(dissenting).
I respectfully dissent. Ogden concedes that if the statute had given it the power, the contracts with these utilities would have been perfectly valid, except for the city’s gratuity that they could not be for too long a period of time,1 — but that is not its point on appeal. Its point on appeal is that the city “in the absence of express statutory authority from the legislature, may not contract away its power of taxation.” This concedes that it could contract away its power of taxation if the legislature gives it that power. Such a conclusion pretty clearly is reflected in-173 A.L.R. 25, et seq., and the cases therein cited, — and that such contracts are enforceable under Art. I, Sec. 10, of the U. S. Constitution with respect to the interdiction against laws impairing the obligation of contracts.
The only point then, is whether Ogden had the power to enter into the contract. The main opinion’s whole thrust is that it had no such power, — and that is the law of this case and the only law of this case — - a conclusion with which I disagree as evidenced by this dissent. I think Ogden had such power under the statute for the following reasons:
Title 10-8-14, U.C.A.1953, as amended in Laws of Utah 1969, Ch. 28, Sec. 1, provides that cities may “authorize the construction, maintenance and operation * * * by others” of “gas works, electric light *194works, telephone lines” etc. Invariably and necessarily such authorization involves a contract, with terms and conditions. As has been pointed out above, one of those conditions legally could be a provision for a certain percentage of gross sales “in lieu” of taxes, — or, as a substitute, which one could reason, is synonymous with “taxes,” — all of which would be protected against arbitrary increase under Art. I, Sec. 10, of the U. S. Constitution. This would be a condition that would seem to be not too different or onerous than terms requiring height of poles, placement of transformers, specifications for facilities, safety measures and the like. As the city grows, so would the “in lieu” amount.
The only question, as suggested above, is legislative authority, and I think our own cases would sanction the inclusion in such contract of that perfectly legal “in lieu” provision, as being a power necessarily or fairly implied in the city, — a doctrine we have enunciated so many times as to require but a few cases to be reported here. Perhaps the principle was as succinctly stated as any place else in American Fork City v. Robinson,2 where we said:
That the powers of the city are strictly limited to those expressly granted, to those necessarily or fairly implied in or incident to the powers expressly granted, and to those essential to the declared objects and purposes of the corporation, is settled law in this state. Salt Lake City v. Sutter, 61 Utah 533, 216 P. 234.
The decision in the instant case certainly will not attract any new industry to any city in Utah by means used so extensively and successfully in the South, that encouraged new enterprise by extending a tax exemption for a specified time. Utah’s economy sorely needs an incentive to attract new business and the “percentage of gross in lieu of taxes” formula is an attractive one for those who might have risk capital for new business. Besides, it appears to this writer that defendant indulged in an unconscionable procedure by becoming signatory to a sacred contract, only to renege when it deemed it convenient, saying that now that we need money, we were illegal. This sort of unilateracy does not lend itself to respect for the law, and breeds suspicion in the minds of the citizens when they have occasion to do business with public officials. This case can do little else but provoke hesitation on the part of utilities or others having risk capital, in dealing with cities, when the former now must realize that any expansion in their investment may prove fruitless and perhaps a losing proposition when they know that the promises of municipalities are not worth *195the paper upon which they are written. The largest city in this state has subscribed to such departure from good faith by joining Ogden with a so-called brief “amicus curiae,” which is no “amicus curiae” brief at all, but simply a brief “amicus itself.”
I would reverse this case and require the parties to the contracts to live up to their terms strictly and in good faith.
CALLISTER, C. J., concurs in the dissenting opinion of HENRIOD, J.. It is interesting to note that this court held enforceable a contract executed in 1888 wherein Salt Lake City agreed to furnish water to the Capitol Building and grounds forever, in S. L. City v. State, 22 Utah 2d 37, 448 P.2d 350 (1968).
. 77 Utah 168, 292 P. 249 (1930); Stevenson v. S. L. City Corp., 7 Utah 2d 28, 317 P.2d 597 (1957); Salt Lake City v. Allred, 19 Utah 2d 254, 430 P.2d 371 (1967).