(concurring and dissent ing):
I concur that the defendant city may lawfully require water connection fees to be paid at the time the main line running through the subdivision is connected to the city system and water is brought to the edge of each lot. I arrive at this conclusion *906in view of the authority invested in cities and towns to "construct, maintain and operate waterworks," § 10-8-14 U.C.A.1958; to "fix the rates to be paid for the water use," § 10-8-22; and to "enact ordinances, rules and regulations for the management and conduct of the waterworks system owned or controlled by it," § 10-7-14. It is not unreasonable to require payment of the connection fee when the water is turned into the main line coursing through the subdivision because at that time the defendant city is obligated to furnish water to each and every lot as requested. In order to prepare to do this, the defendant city had to make capital expenditures to enlarge its capacity so that it could meet the new demands to be imposed upon it. I concur that § 10-8-38 is not a prohibition against advance collection.
I also concur with the criteria of reasonableness contained in Parts III and IV of the majority opinion.
I dissent, however, from the holding in the majority opinion that the city may lawfully impose park improvement fees. I concur with the reasoning of Justice Wilkins in his dissenting opinion in Call v. City of West Jordan, Utah, 606 P.2d 217 (1979). The imposition of the park improvement fees is even more offensive in this case since the city conditioned the furnishing of water service to the subdivision upon their payment. To me the two subjects are entirely separate and I believe it to be an abuse of the city's authority to own and operate a waterworks system (a proprietary operation) to use the furnishing of water as leverage to collect fees for other unrelated purposes. Section 10-8-38 authorizes cities and towns to discontinue water service to premises where the sewer service charges have not been paid, but I find no authorization to also deny service until park improvement fees have been paid.
MAUGHAN, C. J., concurs in the opinion of HOWE, J.