(concurring, but adding comments).
I am in agreement with the court’s decision, but I desire to record these separate comments pertaining thereto.
It seems to me that this case should be decided upon the Constitution and laws of the state of Utah. It is to be noted that the provision of Section 4, Article I, of the Utah Constitution, which our decision quotes, is more articulate and express in assuring religious liberty and prohibiting discrimination, or church interference with private or public rights, than the generality of the First Amendment of the U. S. Constitution.
More important than the foregoing, I am not in accord with the idea that the First Amendment is made applicable to State action by the Fourteenth Amend*311ment. It is true that the United States Supreme Court has made this statement with respect to various of the rights assured by the first ten amendments (Bill of Rights) as part of the system of liberties which should he assured in the free society. That is fine sounding language indeed. But as applied to problems such as the instant one, it is but a specious pretext which has been used for defeating the clearly declared intent of those amendments, and for the federal judiciary arrogating to itself powers which were never intended by the founding fathers.
It should be remembered that those amendments were all adopted and approved in one package; and that because of fears of an overpowerful federal government, (now proved so well justified) they included these precautionary provisions:
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The impropriety of this process which is continuously going on, of divesting the States of their prerogatives and responsibilities, is seen in sharper focus when it is reflected that the language of the First Amendment itself is but an interdiction against “Congress,” i. e., that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”; and in realizing how far beyond any intent, express or implied, of the framers it has been distorted and proliferated. The desirability of maintaining a balance between the sovereignties of the states and the federal government as one of the essential balances in our American system of government was pointed out by Chief Justice Evans Hughes in an address to the joint session of Congress in the Sesqui-Centennial Commemoration, 4th day of March, 1939.1
Turning to another matter: It is perhaps not amiss for the opinion to point out that if the lessor (County and City) elects to transfer the hospital to the lessee (Health Services) it might be an unconstitutional transaction. However, it is also to be noted that this could not happen until after 25 years; and that even then, whether such a transfer would be unconstitutional may well depend upon circumstances which then exist, and what arrangements would be agreed upon by the parties. But there is no present issue as to the constitutionality of such a future transaction. We need not *312and should not anticipate unconstitutional conduct, but the contrary.
ELLETT, J., concurs in the views expressed in the concurring opinion of CROCKETT, J. HENRIOD, J., concurs in the views expressed in the concurring opinion of CROCKETT, J., except for the last paragraph.. Reported in: Formation of The Union Under The Constitution, edited by Sol Bloom, pp. 675-6.