I concur in the result making the writ permanent. In the priorFjeldsted v. Ogden City Case and in the Wadsworth v.Santaquin City Case, I, as shown by my dissenting opinion, 28 P.2d 154, was of the opinion that the plans or projects as proposed by the municipalities did not, on the theory of the special fund doctrine, constitute the creation of a debt prohibited by the state Constitution referred to in those cases. While the majority court in such cases, disclaiming an abrogation of the doctrine, yet placed such a limitation on it, which, as I think, greatly impaired the application *Page 320 of the doctrine and for all practical purposes rendered it ineffectual; and upon such limitation and restriction it was held that the plans as proposed and the obligations to be incurred constituted the creation of a debt prohibited by the Constitution, and thus a permanent writ was granted restraining the municipalities from going forward with their proposed projects. The court, however, in such cases, in effect, indicated that if by the plan or plans proposed provisions be made for a segregation or allotment of net revenues derived from the operation of the entire system after the improvements and betterments are made and a proper allotment made of such net revenues to the old system as it existed before the improvements and betterments were made, the remaining net revenues allotted to the improvements and betterments and the payment of bonds issued to secure funds for the construction of such improvements and betterments restricted to such net revenues so allotted to and derived from the improvements and betterments, such a procedure or process would not constitute the creation of a debt forbidden by the Constitution.
After the opinion in the first Fjeldsted v. Ogden City Case, the Legislature, by what is called the Granger Act, attempted to promulgate a rule or method of segregating and allotting such net revenues, which, if pursued, the Legislature in its majesty declared should not be considered a debt coming within the constitutional provisions dealt with in the Fjeldsted Case. And so, in view of that case and of the legislative declaration, Santaquin City proposed a plan of improving its waterworks and sewer systems by issuing and selling bonds to raise funds for such purpose and attempted to make a segregation and allotment of net revenues on the theory as indicated and payment of the bonds restricted to the net revenues derived from the improvements and extensions to be made with such borrowed money, but this court held that the proposed segregation and allotments were arbitrary and capricious and thus granted a permanent writ restraining the city from going forward *Page 321 with the project. We now have this, the second Ogden City Case, where, as indicated in the main opinion and for reasons therein stated, the reformed or substituted plan of the city attempting to create a lien on net revenues to secure the payment of bonds to be issued to raise funds for the construction of the improvements and betterments was faulty and that the plan as proposed still constituted a debt forbidden by the Constitution and thereupon another permanent writ is granted preventing the city from going forward with the proposed project.
Now, while I in the cases referred to dissented from the rulings of the majority court, which rulings, as I think, constituted a departure of the special fund doctrine, I now feel constrained to yield to such departure and to consider the case in hand from such viewpoint. We have here a situation or condition where Ogden City owns a waterworks system, which, because of needed repairs and replacements of worn out and defective conduits and pipe lines, was inadequate to supply the city and its inhabitants with needed water, and because of such defective condition irreparable loss was occasioned in the carriage and distribution of the waters. The city already had a bonded indebtedness of over $1,500,000 which was created by the purchase and construction of the system, but which bonded indebtedness was payable from general taxes to be levied for such purpose, and not out of revenues derived from the operation of the system. It now is deemed necessary and the city proposes to borrow $645,000 for the purpose of making such repairs, improvements, and extensions of the system. The problem to be solved is if such moneys are borrowed with which the repairs, improvements, and extensions are to be made and a lien given to secure the payment of such borrowed moneys on the net revenues derived from or attributable to such repairs, improvements, and extensions, how, when such improvements are made and the system operated as a unit and as a completed system and revenues collected from the use and operation of the entire system, may the *Page 322 net revenues, with any degree of certainty, be segregated and a portion allotted to what was the old system, and what portion allotted as being attributable to the repairs, improvements, and extensions. From the very nature of things I do not well see how such a segregation or allotment may be made with any degree of certainty, whether on the basis of respective costs, appraised values, or by any other method or process. The old is useful and valuable only as it is used with the new, and the new, as it is used with the old. To segregate the one from the other and attempt to so allot or apportion the revenues derived from the operations of the whole is as difficult and impracticable as to segregate and allot benefits of a jackknife where a new blade is put in an old handle and a portion of the benefits attempted to be segregated and allotted to the handle and a portion to the blade. And in the first Fjeldsted v. Ogden City Case it was conceded by the parties that it was impractical, if not impossible, after the improvements were made and the system operated with them, to determine what of the net revenues derived from the operation of the entire system were attributable to or occasioned by the improvements and what attributable to the old system. As said in Seward v. Bowers, 37 N.M. 385,24 P.2d 253, 255, with respect to a similar question, "it would be a physical impossibility to determine what portion of the proposed revenue is attributable to the improved plant in its entirety, to the improvements alone, or to the present plant." To that effect is also the case of Searle v. Town of Haxtun, 84 Colo. 494,271 P. 629.
The Granger Act does not add anything to or aid the proposition. The Legislature may not declare what is or what is not in contravention of the Constitution, or even in an emergency or desperation lift itself by its own boot straps over barriers of the Constitution. Whether whatever plan or project which may be proposed is or is not the creation or incurring of a debt forbidden by the Constitution, is, and as was said in the Santaquin Case, a judicial and not a legislative question. *Page 323
Thus since the departure from the special fund doctrine and because of the impracticability of segregating or allotting net proceeds derived from the operation of the entire system after the improvements are made, I am of the opinion that the only method now open to the city to legally incur the proposed obligation and go forward with its project without offending constitutional provisions is by a submission of the proposition to a vote of the qualified electors having paid a property tax and a majority of them voting in favor of the proposition. That was not done; and that is what the petitioners from the start urged was required to be done to lawfully incur the proposed obligation and go forward with the project. I therefore concur in making the writ permanent.