Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1902-04-14
as follows.
NYE's OPINION,
Salt Lake city, Utah. April IL. 1902.
Hon Ezra Thompson. Mayor

~ - - - $3.50
Salt Lake city. Utah. April IL, 1902.
Hon Ezra Thompson. Mayor,
Dear slr-Replying TO your inquiry
and reauest Tor an opinion as 10 the
legality OF the proposed contract be-
tween salt Lake city and the three
canal COMPANIES referred to In the res
omtion passed by the city council
April /. and the resolution passed by
them April S. 1902 and which contract
has for its main and ultimate object
the construction Of a pumping plant
at the Jordan NarrOws, by the city
and the canal companies Jointly for the
use OF all | have no hesitation In say
ing that the city has no power 70 enter
into such contract and that any at
tempted outlay Of city funds in aid or
such contract could unquestion1bly be
enioined and prevented by a citizen
taxpayer.
The question is, Has the municipal
ity a right TO have part ownership
OF property" or may the city enter
into partnership with private indivld-
nails. or CORPORATIONS? This precise
question has recently been before the
supreme Court OF the state OF Ohio,
and there. too, II was a question OF u
proposed Joint ownership Of plant FOR
increasing the water supply OF the
municipality proposing 10 enter into
the contract. and the court held that
Notwithstanding the fact that there was
express legislative authority for the
contract as proposed, the city mad no
power 10 make the contract and per-
uetually entoined the city from entering
into the coJract.
The decision is based upon the pro-
hibition Of article s, subdivision OF the
constitution of the State Of Ohio, which
Is almost word for word the same as
article G. subdivision 81, OF the Con-
stitution Of this State, as follows:
Sec. g. Lending public credit for
bidden). The legislature shall not au-
thorize the state or any county, city,
town. township, district or other politl-
cal subdivision Of the state to lend its
credit or subscribe to stock or bonds In
aid OF any railroad telegraph or other
private individual or other corporate
enterprise or undertaking.
True in Ohio there was an express
legislative enactment authorizing the
act of the city, which enactment was
held unconstitutional and void and
in the proposition now beforei Salt
Lake City, action is proposed without
express legislative authority, but It
has been decided by many courts and
finally by the Supreme court OF the
United States that "a restriction on the
power OF the legislature TO authorize
municipal corporations to grant aid
etc." does not empower municipal
CORPORATION 70 act without legislative
sanction
IL has been confessed from the very
inception Of the idea OF establishing
pumping plant 10 be owned Jointly by
the city and canal companies that un-
less the city came to the rescue, the
people who are owners OF water rights
In the canal companies would be left
to perish" and the city has been urged
to be liberal" to extend a helping
hand" to mot exact the last farthlng,
and to lend It's credit to the enter
prise. showing that the very evil pro-
hibited by the constitution Is proposed
under the popular guise of phllan-
thropy. No doubt inherent generosity
has prompted the individual members
of the council IN the action taken, but
unfortunately the law forbics the use
OF public funds In the manner pro-
posed.
The section OF the Constitution re.
eerred 20 not only prohibits a business
1 artnership. which carries the idea Of
a Joint or undivided interest, but II
goes further and prohibits a munich
pality from being the owner OF part OF
a propertv which Is owned and con.
trolled In part by a corporation or IN
diyidual The municipality must be
the sole owner and controller OF the
property I'm which IL Invests its public
funds. A union Of public and private
funds or credit. each In aid OF the other
Is forbidden BIZ the constitution. There
can be no union Of public and private
funds or credit. nor OF that which Is
produced by such funds or credit The
whole ownership and control must be
In the public.
An agreement to give the city the
MANAGEMENT OF the entire plant and
lie operation when constructed, would
not cure, the evil. because a lease OF
the interests OF the canal companies
would have 10 be first obtained upon
such terms as might be agreed upon
and that would preclude the opera
ton OF the works by the city as sole
proprietor,
AS previously referred TO, the ultl-
mate object OF the resolution Of April
s. which is now before you, Is a con-
tract for the investment Of public
funds in conjunction with the funds Of
private corporations. In the erection
OF a pumping plant TO be used In con-
nectIon with the existing canals and
Irrigation systems OF the canal com
panies and the city, and thereby 20
lend the aid OF the city TO the canal
companies. Incidental benefits TO the
public cannot be considered and no
play upon words or attempt 70 accom-
plish Indirectly that which Ia forbid