The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1906-08-16
RIGHTS COMPARED
IN CONTRACTS
Opinion Given on Boutwell,
Contract and Franchise
Granted WaterWOrkS Co.

The citizens who are contestinR the
franchise granted the Ogden Waterworks
company short time ago have requested
attorneys Dey & Hoppaugh Of Salt Lake
ana Aimban & Skeen of Ogden TO give
an opinion in respect to the legal rights
at the present time of Ogden City under
uhe Bothwel contract which was made
IN 1899 as compared TO the recent fran
Shise which is supposed to supersede the
ootnWeH franchise. The attorneys I'm
NuSsuon nave prepared an opinion, which,
owing 10 the short time given does not
cover all the matters connected Herewith
put which will be gone into fully in the
~ I,.I'ite future by the same attorneys,
~ Which time the addition to the opinion
MADE public yesterday viii be given out
Inc conclusions reached by the attorneys
are as follows:
THE first question Of vital tr,oortanca
10 ogden City and its inha bitants appears
70 be whether the city council Of Ogden
mas the lawful right under either of said
duce water rates
Upon this important question after
careful consideration. IL is our opinion:
tD Ihat under the Boutwell, contract
or franchise, the city council has the legal
right and authority TO reduce the water
rates therein stipulated, provided the
same are excessive and unreasonable and
TO DO so from time TO time, as conditions
may warrant, and that in so doing the
water company is abundantly protected
for the reason that the reasonableness OF
the rates fixed may be reviewed and cor
rected by the courts.
OBJ That under the new contract or
franchise the city council has attempted
TO divest itself for fifty years of its power
TO fix rates by the express provisions OF
the contract, and If the contract is legal
water rates cannot be again changed or
fixed by the city council during the life
OF the grant.
The principal reasons that compel us
TO these conclusions, we will refer to
briefly:
1T is we'll settled principle that pri-
Nate property is subject to public reglila-
ton when il is devoted to public use
Upon this principle, the legislative
power OF the sovereign to fix rates that
may be lawfully exacted in a business az
fected with public interest, such as
public service companies supplying water
gas, electric lights. transportation, etc.
is established beyond question; also, there
seems to be no doubt as to the power of
the state to delegate it's power to fix and
regulate rates and charges for such serv-
Ice to its municipal corporations
AT the time of the Boutwell, contract
In 1889. the legislature of Utah had dele
gated to its municipal corporations Gin
Guiding Ogden City,, the express power
TO fix the rate Of tax to be paid for use
of water furnished by the city or anv
other person or corporation 1 Comp.
Laws, 1888, Sec. 1850. Sub. 20. and such is
still the law Of Utah. This legislative
power so delegated to the city council is
with the Boutwell, contract
Whether this legislative power TO fix
rates may be limited by contract so as 10
be binding upon the city is by no means
clear upon authority; but the supreme
court of the United States has repeatedly
held that in order TO make sucn a con-
tract, the language must be plain. and
susceptible of no other construction
Sanilus Co. VS.. San Joaquin c. & l. Co,
1872 L. s., O1-s.
Freeport Co. VS.. Freeport City, 80 L.
S. $3.50.
This new franchise of July 30 1906 Is
a striking illustration of the plain lam
guage necessary 10 make such a contract
binding under the r-le laid down by the
United States supreme court, for it is ex-
pressly stipulated therein (Sec 81: The
grantee herein. its successors and assigns
may charge and collect the rates enum-
Grated in the following schedule .
and shall not be increased or diminished
during the term of this franchise, except
as hereinafter provided
by section 10 IL is provided:
" The water schedule and rates herein
before mentioned shall be readiusted lex
cePt FOR hydrants) every ten years. by a
committee OF three; one TO be appointed
bv the city council. one TO be appointed by