I am of the opinion this appeal entitles the appellant to some further statement by the court as to the extent and limitation of the opinion in the case of Genola Town v. Santaquin City,96 Utah 88, 80 P.2d 930. As stated by counsel for appellant: "Our purpose here is to procure from this court an adjudication of the meaning of the original decree in the light of the constitutional provision of this state touching the matter of culinary water supply of a municipality." Counsel disclaims any attempt by this appeal to relitigate matters litigated in the former case.
As the matter is now presented, the situation becomes one of applying the law and statements in the opinion to a set of facts that it seems to me now may not have occurred to us when the opinion was handed down.
In so far as the exchange part of the agreement is concerned, I agree that under the constitutional powers municipalities are granted municipalities are not prohibited from exchanging water rights or sources of water supply of equal value, and to be devoted in like manner to the public supply of the inhabitants.State ex rel. Ellerbeck v. Salt Lake City et al., 29 Utah 361,81 P. 273. *Page 66
That the Constitution, without qualification, mandatorily imposes a prohibition upon the sale or leasing of waterworks, water rights, or sources of water supply is not open to question. Constitution of the State of Utah, Article XI, Sec. 6. It would be difficult to frame such a prohibition in clearer language:
"No municipal corporation, shall directly or indirectly, lease, sell, alien or dispose of any waterworks, water rights, or sources of water supply now, or hereafter to be owned or controlled by it; * * *."
As if not satisfied with imposing the prohibition, the framers of that document then made it a mandatory duty that "all such water-works, water rights and sources of water supply now owned or hereafter to be acquired by any municipal corporation, shall be preserved, maintained and operated by it for supplying its inhabitants with water at reasonable charges." Then follows the clause providing for exchanging water rights of equal value "to be devoted in like manner to the public supply of its inhabitants."
What I fear is that what was said in the case of Genola Town v. Santaquin City, supra, and is restated in the prevailing opinion on the present appeal in the same entitled case, as contended for by appellant's counsel, may be subject to an interpretation broader than was intended.
The language used it:
"We construe the agreement to require the City to deliver to the Town at all events water in the amount specified. Whether the 60 shares to be given to the City do or do not entitle it to a continuous flow, whether with or without a lawsuit, the obligation of the City remains fixed and certain, i.e., to deliver to the Town a specified amount of water. * * *
"But may it obligate itself to deliver a definite amount in perpetuity? We think this agreement is in effect a parting with its water right pro tanto. We see no real difference in parting with a water right which yields 100 gallons per minute by transfer and obligating one's self to deliver from a water right 100 gallons per minute in perpetuity." *Page 67
Such language might or might not run counter to the prohibition to lease or sell as contained in the Constitution. When it comes to such a situation as this appeal presents in a season when the fluctuating supply of the water right owned by Santaquin City falls below the quantity actually owned and needed by the city for supplying its inhabitants at the time of making the contract with Genola Town, and no water is available to supply the needs as thus measured by the Santaquin system, it would then amount to a violation of the constitutional provision if Santaquin is required "at all events to furnish the amount specified."
The construction of the contract should protect Santaquin City against contingencies when to meet the requirement of a specified quantity because of conditions over which the city has no control, the city should not be required to do that which amounts to a violation of the Constitution relating to prohibited lease or sale.
To hold officers of a municipal corporation guilty of a contempt upon the interpretation of a contract relating to an exchange of water rights, when nature has imposed a condition such as the record reveals, imposes an obligation not permitted by the Constitution, and the opinion of this court should not be so construed. *Page 68