a thoroughly well-considered case heretofore decided by this court (D. & R. G. R. R. v. Grand County, 51 Utah, 294, 170 Pac. 74, 3 A. L. R. 1224), that the partial support of widowed mothers dependent upon their own efforts for the maintenance of their children is a public purpose within the purview of laws relating to taxation, still it must be admitted-that the law providing for such support does not confer equal benefits upon other residents of the commonwealth. It is made for the direct benefit of a particular class, while the benefit to the entire community is only incidental. Plaintiff does not come within the class directly benefited, and therefore his interest appears to be even more remote than it would be if the law was general in its application. It is exceedingly difficult, therefore, to find any legal reason for upholding the contention of plaintiff that he is a party beneficially interested within the meaning of the statute. This view is sustained by many well-considered cases cited by defendant. 19 Std. Ency. Pro. 248; High, Extraordinary Legal Remedies (3d Ed.) 420; Eby v. Board of School Trustees, 87 Cal. 166, 25 Pac. 240; Young v. Regents of University of Kansas, 87 Kan. 239, 124 Pac. 150; Sterling v. Regents Univ. of Mich., 110 Mich. 369, 68 N. W. 253, 34 L. R. A. 150. See, also, Bobbett v. State, 10 Kan. 9; Webster v. Common Council of San Diego, 8 Cal. App. 480, 97 Pac. 92; Pearsons v. Ranlett, 110 Mass. 118; Smith v. City of Saginaw, 81 Mich. 123, 45 N. W. 964; In re Wellington, 16 Pick. (Mass.) 87, 26 Am. Dec. 631; Scripture v. Burns, 59 Iowa, 70, 12 N. W. 760; State v. Eberhardt, 14 Neb. 201, 15 N. W. 320; Heffner v. Commonwealth, 28 Pa. 108; Ellis v. Workman, 144 Cal. 113, 77 Pac. 822; Colnon v. Orr, Treasurer, 71 Cal. 43, 11 Pac. 814; Fritts v. Charles, 145 Cal. 512, 78 Pac. 1057.

In support of plaintiff’s contention that he is a proper party to make application for the writ, his counsel refer us to People v. Harris, 203 Ill. 272, 67 N. E. 785, 96 Am. St. Rep. 304; High on Extraordinary Legal Remedies (3d Ed.) 431; County of Pike v. People ex rel. Metz, 11 Ill. 202; City of Ottawa v. People, 48 Ill. 223; Frantz v. Wyo County Court, 69 W. Va. 734, 73 S. E. 328; Wampler v. State ex rel. Alexander, 148 Ind. 557, 47 N. E. 1068, 38 L. R. A. 829; 18 R. C. L. 325.

The paragraphs referred to by plaintiff from High on Extraordinary Legal Remedies and Ruling Case Law, supra, seem to hold that the weight of authority sustains the right of a private citizen to institute mandamus proceedings to enforce a right which pertains to the public at large in which the applicant may have no peculiar interest. The correctness of this proposition, as shown by many of the cases above cited, is seriously disputed, yet, conceding it to be true, I have found no case in my investigation of the question which sustains the right where the demand is made in the interest of a class merely, and where the applicant is not a member or- representative of the class. Therefore it seems to me that to hold in favor of plaintiff’s contention in the instant case would be to apply the rule to cases to which it has never heretofore been applied in any jurisdiction of the country.

In a very recent decision by this court (Crockett v. Board of Ed. of Carbon Co. School Dist., 58 Utah 303, 199 Pac. 158) it was held that a resident citizen and taxpayer was beneficially interested, and therefore authorized to institute mandamus proceedings to compel the school district to publish an annual statement of its receipts and disbursements of money, as provided in Comp. Laws Utah 1917, § 4614. Being a resident and taxpayer of the district, he was beneficially interested as such in being informed as to the amount of money the district had received and the particular purposes for which it had been expended. But suppose he had not been a taxpayer or resident of the district at all — in other words, did not come within the class of persons in any sense specially interested in the relief applied for, as is the case with plaintiff here — could he have maintained the action on the theory that he was interested as a citizen in seeing that the law was enforced ? It is a moot question, and one which, perhaps, the writer ought not to attempt to answer. This, however, may be said — -perhaps without transgressing the rules of propriety — if the Crockett Case had been as hypothetically stated, instead of being as it appears in the published report, it is by no means certain that the conclusion reached by the court would have been the same. We have no reason to think it would from any adjudicated case with which we are familiar.

There seems to be no present necessity for inaugurating an innovation in the instant case. Any widowed mother of the class mentioned, for whose relief the law was enacted would undoubtedly have the right to apply for a writ of mandate to compel an enforcement of the law. Any attorney authorized to represent the county, district, or state would have the right, and any person upon whom legal demand might be made to furnish support to such widowed mother or her minor children would in law be considered beneficially interested within the meaning of the statute,-and therefore authorized to institute the proceeding. We do not assume in advance to suggest, except tentatively, who might be authorized to apply for the writ in a case of this 4 kind. We are, however, decidedly of the opinion that it should be a person whose relation to the case is something more than that of a mere resident or taxpayer of the county. To hold in the present case that plaintiff being a resident taxpayer of Utah county is all that is necessary to qualify him to prosecute the action is, in our view of the law, to disregard and set at naught the statute which provides that the applicant should be a party beneficially interested in the proceeding.

We are firm in our conviction that the law sought by plaintiff to be enforced is a humane, wholesome, beneficent statute and should be conscientiously and faithfully enforced in every county in the state. Nevertheless, for the reasons stated, it becomes our duty to deny the writ prayed for in the complaint.

The peremptory writ is therefore denied. Each party to pay his own costs.

WEBER, GIDEON, and FRICK, JJ., concur.