(dissenting).
I dissent, believing that the contract was 1) ultra vires, 2) against public policy and 3) uncertain as to terms.
(1)There is no constitutional and very little judicial authority that sanctions municipal officers’ binding their successors for public purposes to an inordinately unreasonable time in the future.1 It seems to me that such reasonable time expired be-for 80 years. The contract here was 'for a public purpose, i. e., to stimulate business, etc., and there is no indication that the Capitol would not have come to Salt Lake but for the execution of the agreement. I would affirm the trial court on the ground stated above.
(2) This contract continues in perpetuity, is improvident, therefore, and against public policy. It would be interesting to speculate on what this court would do if it had a contract before it that was executed in 1926 guaranteeing to furnish Western Airlines, or a federal agency, water, and granting a large tract of land together with perpetual care and maintenance of needed runways and buildings, the like of which exists today at Salt Lake’s rapidly growing international airport — conditioned only on the airline agreement to make Salt Lake an airplane stop-off point. I am of the opinion that under such a contract the City would be broke by now.
(3) It is accepted generally that a contract, to be enforceable, must be certain as to its terms. This contract provides that water will be furnished free of charge from here to eternity and beyond — which certainly does not comport either with sensible certainty or sensible legal concepts relating to contracts. The contract is equally uncertain as to minimum or maximum amounts of water to be furnished during any special period, which size facilities are to be used, to what size building or buildings it is to be delivered, or as to how many *45people or animals benefitted and whether it shall be culinary or irrigation water.
I think the distinction between “proprietary” and “governmental” authority is not quite apropos in a case like this. Such distinction generally is made where tort liability and governmental immunity are involved. Here, the City has a duty to furnish water, the life-blood of a community, to its inhabitants irrespective of private contract. It had no duty ex contractu to furnish to one segment of the city population, — the state employee, — or to furnish water for Capitol shrubbery. In the instant case, the City by contract would have to furnish water to the Capitol, even though in doing so all of the City’s water resources may entirely be consumed and exhausted.
I would affirm the trial court.
. Rhyne, Municipal Law, Sec. 10-5, p. 261, which says “A municipal governing body may bind its successors for a rea-sonadle length of time for public purposes * *