The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-03-27

express authority of legislative enact
ment. and that no such authority being in
existence the transfer relied upon by the
defendants was absolutely void
If the defendants are right in their
contention. the plaintiff has no right to
I the water system or water right in dis
I pute. or to the control of the business and
I the appointment of the receiver must be
/ held to be erroneous. On the contrary, II
the plaintiff is right in its contention. or
I we can say from the pleadings and evil
dence upon which the receiver was ap-
/ pointed. that the plaintiff is probably
| right in its contention. and that the prop
/ erty or proceeds of the business was in
danger of being materially injured or
any considerable part of it was in danger
/ of beir- lost If left in the hands of the
! defendants, the Bear River Irrigation *
! Ogden Waterworks company during the
tendency of this suit. we must hold that
the appointment of the receiver was not
erroneous.
CITY LACKED POWER.
As 20 the first proposition in the order
We will consider them. was the city Of
| Ogden authorized TO enter into a con-
I tract transferring its rights to the waters
and system in question to the defendants
or either of them?
! Ogden City was public corporation.
and its authority was limited to such
powers as were expressly granted by
| statute. and such as might be necessary
/ TO those expressly given.
| Undoubtedly water distributed to city
and its inhabitants is devoted to a public
4 use. and the entire system whether con-
/ sisting of reservoirs, conduits, pipes, or
other means used to accomplish the de-
| livery. are also dedicated to the same use
| The charter of Ogden City contained Il
provision authorizing il to purchase, re-
ceive. hold. SELL lease. convey, and dis
/ pose Of property real and personal for the
/ benefit of the city,
No authority is expressly or by neces-
sary implication given to convey. trans
fer or lease to a private corporation or
/ other person property used by the public
dedicated to public use.
The control and management OF prop
erty dedicated to the use of the people OF
! city is given for their benefit not Tor
| the individual benefit of the public author
| tiles. A public corporation is not legal
entity or person whose interests can be
considered separate and apart from It's
people. 1t is but an instrumentality
created and perpetuated for their benefit
Its officers. as such, are morning more
than agents of the public. They must
act within the scope of their authority.
! Their acts outside are perfectly lmpotent
from a legal standpoint. Their authority
and control of the property and rights OF
the corporation used by the people are
not given them for the purpose OF being
transferred to private corporations or
any one else, to enable them in that way
to deprive the public of its use; nor can
the city authorities divest the city OF its
rights to it, and in that way rid them
selves of the management and control or
it for the city and its inhabitants. They
can not derive the public use by convey
ing or leasing it to others, unless their
charter specially authorizes it, though
such other corporation or person may
undertake to give the public the use OF
it for compensation deemed reasonable
Such officers are selected by the people
to whom they are responsible, and they
may be removed and superseded by
others. While the use of public property
is controlled and managed by public Of
ficerS whatever compensation is received
goes into the public treasury. and If the
compensation exceeds the actual cost the
public gets the benefit OF the surplus or
net income. When property whose use is
devoted to the public. is conveyed or
leased to private corporations. though
contract may require its use to be given
to the public for reasonable remunera-
ton. the public. to a great extent. loses
it's control over it. and any net income
realized goes into the hands and pockets
of private parties; in fact such parties
cannot give the use of their property to
the public for the actual cost of it. and
the actual expense of the business as in
this case: they must have profits and 1t
is to the interest of such parties to make
the profits or net income as large as
public officials will consent to make it.
THE PEOPLE GET FLEECED.
The people usually get fleeced when the
city places its waterworks in the hands
of private parties. Public spirited men
are not at all times free from the undue
influence of self-interest. Their disDosi-
their inclinations to favor themselves.
Such are the leanings of human nature,
even when engaged in public spirited pro-
jects.
A city sometimes has on hand personal
and real property not devoted to the use
of the public. Fire engines, horses, or
other personal property may become un-
suited to the use for which they were
designed. and be replaced and cease to be
used. Public buildings may become unfit
for the public use, and for sufficient reas-
f-lf hrrild hn
same lot, and such buildings and the
lots upon which they stand may be no
longer used by the public. The city from
time to time may have other classes OF
property that has ceased to be used. or
is not Used by the public All such prop
erty of a municipal corporation not de-
leased under the general authority to sell
or lease. as the public welfare may de-
mand- Such property may be converted
into money or other things. and in that
But property devoted to public use can
not be sold or leased without special
statutory authority.
THE GRANT IS VOID.
It follows that the writing purporting to
grant to John r. Boutwell,. the right of
Ogden City to furnish water to it and its
inhabitants and to lease to him f-s water
rights as long as he. or his assigns
should furnish water to it. and the reso-
luton of its city council, purporting to
turn over 10 the Dear LAKE anu JAlEti
Waterworks company the waterworks
system of the city were absolutely void.
because made without authority of law.
1t appears from the pleadings in the
record that about seven years interviewed
after the corporate defendants took actual
possession under the void grant and
lease, before this suit was instituted. and
that nearly all of the pipes and other
parts of the water system delivered tO%he
corporate defendants by the plaintiff had
been replaced. and that the Distributing
system had been greatly added 10 and
extended; that the Bear River Irrigation
q Ogden WaterWorks company had ex-
pended more than 59.925.S0 in replacing
the old system and in adding to and ex-
tending it: that the replacement of such
new system at this time would cost that
amount. While we are of the opinion that
the attempted transfer of the old water
works system by the plaintiff. and the
leasing of it's water right was invalid. and
the city of Ogden must be held 10 be the
owner and entitled to the possession and
control of the remaining portion. the pos
session of which il transferred to the cor
porate defendants. and that it is the