MINER, O. <7.
The respondents in this ease filed their petition in conformity with chapter 15, title 10, section 288, Revised Statutes 1898, praying that certain land described therein be detached and disconnected from Salt Lake City. It is alleged, among other things, that the land in question is not platted for any municipal purpose, and is not situated so as to render it desirable to be platted to be used for residence or business purposes, and that the same was no part of the town-site entry of Salt Lake Oity; that it is situated five miles from the business portion of the city, and two miles from the platted and inhabited part of the same; that lying between said land and the city is the Et. Douglas military reservation,, and that the only way to reach said land is over said reservation; that most of said property is situated north of Emigration Canon, along the foothills and mountain side, and is-mountainous, broken, and unfit for municipal or residence purposes; that a range of foothills lies between it and the reservation; that the land never has received or can receive any fire or police protection, or other municipal benefit of any kind; that the city has contracted a bonded indebtedness of about $2,750,000 for permanent improvements in said city,, none of which are situated near this property, that the assessed valuation of said property-in 1900 was $14,755; that prior to 1896, and the adoption of the Constitution, the owners of the property were not required to pay .taxes thereon, but the same were remitted, because the said property did not receive any municipal benefits. To this petition a demurrer was interposed by the defendant, which was overruled. After a hearing the court found the facts in accordance with those stated in the petition, and ordered the land to be severed from the city, and discharged from its jurisdiction and control, without any obligation to the city for taxes or bonded indebtedness thereof. Erom this order the defendant appeals.
Section 288, Revised Statutes 1898, provides as follows: “Whenever a majority of the real property owners of any [328]*328territory within and lying upon the borders of any city, shall file with the clerk of the district court of the county in which such territory lies, a petition praying that such territory 1 be disconnected therefrom, and such petition sets forth reasons why such territory should be so disconnected from such city, and is accompanied with a map or plat of the territory sought to be disconnected, and designates no more than five persons who are empowered to act for said petitioners in such proceedings, such court shall cause a notice of the riling of the same to be served upon said city, in the same manner as a summons in a civil action, and shall also cause notice to be published in some newspaper having a general circulation in such city, for a period of ten days. Issue shall be joined and the cause tried as provided for the trial of civil causes, as nearly as may be. The proper authorities of such city.or any person interested in the subject-matter of said petition, may appear and contest the granting of the same.” Section 289 provides: “If the court finds that the petition was signed by a majority of the real property owners of the territory concerned, and that the allegations of the petition are true, and that justice and equity require that such territory or any part thereof should be disconnected from such city, it shall appoint three disinterested persons as commissioners to adjust the terms upon which such part shall be so severed as to any liabilities of such city that have accrued during the connection of such part with the corporation,, and as to the mutual property rights of the city and the territory to be detached.” Section 290 provides: “The commissioners shall, at a time by them fixed, hear the' agents named in the petition, and also the proper authorities of the city in regard to the subject-matter so submitted, and, as soon as practicable, report their findings in the premises to the court. Upon the filing of which report, the court shall decree in accordance therewith, and with the prayer of the petition, unless for good cause shown the court shall modify the same; or shall reject or set aside the report and appoint [329]*329new commissioners, and continue the cause for further action to be had thereon.” Section 1, article 5, of the Constitution, divides the power of the government into legislative, executive and judicial departments, and provides that no one department can exercise functions appertaining to either of the others, except in cases expressly provided. Section 1, article 6, provides: “The legislative power of this State shall be vested in a Senate and House of Representatives, which shall be designated The Legislature of the State of Utah.” Section 29, article 6, reads as follows: “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 capítol site, or to perform any municipal functions.” Section 5, article 11, reads as follows: “Corporations for municipal purposes shall not be created by special laws; the Legislature, by general laws, shall provide for the incorporation, organization, and classification of cities and towns in proportion to population; which laws may be altered, amended, or repealed.” Sec. 26, art. 6, subd. 12.
The appellant contends that the statute under which this proceeding was taken is unconstitutional and void, and that it attempts to delegate power to the district court and commissioners to legislate, and that the power given is a legislative power, and that the court can not be invested with it by the Legislature, under- the Constitution. It is true that, under the Constitution, powers ■ belonging to one department of government can not be exercised by others. Courts can not legislate or make laws. This power is vested in the Legislature, and any law which confers such power upon a court or executive officer is unconstitutional and void. The question presented here is, do the general laws of this State giving the district court power to disconnect certain portions of an incorporated city from its jurisdiction and limits confer xipon [330]*330the court legislative power to make laws? It will be conceded that, while the Legislature can not delegate power to make laws, it may still make laws to take effect upon the ascertainment of certain facts and conditions, and may delegate the duty to determine the existence of such facts to some other branch of the government. Field v. Clark, 143 U. S. 693, 12 Sup. Ct. 495, 36 L. Ed. 294; Dowling v. Insurance Co., 97 Wis. 50, 72 N. W. 229. This duty of determining the facts and conditions as they exist may also be conferred upon the courts. Under the provisions of the statute, whenever a petition is filed with the court, stating the requisite facts, and summons is issued and served upon the city, issue is then joined as in other cases. If the court finds the allegations in the petition are true, and that justice and equity require that the territory named should be disconnected from the city, it is required to appoint three commissioners, who are disinterested persons, to adjust the terms upon which a severance shall be made, as to the liabilities that have accrued, etc. The commissioners appointed are required to report their findings to the court.
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MINER, O. <7.
The respondents in this ease filed their petition in conformity with chapter 15, title 10, section 288, Revised Statutes 1898, praying that certain land described therein be detached and disconnected from Salt Lake City. It is alleged, among other things, that the land in question is not platted for any municipal purpose, and is not situated so as to render it desirable to be platted to be used for residence or business purposes, and that the same was no part of the town-site entry of Salt Lake Oity; that it is situated five miles from the business portion of the city, and two miles from the platted and inhabited part of the same; that lying between said land and the city is the Et. Douglas military reservation,, and that the only way to reach said land is over said reservation; that most of said property is situated north of Emigration Canon, along the foothills and mountain side, and is-mountainous, broken, and unfit for municipal or residence purposes; that a range of foothills lies between it and the reservation; that the land never has received or can receive any fire or police protection, or other municipal benefit of any kind; that the city has contracted a bonded indebtedness of about $2,750,000 for permanent improvements in said city,, none of which are situated near this property, that the assessed valuation of said property-in 1900 was $14,755; that prior to 1896, and the adoption of the Constitution, the owners of the property were not required to pay .taxes thereon, but the same were remitted, because the said property did not receive any municipal benefits. To this petition a demurrer was interposed by the defendant, which was overruled. After a hearing the court found the facts in accordance with those stated in the petition, and ordered the land to be severed from the city, and discharged from its jurisdiction and control, without any obligation to the city for taxes or bonded indebtedness thereof. Erom this order the defendant appeals.
Section 288, Revised Statutes 1898, provides as follows: “Whenever a majority of the real property owners of any [328]*328territory within and lying upon the borders of any city, shall file with the clerk of the district court of the county in which such territory lies, a petition praying that such territory 1 be disconnected therefrom, and such petition sets forth reasons why such territory should be so disconnected from such city, and is accompanied with a map or plat of the territory sought to be disconnected, and designates no more than five persons who are empowered to act for said petitioners in such proceedings, such court shall cause a notice of the riling of the same to be served upon said city, in the same manner as a summons in a civil action, and shall also cause notice to be published in some newspaper having a general circulation in such city, for a period of ten days. Issue shall be joined and the cause tried as provided for the trial of civil causes, as nearly as may be. The proper authorities of such city.or any person interested in the subject-matter of said petition, may appear and contest the granting of the same.” Section 289 provides: “If the court finds that the petition was signed by a majority of the real property owners of the territory concerned, and that the allegations of the petition are true, and that justice and equity require that such territory or any part thereof should be disconnected from such city, it shall appoint three disinterested persons as commissioners to adjust the terms upon which such part shall be so severed as to any liabilities of such city that have accrued during the connection of such part with the corporation,, and as to the mutual property rights of the city and the territory to be detached.” Section 290 provides: “The commissioners shall, at a time by them fixed, hear the' agents named in the petition, and also the proper authorities of the city in regard to the subject-matter so submitted, and, as soon as practicable, report their findings in the premises to the court. Upon the filing of which report, the court shall decree in accordance therewith, and with the prayer of the petition, unless for good cause shown the court shall modify the same; or shall reject or set aside the report and appoint [329]*329new commissioners, and continue the cause for further action to be had thereon.” Section 1, article 5, of the Constitution, divides the power of the government into legislative, executive and judicial departments, and provides that no one department can exercise functions appertaining to either of the others, except in cases expressly provided. Section 1, article 6, provides: “The legislative power of this State shall be vested in a Senate and House of Representatives, which shall be designated The Legislature of the State of Utah.” Section 29, article 6, reads as follows: “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 capítol site, or to perform any municipal functions.” Section 5, article 11, reads as follows: “Corporations for municipal purposes shall not be created by special laws; the Legislature, by general laws, shall provide for the incorporation, organization, and classification of cities and towns in proportion to population; which laws may be altered, amended, or repealed.” Sec. 26, art. 6, subd. 12.
The appellant contends that the statute under which this proceeding was taken is unconstitutional and void, and that it attempts to delegate power to the district court and commissioners to legislate, and that the power given is a legislative power, and that the court can not be invested with it by the Legislature, under- the Constitution. It is true that, under the Constitution, powers ■ belonging to one department of government can not be exercised by others. Courts can not legislate or make laws. This power is vested in the Legislature, and any law which confers such power upon a court or executive officer is unconstitutional and void. The question presented here is, do the general laws of this State giving the district court power to disconnect certain portions of an incorporated city from its jurisdiction and limits confer xipon [330]*330the court legislative power to make laws? It will be conceded that, while the Legislature can not delegate power to make laws, it may still make laws to take effect upon the ascertainment of certain facts and conditions, and may delegate the duty to determine the existence of such facts to some other branch of the government. Field v. Clark, 143 U. S. 693, 12 Sup. Ct. 495, 36 L. Ed. 294; Dowling v. Insurance Co., 97 Wis. 50, 72 N. W. 229. This duty of determining the facts and conditions as they exist may also be conferred upon the courts. Under the provisions of the statute, whenever a petition is filed with the court, stating the requisite facts, and summons is issued and served upon the city, issue is then joined as in other cases. If the court finds the allegations in the petition are true, and that justice and equity require that the territory named should be disconnected from the city, it is required to appoint three commissioners, who are disinterested persons, to adjust the terms upon which a severance shall be made, as to the liabilities that have accrued, etc. The commissioners appointed are required to report their findings to the court. Thereupon the court may decree in accordance with such report, or, if good cause appears, it may modify such report, or wholly set it aside, and appoint new commissioners, and continue the case for further hearing. In the present case the court has followed the statute. The facts required to be shown, under the statute, must be passed upon by the court. . A majority of the owners of land must petition. The land must lie upon the borders of the city, and the reasons for such -severance must be stated. A map or plat of the property must accompany the petition. These are issuable facts. The statute provides that issue may be joined thereon and the cause tried as is provided for the trial of civil cases, as near as may be. The determination of these issues and the facts and findings of the commissioners is a judicial act, and does not pertain either to the legislative or executive department of the State. The act in question [331]*331is a general act applying to all tbe cities in tbe State. It provides tbat certain territory, under certain conditions, may be severed from an incorporated city, if tbe court considers tbe facts justify sucb severance. Tbe right to disconnect tbe territory depends entirely upon tbe facts and tbe existence of the conditions covered by tbe statute, and tbe determination of tbe question involves an examination and weight of tbe testimony, which is certainly in tbe nature of a judicial determination. Tbe court gives tbe law effect after it has determined judicially tbe existence of tbe requisites as fixed by tbe Legislature. The court is simply to determine tbe issuable facts. It is a judicial act to determine what tbe facts in a given case are, and whether sucb facts, when found, entitle tbe party to tbe relief sought. Tbe statute names tbe conditions under which land lying on tbe borders of a city may be detached, and authorizes tbe court to determine whether sucb conditions exist, and whether, under all the facts, justice and equity require tbe land to be detached. The court is required to determine these questions. They are therefore of sucb a judicial character as to .come within the jurisdiction of tbe district court. Evans v. City of Council Bluffs, 65 Iowa 238, 21 N. W. 584; City of Burlington v. Leebrick, 43 Iowa 252; Ford v. Town of North Des Moines, 80 Iowa 626, 45 N. W. 1031; McKean v. City of Mt. Vernon, 51 Iowa 306, 1 N. W. 617; City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616; Huling v. City of Topeka, 44 Kan. 577, 24 Pac. 1110; Hurla v. Kansas City, 46 Kan. 738, 27 Pac. 143; State v. Weatherby, 45 Mo. 17; Lammert v. Lidwell, 62 Mo. 188, 21 Am. Rep. 411; Wahoo v. Dickinson, 23 Neb. 427, 36 N. W. 813; Forsythe v. City of Hammond (C. C.), 68 Fed. 774; Grusenmeyer v. City of Logansport, 76 Ind. 549; People v. Fleming (Colo. Sup.), 16 Pac. 298; Field v. Clark, 143 U. S. 693, 12 Sup. Ct. 495, 36 L. Ed. 294.
An additional reason for tbe bolding is found in section [332]*33226, article 6, subdivision 12, Constitution, wbicli provides: “The Legislature is prohibited from enacting any private or special laws in the following cases: . . . (12) Incorporating cities, towns or villages; changing or amending the charter of any city, town or village; laying out, opening, vacating or altering town plats, highways, streets, wards, alleys or public grounds. ... In all cases where a general law can be applicable, no special law shall be enacted.” And in section 5, article 11, which reads as follows: “Corporations for municipal purposes shall not be created by special laws; the Legislature, by general laws, shall provide for the incoi’r poration, organization, and classification of cities and towns in proportion to population; which laws may be altered, amended or repealed.” The Legislature is prohibited from enacting any special law when a general law can be applicable ; and, by section 5, article 11, municipal corporations shall' not be created by special laws, but general laws may be enacted, which may be altered, amended, or repealed. The statute in question is a general law, applying to all the cities in the State, without which the boundaries of the several incorporated cities in the State existing when the Constitution was framed might not be changed, but must remain indefinitely as existing at that time. This could not have been the intention of the framers of that instrument, nor would such a rule be in accordance with the spirit and terms of its provisions. See Eureka City v. Wilson, 15 Utah 53, 48 Pac. 41. The statute under consideration was adopted from Iowa. The Supreme Court of that State, under similar provisions 2 of the Constitution, has held the act constitutional. This determination should, at least in doubtful cases, be considered as favorable to the constitutionality of the statute. People v. Ritchie, 12 Utah 180, 42 Pac. 209.
It is not without doubt and difficulty that we have arrived at the above conclusion. Many authorities from a high source hold a contrary doctrine — notably, the case of City of [333]*333Galesburg y. Hawkinson, 75 Ill. 158; People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; Territory v. Stewart, 1 Wash. St. 98, 23 Pac. 405, 8 L. R. A. 106; People v. Town of Nevada, 6 Cal. 143; Alcorn v. Hamer, 38 Miss. 652; Board of Harbor Com’rs of Port of Eureka v. Excelsior Redwood Co., 88 Cal. 491, 26 Pac. 375, 22 Am. St. Rep. 321. Considering the conflicting authorities upon this subject, and the high standing of the courts holding a contrary view, we 3 can not say that we have no reasonable doubt as to the constitutionality of the law, independent of the fact that we may have adopted- the construction of the court of Iowa when we adopted the statute from that State. When such a doubt exists, the statute will be. upheld. Cooper v. Telfair, 4 U. S. 14, 1 L. Ed. 721; Sharpless v. Mayor, etc., 21 Pa. 147, 59 Am. Dec. 759; Adams v. Howe, 14 Mass. 340, 7 Am. Dec. 216; State v. Tingey, 24 Utah 225, 67 Pac. 33; Supervisors v. Brown, 112 U. S. 268, 5 Sup. Ct. 125, 28 L. Ed. 704.
The judgment of the district court is affirmed, with costs.
BAS K 11ST and BAETCH, JJ., concur.