Tygesen v. MAGNA WATER CO.

226 P.2d 127, 119 Utah 274, 1950 Utah LEXIS 167
CourtUtah Supreme Court
DecidedDecember 28, 1950
Docket7550
StatusPublished
Cited by13 cases

This text of 226 P.2d 127 (Tygesen v. MAGNA WATER CO.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tygesen v. MAGNA WATER CO., 226 P.2d 127, 119 Utah 274, 1950 Utah LEXIS 167 (Utah 1950).

Opinions

WADE, Justice.

[278]*278This 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, [279]*279supervise 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 [280]*280boundaries 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 [281]*281performed 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.

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Tygesen v. MAGNA WATER CO.
226 P.2d 127 (Utah Supreme Court, 1950)

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Bluebook (online)
226 P.2d 127, 119 Utah 274, 1950 Utah LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tygesen-v-magna-water-co-utah-1950.