Tygesen v. MAGNA WATER CO.

WADE, Justice.

This is an original proceeding in this court brought by the plaintiff to obtain a writ prohibiting the defendants from issuing and selling general obligation bonds of the District in the amount of $75,000 and issuing revenue bonds in the amount of $175,000. The Attorney General of the State of Utah has been made a third party defendant because one of the purposes of plaintiff’s action is to attack the constitutionality of Chapter 24, Laws of Utah 1949, by the authority of which statute The Magna Water Co., an Improvement District, was established.

Chapter 24, Laws of Utah 1949, authorizes the Board of County Commissioners in each county in the state to establish improvement districts for the purpose of operating systems for the supply, treatment and distribution of water and systems for the collection, treatment and disposition of sewage. Under the authority of this Act the Magna Improvement District was formed. This improvement district is located in Magna, Utah, an unincorporated town, and is entirely within the boundaries of Salt Lake County, and plaintiff admits that the creation of such district was made in accordance with the requirements of the Act and the bond election which authorized the Board of Trustees of the Magna Water Co. to issue the bonds, was duly and regularly conducted in accordance with the requirements of the Act. Plaintiff also admits that the facilities in the Magna area for the supply of water are perilously inadequate to meet the needs of its citizens and is such as to cause the retardation of the building of needed new homes in the area as well as being a present menace to the health of the community. The lack of a reserve water supply has also proven to be a dangerous fire hazard.

Plaintiff asserts that Chap. 24, Laws of Utah 1949, violates the provisions of Art. VI, Sec. 29, and Article XI, Sec. 5 of the Constitution of Utah, because it delegates

“to a special commission, private corporation or association power to assume, supervise or interfere with municipal functions, and has by special law created a corporation for municipal purposes.”

Sec. 29, of Art. VI of the Constitution of Utah provides that: !

“The Legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, to levy taxes, to select a capitol site, or to perform any municipal functions.”

Section 5 of Article XI, Constitution of Utah, among other things provides that:

“Corporations for municipal purposes shall not be created by special laws. * * *

It is plaintiff’s contention that since under present day-conditions counties have assumed in unincorporated cities or towns many of the functions of the incorporated cities or towns, such as regulating police and fire protection, lighting streets, collecting garbage, surfacing and clearing streets and sidewalks and operating sewers, that the functions of the counties are municipal functions the same as that of incorporated cities and towns and therefore the provisions of Art. VI, Sec. 29, forbidding the legislature to delegate to special commissions, private corporations or associations the power to perform municipal functions applies to the functions which the counties have assumed.

Assuming, without conceding, that the term “municipal functions” as used in Art. VI, Sec. 29, applies to the functions of counties as well as cities and towns, nevertheless, plaintiff’s contention is not tenable. The management and control of the Improvement Districts and its properties and effects are used by the Act vested in a Board of Trustees even though these districts are initiated by the county commission. Their operations will be separate and distinct from any of the functions assumed by the counties in those unincorporated cities or towns. Although these operations might be in the same territorial boundaries as the improvement districts, they will have no control over the property or effects of the counties or of the manner of the performance of any of the functions which the counties have assumed. These improvement districts are similar to the Metropolitan Water Districts and the Water Conservancy Districts. In the Metropolitan Water District Act the initiating agencies were the legislative bodies of the cities desiring the districts, in the Water Conservancy Act the district courts upon petition of a specified percentage of property owners were the agencies through which the districts could be established, whereas in the Improvement District Act under consideration the Legislature has seen fit to give that duty to the county commissioners of the counties in which it is desired to establish a district. In all of these acts once the initiating agencies have acted and a district has been formed, their functions cease and the governing body of the district assumes full control of the district and its properties. This court has held that the Metropolitan Water Districts and the Water Conservancy Districts organized under those Acts were separate and distinct arms of the government and not special commissions, boards, private corporations or associations within the purview of the constitutional prohibition. See Lehi City v. Meiling, City Recorder, 87 Utah 237, 48 P. 2d 530 and Patterick v. Carbon Water Conservancy District, 106 Utah 55, 145 P. 2d 503. The fact that proceedings to initiate an Improvement District is left to the county commissioners of the counties in which the Districts can be formed might lend some support to an argument that a district would not be a separate and distinct arm of the government but merely be an arm of a county for the purpose of carrying out a county function, were it not for the fact that once the District is actually organized the county has no further connection with the District except the ministerial one of levying any taxes certified to it by the Board of Trustees, a duty of the county which is similar to that performed by it for Boards of Education under the provisions of Sec. 75 — 12—10, U. C. A. 1948. Once the District is formed the Board of Trustees have full control and supervision of the property and the conduct of affairs of the District. The District must have its own seal and its Board of Trustees may sue and be sued. Also the taxes which are certified by the Board to the county. commissioners can be levied only on property within the District. If a District were merely an arm of the county then the general taxes levied whether used for benefits inuring to the District or not should be levied against all residents of the county rather than on those only within the District, just as they are for other county functions. It being the duty of this court, where possible, to uphold the validity of an act rather than declare it unconstitutional, see Lehi City v. Meiling, City Recorder, supra, and Patterick v. Carbon Water Conservancy District, supra, we are of the opinion that an Improvement District is a separate arm of the government and not a mere adjunct of a county performing county functions.

Since an improvement district created under Chap. 24, Laws of Utah 1949 is not a corporation but is a separate arm of the government formed for public purposes, it does not violate Sec. 5 of Art. XI of the Utah State Constitution forbidding the creation of corporations for municipal purposes, by special laws. See Patterick v. Carbon Water Conservancy District, supra, wherein this court held that the inhibitions of Sec. 5, Art. XI applied only to cities, towns, villages and subdivisions of these but did not apply to an arm of the government separate and distinct from a municipality, such as this improvement district is. Another good reason why the Improvement District Act does not offend against this constitutional provision is that the Act is not a special but a general law because it applies alike to all portions of the state and is made for the use and benefit of the inhabitants of all counties which come within and might desire to take advantage of its provisions.

Plaintiff next contends that the Act violates Art. V of our Constitution, because many of its provisions are so vague and uncertain that it will require of the courts interpretation to such an extent as to amount to making the law, which is a function given by this constitutional article to the legislature and not to the courts. In support of this contention plaintiff gives a number of provisions of the Act as examples of such vagueness and uncertainty. It would unduly and unnecessarily lengthen this opinion to take each of his examples and show where he is mistaken in such contention. Suffice it to say that we have Carefully examined and considered each of his examples and find that they do not offend Art. V in this respect. It is the duty of courts to interpret and construe statutes, and only Where the statute is so vague that the meaning of the legislature cannot be ascertained or understood therefrom will they refuse to enforce an act. They will not substitute what they think ought to be the law for ambiguous terms in the act, nor will they declare an Act invalid because it has not been expressed as aptly or clearly as it could have been had different terms been used. Instead the courts will use every authorized m,eans to discover and give an Act an intelligible meaning. Only when it is impossible to resolve the doubts will an Act be declared invalid for uncertainty or vagueness. See Nowers v. Oakden, 110 Utah 25, 169 P.2d 108. In the examples given by plaintiff, this court has no doubt that it will not be too difficult for the courts to ascertain the meaning of the legislature.

■ Plaintiff avers that the Act limits or prohibits review by the courts and therefore violates Sections 7 and 11 of Art. 1 of our state constitution. Sec. 7 provides that: “No person shall be deprived of life, liberty or property, without due process of law.”; and Section 11 provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.”

Plaintiff argues that the Act gives the trustees of the District and the County Commissioners extensive powers but does not provide for a review by the courts of their actions, but in some instances limits and prohibits such review and in so doing violates the above constitutional provisions. Plaintiff refers us to portions of Sections 3, -5, 8, 10 and 14, of the Act, the provisions of which he contends are examples of such limitations and prohibition of review by the courts and which therefore violate these constitutional provisions. At the outset it should be kept in mind that this Act was enacted to provide for the creation of Improvement Districts wherever desired in the State, and that these Districts, when formed, are quasi-municipalities, and the benefits to be obtained from such Districts enure to the public generally. There are no provisions in the act for special assessments or liabilities of individuals for benefits which would enure to them as such, but merely as members of the public. The taxes which the Act empowers the District to levy for the payment of the benefits are general taxes and not special assessments. The governmental acts of quasi-municipalities are like those of true municipalities, and when a municipality acts within the powers given it by statute, its acts are not subject to review by courts unless there is a manifest abuse of those powers or unless such right to review is granted by statute. See 62 C. J. S. Municipal Corporations, § 199. This being so, it follows that the provisions of Sec. 11 of Art. 1, of our Constitution are not applicable.

Does the Act offend against Sec. 7, Art. 1, our “due process” clause? Plaintiff argues that the act violates this section because a protestant of the formation of a district has only thirty days in which to file his protest in a district court and then his right of review is limited to whether his property will not be benefited and whether the district was created in compliance with the statute; that at the time this right of review is available to him he cannot know the extent of the proposed improvements and Whether or not they would be excessive as Sec. 3 of the Act provides that “The provisions of the petition [for formation of the district] shall not be considered to be a limitation on the right of the board to submit a bond issue in whatever amount and for whatever improvement may be found desirable after the district has been organized.” That this provision makes it impossible for a property owner to know before the time for protest is over whether the amount which might eventually be determined to be spent on the improvements is such that had he known it in the first instance would have caused him to protest the formation of the district.

Section 3 of the Act provides in part, that a board of county commissioners which has adopted a resolution to form an improvement district must give notice of such intention. That such notice shall define the area to be included and the boundaries thereof, shall generally describe the proposed improvements with the estimated cost, and such notice shall be published in a newspaper of general circulation in the county once each week for five successive weeks. The notice shall give a time not more than 90 days or less than 45 days after the first publication and a place where all interested parties may appear before the board to be heard either in favor or protest of the proposed district.’ Any taxpayer may protest in writing the formation of such 1 a district at any time either before or at the time of the hearing. If the owners representing more than one half of the assessed value of the taxable property within the proposed district protest the formation of such a district, it shall not be formed. If the Board shall determine that the written protests represent less than one half of the assessed valuation of real property in the district, “the resolution of the board establishing the district shall contain a recital to that effect and such recital shall be binding and conclusive for all purposes.” After the adoption of this resolution any property owner who has filed a written protest to the establishment of the district and whose property is included therein may within 30 days after such adoption apply to the district court for a review of the actions of the board, but such review shall be only on the ground that his property will not be benefited by the proposed improvements or upon the ground that the proceedings establishing the district have not been in compliance with the statute. A failure to apply for such a writ of review within the time specified shall foreclose any further right to object to the formation of the district. After the district has been formed, the board need not be limited by the' provisions of the petition in the amount to be submitted on the bond issue or for whatever improvements may be found desirable.

These provisions of Sec. 3 which deal with the organization of districts give ample opportunity to interested owners to protect their rights, and to prevent the formation of such district where the owners of the majority of the real property based on the assessed valuation thereof object. Even the owner of any real property may object to the inclusion of his property within the district and if his objection is found valid, his property cannot be included since there is a provision that the board of county commissioners shall eliminate any property originally included in the proposed district where it shall determine that the property will not be benefited. Before the district is organized any owner whose property may be affected and who has complied with' the provisions of .the Act as to. written protest may come into court and have the matter of whether his property will be benefited or whether the proceedings in establishing the district have been made in compliance with the statute, reviewed by the court. This is due process. See Patterick v. Water Conservancy Dist., supra, wherein this court pointed out that a district could have been created by legislative fiat had the legislature so desired, since the creation of a district does not affect property rights, and since the legislature could have created the district by its own fiat it coúld have provided for a tax on all property within the district to pay for the costs and maintenance of the project; the provision in Section 3 of the act whereby the board is not limited by the amounts or the improvements set forth in the petition to establish the district, in the submission of a bond issue after the formation of the district in whatever amounts or whatever improvements it might subsequently find desirable, does not violate the due process clause.

Plaintiff also calls the attention of this court to sections 4 and 5 of this Act, wherein it is provided in part that after the organization of the district 50 real property owners may present a petition to the Board of County Commissioners requesting the Board to call an election to determine whether bonds of the district shall be issued to the amount and for the purposes stated in the petition and upon receipt of such a petition the Board shall publish notice of a hearing on the petition which notice shall state the amount of the bonds proposed to be issued and whether they are to be general obligations of the district or whether they are to be paid solely from revenue, and the notice should also state the name or number and the boundaries of the district. At the time of the hearing any interested persons may appear and contend for or protest the calling of the bond election, and any owner of real property may file a written protest against the calling of the election. If prior to the holding of the hearings the owners of more than 50% in value of the real property in the. district according to the last assessment roll for county taxes have filed written protests the Board shall not call the election, but if “any written protests are filed and the board shall determine that the protests so filed represent less than half of the assessed valuation of the real property in the district, the resolution or order of the board calling the election shall contain a recital to that effect and such recital shall be binding and conclusive for all purposes.”

Plaintiff contends that the provisions of the above sections are of no avail as safeguards to the rights of any interested person even though they provide for notice and hearing and an opportunity to protest since the decision of the board as to its finding is binding and conclusive for all purposes and there can be no recourse to a court to challenge the findings even though they may be inaccurate.

It should be kept in mind that these sections deal only with whether a bond election should be called for the purposes stated in the petition. No individual’s life, liberty or property rights are involved. Had the legislature desired, it could have provided that such an election be called by the board itself upon its own determination without taking into account the desires of a certain percentage of property owners, and the due process clause of our constitution would not have been violated had such a statute been enacted. Patterick v. Water Conservancy District, supra; In re Bonds of the Madera Irrigation District, 92 Cal. 296, 28 P. 272, 675, 14 L. R. A. 755. All interested parties have an opportunity to protest the issuance of bonds at the election after it is called by voting against the proposition. If the improvements are not desired or the amount of bonds which it would authorize the board to issue is too much, the voters can voice their displeasure by refusing to give their consent and that would end the issue. However, since the legislature did provide that, the election could only be called by the board upon the happening of certain conditions, these conditions must actually exist if the proposed bond election is to be valid. For instance, if it should be clear, as a matter of fact, that the owners of more than 50% in value of the real property in the district had filed written protests to the calling of the election, and the board, in spite of such apparent fact, should find contrary thereto, the provision that a recital to that effect in the resolution or order calling the election by the board should be final and conclusive for all purposes, would not preclude an interested party who uses due diligence from applying to the courts for a writ to restrain the board from acting beyond the powers granted to it by the legislature. If this were not so, that portion of the Act would be unconstitutional, because it purports to grant certain rights to interested parties, then precludes them from going to a court to enforce them. That the legislature did not so intend is borne out by Sec. 14 of the Act which provides that:

“The boaid of trustees may provide for the publication of any resolution or other proceeding adopted by the board in a newspaper published in or having general circulation in the district. For a period of thirty (30) days after the date of such' publication, any person in interest shall have the right to contest the legality of such resolution or proceedings or any bonds which may be authorized thereby or the provisions made for the security and payment of any such bonds, and after such time no one shall have any cause of action to contest the regularity, formality or legality thereof for any cause whatsoever.” (Italics ours.)

The above section gives any interested person a right to test the legality of any resolution or order of the board, but limits the time for- doing so to 30 days after the publication by the board of such resolution or order. Such limitation period does not start to run -until after the publication by the board and until the board does so publish and the 30 days have passed any interested person may apply to the courts to test the legality of the board's action.

Plaintiff contends that Section 7 of the Act violates that part of Article 1,' Séc. -4 of the; State Constitution which provides that: “No property qualification shall be required of any person to vote, or hold office, except as provided in this Constitution,” because that section provides that: “In voting on the question of the issuance of the proposed bonds, none but such qualified voters as shall have paid a property tax in the district in the year next preceding the election shall be permitted to vote iji ‡ ‡ 99

Sec. 7 of Art. IV of the State Constitution provides that there shall be no property qualifications for any person to vote or hold office except in elections levying a special tax or creating indebtedness. It is obvious that an election to determine whether bonds should be issued is an election creating an indebtedness and plaintiff concedes that ordinarily property qualifications for voting in such an election would be constitutional, fie argues however that since Section 9 of the Act provides that bonds issued may be payable solely from revenue it is unconstitutional to disenfranchise a consumer who might not be a property owner but who would nevertheless be the one to pay the bonds. There is no merit to such contention. A consumer does not pay the bonds, he pays for whatever benefit he receives. If he doesn’t receive the benefit he does not pay. The obligor on the bonds is the District. It must pay for it. Its method of procuring revenues to do this does not change that fact nor the fact that the election is for the purpose of creating an indebtedness.

Plaintiff also contends that the Act is unconstitutional because it authorizes counties to exceed their debt limitations. Since a district is not a county but a separate arm of the government distinct from counties or municipalities, the constitutional provisions as to counties do not apply. For the same reason plaintiff’s objection to that portion of the Act which allows districts to sell its water outside the district as being a violation of Art. XI, Sec. 6 of the Constitution does not apply as that constitutional provision deals with municipalities.

Plaintiff alleges that the portion of Sec. 8 of the Act which provides that publication of the notice of the bond sale be in a paper of general circulation published in Salt Lake City, Utah, is a special law and therefore violates Art. VI, Sec. 26 and Art. 1, Sec. 24 of our constitution. Plaintiff gives no reason in his brief why he thinks the above provision offends against Art. VI, Sec. 26. This constitutional provision enumerates private laws which the legislature , is forbidden to enact but plaintiff fails to point out which, if any of the subsections contained therein this provision violates. Art. 1, Sec. 24 provides that all laws of a general nature shall have uniform operation. Certainly Sec. 8 of the Act applies equally to all districts and unless the provision is unreasonably discriminatory it cannot offend against this provision of our constitution. To be unconstitutional the discrimination must be unreasonable or arbitrary. As stated by Mr. Justice WOLFE in State v. Mason, 94 Utah 501, 78 P. 2d 920, 923, 117 A. L. R. 330:

«* » » A classification is never unreasonable or arbitrary in its inclusion or exclusion features so long as there is some basis for the differentiation between classes or subject matters included as compared to those excluded from its operation, provided the differentiation bears a reasonable relation to the purposes to be accomplished by the act.”

Salt Lake City is the capital of Utah and the newspapers published therein are more likely to reach the notice of persons who might be interested in buying bonds than other newspapers, and thereby accomplish the purpose of the publication more readily. Such a provision is therefore not unreasonable or arbitrary.

We have given due and careful consideration to all of plaintiff’s objections to the provisions of the Act which he alleged were unconstitutional and have found no merit to any of them. If there are provisions in the Act which are unconstitutional and to which the attention of this court has not been called, it will not affect all the provisions of the Act because the legislature has provided in Sec. 16 thereof that: “If any one or more provisions of this law shall ever be held to be invalid for any reason, such holding shall not affect the enforceability of the remaining provisions of this law.”

The alternative writ heretofore issued prohibiting the respondents from proceeding to sell bonds under the Act is hereby withdrawn. Writ denied. Costs to respondent.

PRATT, C. J., concurs.