The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-01-18


cannot be sold, leased, or in any man.
ner alienated, without special legisla-
tive authority, is too Wen established
to be longer a matter of controversy.
After citing a. number of authorities
! the court continued:
1t follows, therefore, that inasmucn
a. the water system owned by ogden
! City was held in trust by the city coua-
ell for public purposes, the city coun-
ell was incapable of selling, giving
away, turning over, or otherwise trans
ferring the same, and the defendants
and their predecessors in interest.
knowing. and being by law charged
with the duty of knowing, that II was
trust property and obtaining the same
in violation of said trust, is an invol-
untary trustee for said property, for
the benefit of ogden City.
THE city council thus not having any
authority to abrogate its governmental
/ powers and functions, it follows that
the contract entered into between the
mayor and Boutwell,, and also the res
/ olutiOn turning over the WaterWorkS TO
the defendant company. were void alb
! initiO Besides, under its charter the
city could not grant such rights or
property by mere resolution, the pro-
visions being, that the city council
shall have the power to authorize the
construction and maintenance OF water
works, and to pass ordinances carrying
such powers into effect Comp. laws,
sec. 1755.)"
Concerning the claim of the defend
ant that the present system is not the
same system used formerly by Ogden
City, the court says:
1T is very likely that the city has
so conducted itself that upon the final
hearing in this case the court will COM
pei it to reimburse the defendant COM
I W. irb nv a
acts of the defendants and the officers
of the city, has been permitted to be
placed as a betterment upon the city S
public property, but that does not con-
Germ US upon this hearing. If any por-
tons OF the. property placed around or
about the property of the city, not alb
solutely necessary for the purpose of
carrying out the purposes for which
it has been dedicated and has been
used, can be distinguished and sepa-
rated from the remainder, and the city
has no interest in such property, then,
of course, a receiver would not take
possession of such property. But, upon
the other hand, where wrong-doer has
knowingly so conducted himself that
TO permit him to remove his own prop
erty would materially injure or abso-
lutely destroy the property of another.
not himself at fault. then a court of
equity will not permit a separation of
such property, but will endeavor to do
justice in some other way.
RECEIVERSHIP ORDERED.
"As I view the facts in this case,
giving the denials in the answer their
full merit, the admitted and proven
facts show that the interest of the
plaintiff in the property set out in the
complaint is more than probable. Those
facts are: That the property turned
over to the defendant company was the
property of the city; that the defend
ant company accepted such property
under a resolution OF the city council;
that they now use at least part of that
property; that the substance of that
property consisted, and still consists, of
the combination of water and water
works system: that the defendant COM
pany has now connected, inSeparably,
for the purposes for which it was con-
structed and is used, part of the prop
erty turned over to it by the city, with
part of the property belonging TO the
defendant; that the defendant company
has collected, and still intends to col
lect, ali the rentals resulting from
such combined property.
Under such a state of facts the law
says that property thus acquired bg a
city is public property, which cannot by
any act OF the city council be alienated
from the public, much less by d simple
resolution of its chosen officers, when
the statute specifically provides another
method and that, if the defendant, be-
ing knowing party to the violation of
law, mixes property of another (who is
incompetent to contract concerning
such property with his own property,
so that the uses and purposes of its
construction would be destroyed, and
the wants and necessities Of the public
Ia l. 4asav- g.f oh,
properties, then the law will not permit
the defendant to hold such specific
property. Ii, in addition to all that,
by reason of the insolvency of such
wrong-doer, there is grave doubt
whether the rentals that have been and
will be illegally collected by the defend
ant, can ever be collected, then a very
strong. case is shown for the interven-
ton of a court of equity in the appoint
ment of a receiver.
Il am, therefore, of the opinion that
a receiver should be appointed to take
charge of the property set out in the
complaint, and the rentals derived or to
be derived therefrom; also such books
and other personal property in the
possession of the defendant as. have
heretofore been used in the operation
of such waterworks.
Let the order be prepared
JUDGE DEE APPOINTED.
AT 5 o'clock yesterday afternoon the
defendants came into court and asked
that they be permitted 10 give a bond
in the sum of $4,000 and continue in
possession of the waterworks. Their
petition was supported by affidavits to
the effect that they could furnish a
good and sufficient bond, and said that
they had not anticipated the appoint
ment of a receiver. They argued that,
as the original system, according 10
the pleadings, was worth not to ex-
coed 500, O00 and the present system,
according to the city engineers re-
port, was worth $267 000, they had an
interest of at least S167 600 and that
the city's interest would be fully pro-
tected by the bond Their application
was denied and the court signed the
decree.
The attorneys for the respective
sides were unable to agree upon any
one satisfactory to both sides as re-
ceiver and the court thereupon ap-
pointed Thomas D. Dee, fixing his
bonds at $4,000. He Immediately quail
fed, with David Eccles and H. H.
Henderson as his bondsmen. The
keys of the office were turned over to
him by Mr.. Rowe and he took formal
possession. All of the money that has
been collected since the first of the
year on water rents will also be turned
over to the receiver as the rents are
collected in advance.
All of the waterworks employees are
to meet at the company's office at 8
o'clock this morning, when they will
receive their discharge from the COM
pany and do business thereafter with