The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-12-23
DEMURRER OvERRULED.
COMPLETE VICTORY FOR THI
PETITIONERS.
Answer Filed Soon After the Ad-
verse Decision-No Trace of Ed
son Yet-New Canal Contract-A
Double-Briefs.

| against the county commissioners was
rendered yesterday morning by Judge
Eiles and was a complete victory for
the petitioners: the demurrer being
overruled on every point. The opinion
is concise one. and being the first
in this jurisdiction on that subject at
tracted much attention from attorneys.
Following is the decision in full:
John Seaman. plaintiff. VS.. Weber
county, public corporation, e. W. Wade,
w G. Wilson and John C. Child, as
county commissioners of Weber county,
The demurrer to the complaint in this
section is put upon two of the statutory
grounds:
1. That this court has no Jurisdiction of
subject of the action.
=. That it does not state facts sufficient
| to constitute a cause OF action against
| The complaint is brought to obtain de-
! cree OF this court enJoining the county
commissioners of Weber county from de-
voting an alleged public road in ogden
canyon, Weber county. to the exclusive
permanent use and occupation of the Pio-
neer Electric Power company, a private
corporation of Utah.
2. To enjoin and restrain the county
commissioners from creating obligations
/ against Weber county, to be paid out of
i the current and ensuing tax lev:es upon
] the property of the citizens, taxpayers
and Inhabitants of the county. for the
| construction Of other alleged unnecessary
| highways, to take the place of the high
| way which is 10 be surrendered by the
/ commissioners TO the use and occupation
of the before mentioned corporation. as
aforesaid.
think that the second ground of de-
murrer, viz, that this court has not
| jurisdiction of the persons of the defend
ants, or the subject OF the action, may
| be dismissed with the observation that
| the constitution and statutes of this state
confer exclusive original jurisdiction on
the district courts of actions of subject
matter such as this; and the defendants
are all present in court, and therefore the
court has jurisdiction of the persons.
As TO the demurrer that this complaint
/ does not state facts sufficient to consti-
/ tute cause of action, 1t nay be said
that the counsel for the plaintiff claims
/ that the complaint tenders the issues
! which l have before stated. This Is de-
MED by the defendants counsel in argu-
ment, and they claim that the complaint
alleges nothing more than that the county
commissioners are about to or have en-
! tered into a certain contract with the
| Pioneer Electric Power company. There Is
no demurrer TO the complaint on the
ground of uncertainty or ambiguity or
uninteligibility. Therefore. whatever L
might think about the pleading being OBJ
noxious to all or either of these objec-
tons, If demurred to on those grounds,
l cannot here consider ii. because no
such ground or grounds of demurrer is
assigned. 1 am of the opinion, upon
construction of the whole pleading. that
the complaint does allege, in substance,
that the defendants, as county commits
sionerS of Weber county, are about 10
devote an alleged public road in Ogden
canyon to the exclusive permanent use
and occupation of private person. with,
out cOmpensati ton therefor, in the way
OF providing another sufficient highway
or otherwise; and, second, that they are
a n or an 10 far nj
against Weber county. to be paid out of
| its public treasury, for the purpose of
constructing other alleged unnecessary
highways, to take the place of the high
way which they have surrendered or are
about 10 surrender to a private corpora
tion, without any compensation therefor;
and that these acts are to be done-not
for the benefit of the public. but for the
benefit of a private corporation. aF
Such being the proper Interpretation
and construction of the pleading, the
question is: Does it state cause of ac-
ton?
If the allegations of the complaint be
taken as true (as they must be for the
purpose of this demurrer), the county
commissioners of Weber county are about
to devote a valuable public right and
easement in Weber county to the exclu-
sive possession and permanent occupa-
ton and use of a private corporation,
not only without compensation therefor
to the county, but in addition thereto are
about to enter the county into pecuniary
ODuSdUOnS Wnlcn are 10 De paid out Oh
the taxes paid into the public treasury
thereafter, to provide other roads for
the public use, to replace this which is
thus sequestered TO. the uses of 9ri-
yate corporation. That this is a valua-
BILE easement is obvious, because the
plaintiff alleges, and it is admitted, that
t would cost $4,000 to provide another
highway for the highway which is thus
to be destroyed and sequestered. This,
il seems to me, on plain principles, would
be an abuse of the powers of the COM
missioners, an abuse of the power OF SUI
pervision and control which the statute
confers on them over the public reads
of the county. Therefore, if the allega-
tons of the complaint be true, an injune-
ton ought to issue to restrain them from
this proceeding, and in such case in
junction, and not prohibition, is the
proper remedy.
AS to the second ground of complaint.
viz, that the commissioners threaten and
are about to create oecuniary obligations
against the county, l think it is not
necessary TO wait until the obligations
have been created, and parties have spent
their money on the faith of them before
the court ought to act. On principles
of common sense and fair dealing among
men, the court ought to interpose to pre-
vent a threatened wrong and injury. In
deed, such is one of the principal offices
OF the writ of Injunction. To the eye
OF reason. practical justice is fhe es-
sential thing court of equity will not
wait until all the preliminary acts con-
shutting the threatened wrong are COM
pleted before granting its equitable inter
ference if it can see that the threatened
wrong will be done unless ii -nterposes-
This case is not one of threatened exer-
else of Jurisdiction by the board of COM
missioners in excess of its authority or
power, but is an alleged case of abuse
and threatened continued abuse of its
powers and authority as such board of
commissioners
l am OF the opinion that the principles
and doctrines enunciated by the supreme
court of Iowa in Rice VS.. Smith @ Iowa,
570) and of Champion VS.. Zabriskie Q0l
u. s.. GOD, are applicable here, and that
the demurrer TO the complaint should be
overruled; and it is SO ordered.
Judge Hiles gave the defendants ten
days in which to answer, but the an
swer was fled in a few hours b. At
torney LIE Grand Young. The answer
denies that the highway which it is
proposed to close is in Huntsville ex-
cept a few rods, and alleges that it is
in Eden; denies that the roads were
needless. that they would cost more
than 10000. or that they are for the
sole use and benefit of the Pioneer
Electric Power company.
1t admits that t1-8 defendants have
entered a contract with the Power
company, but denies that the resultant
indebtedness will necessitate liabil-
ity in excess of the amount allowed by
law. 1t admits that +. w. Wade is in
the employ of the Pioneer Electric
Power company, but denies that his
official actions as commissioner are
affected thereby, and that any. con-
spiracy to appropriate public funds