Sears v. Ogden City

533 P.2d 118, 1975 Utah LEXIS 656

• Court: Utah Supreme Court
• Decided: March 11, 1975
• Docket: 13647
• Status: Published

Opinions

TUCKETT, Justice:

The plaintiffs initiated these proceedings in the District Court of Weber County for the purpose of contesting the validity of an ordinance passed by the Ogden City Council which closed and vacated a public street and made a gift of the property to the Board of Education of Ogden City. The plaintiffs also seek injunctive relief restraining the City from carrying out the ordinance. From an adverse ruling in the court below, the plaintiffs have appealed.

On July 27, 1973, the superintendent of the Board of Education of Ogden City forwarded a letter to the Ogden City Counsel, which requested that the City close and vacate 29th Street between Tyler Avenue and Harrison Boulevard. The matter was referred by the Council to the Ogden City Planning Commission and other agencies for valuation. On January 10, 1974, the Council of Ogden City adopted an ordinance which closed and vacated the street above referred to, and authorized its conveyance to the Board of Education of Ogden City.

It appears that the City Council proceeded pursuant to the provisions of Section 10-8-8.1, U.C.A.1953, in vacating the street, the language of which is as follows:

On petition by a person owning a lot in a city, praying that a street or alley in the immediate vicinity of such lot may be vacated, narrowed or the name thereof changed, the governing body of such city, upon hearing, and upon being satisfied that there is good cause for such change of name, vacation or narrowing, that it will not be detrimental to the general interest, and that it should be made, may declare by ordinance such street or alley vacated, narrowed or the name thereof changed. The governing body may include in one ordinance the change of name, or the vacation, or the narrowing of more than one street or alley.

The vacating of a public street for the purpose of disposing of it is questionable as being a good cause and to the general interest of the city residents, however, we do not need to pursue that issue in these proceedings.

Section 10-8-2, U.C.A.19S3, appears to be the only statute dealing with the authority of municipalities to dispose of property. The pertinent provisions of that section are as follows:

They may appropriate money for corporate purposes only, and provide for payment of debts and expenses of the corporation; may purchase, receive, hold, sell, lease, convey and dispose of property, real and personal, for the benefit of the city, both within and without its corporate boundaries, improve and protect such property, and may do all other things in relation thereto as natural persons, ....

The statute above quoted authorizes a city to dispose of its property, real and personal, but it does not authorize a city to dispose of its property by gift. The property owned by a city is held by the city in trust for the use and benefit of its inhabitants and cannot be disposed of by gift without specific legislative authority. Even with respect to property held by a city in a proprietary capacity it is generally held that a municipality may sell or otherwise dispose of such property, in good faith and for an adequate consideration.¹ We are of the opinion that the above quoted statute falls short of giving to Ogden City the right to dispose of its property by gift.

The decision of the court below is reversed. No costs awarded.

HENRIOD, C. J., and MAUGHAN, J., concur.

1 . Borough of Rockaway v. Rockden American Legion Post No. 175, 39 N.J. 504, 189 A.2d 212; Ward v. City of Roswell, 34 N.M. 326, 281 P. 28; Buckhout v. City of Newport, 68 R.I. 280, 27 A.2d 317, 141 A.L.R. 1440; Anno. 141 A.L.R. 1447; Ogden City v. Bear Lake & R. W. W. & I. Co., 16 Utah 440, 52 P. 697; McQuillin, Municipal Corporations, Rev.Vol. 10, Sees. 28.37, et seq.