I concur in the holding of Mr. Justice HANSON that the alternative writs heretofore issued against defendants should be recalled and the petitions of both plaintiff and the intervener should be dismissed. Such action must necessarily follow since the petitions were filed prematurely, and the writs improvidently issued. It appears that after the ordinances set up in the petitions of plaintiff and intervener were passed and ordained by the city commission of defendant city, a petition for a referendum on the ordinance was filed and accepted by the city as sufficient in form, substance, and signers to refer the ordinance to a vote of the electorate of the city, and such referendum was ordered. Such was the situation at the time plaintiff brought this action and the writ issued. The filing of such petition for a referendum automatically stays the ordinance or any action under it. The ordinance does not take effect until approved by vote of the people, and for five days after the result of such vote has been proclaimed. If the ordinance is rejected by the electorate at the referendum, there is no ordinance *Page 188 at all. It is the same as though the city commission had never passed, enacted, or ordained the ordinance. R.S. Utah 1933, 25-10-4, 25-10-5, 25-10-21, 25-10-23; Constitution of Utah, art. 6, § 1. There being no ordinance, no action could be taken or threatened under it, and the city could not be enjoined or prohibited from acting or taking any proceeding under it. One cannot be prohibited from acting or proceeding under that which is not. The only effect of the writ, therefore, was to prohibit the city from holding a referendum election, that is, to prohibit a legislative body (the people) from considering and acting upon a proposition, legislative in its nature, upon the ground that if they did they might enact some legislation that would be subject to constitutional objections. No one would seriously contend that the arm of the judiciary should be extended to prevent the legislative department from voting on a proposition on the ground that they might vote wrongly or unwisely. We may stay the hand of the executive branch in attempting to carry out or enforce a legislative edict on the ground that it contravenes the provisions of the Constitution, but we cannot stay the legislative department from enacting or ordaining the edict. It is only when the act is put into operation or effect, when its force, limitations, or restrictions are applied or attempted to be applied against the individual or the group, that the official hand may be stayed by judicial intervention. Had the referendum been held, the result might have been adverse to the ordinance and this lawsuit would never have been brought. And, since the writ must be recalled and the ordinance yet clear the hurdle of a referendum election, it may still develop that the points involved will become moot.
However, the defendants have joined with plaintiff and the intervener in asking us, now that the cause is here, to examine and pass upon the points raised in the petition and answer. The questions being of somewhat momentous and public concern as well as vital to the future conduct of the parties, we shall dispose of the issue presented. *Page 189
I concur generally in what has been said by Mr. Justice HANSON relative to the special fund doctrine. It is too firmly established in this state now to be upset by judicial decree. Its wisdom is for the legislature, which determines questions of policy. Its constitutionality has been repeatedly upheld by this court.
As to the interpretation of the so-called Granger Act, chapter 22, Laws of Utah 1933, Second Special Session, I must again disagree with my associates. My views on the interpretation and effect of the Granger Act are stated in my opinion in Utah Power Light Co. v. Provo City, 94 Utah 203, 74 P.2d 1191, and need not be repeated in detail here. I there held that the Granger Act was a limitation upon the city officials, the "governing body of the city," for the protection of the city and its inhabitants against any rash or ill-considered undertaking, by a public corporation, of public utilities by issuing revenue bonds without the consideration and approval of the people in accordance with our democratic principles, history, and governmental concepts. In the Provo City Case I took the position that the ordinances there involved, being enacted or ordained by vote of the people under the initiative provisions of the Constitution and the statutes, were not invalid for failure to comply with the Granger Act, and as to such ordinances, the people having spoken thereon, the Granger Act had no application. In the instant case the ordinance and contract were not initiated ordinances, but were passed and ordained by the city commission acting as the "governing body of the city." It is frankly admitted that the city commission, the "governing body of the city," did not comply with the provisions of the Granger Act. Under such circumstances had the matter of the enactment of the ordinance stopped there, and this suit then been brought, plaintiff must have prevailed under the decision inUtah Power Light Co. v. Provo City, supra, rendered since this action was commenced. But such is not the case. Before this action was instituted a proper and valid petition for a referendum was filed and accepted by the *Page 190 city commission and a referendum ordered. Such proceeding suspended the operation of the ordinance. It prevented its taking effect, and it cannot now take effect or have any validity until such referendum vote has been taken and a majority of the voters at the election shall have voted for the ordinance. If the ordinance shall not carry at the referendum, that is the end of the matter — there is no ordinance. The whole effort is abortive and died aborning. If, however, a majority vote for the ordinance, it then becomes effective five days after the result of the vote is officially announced; and receives its life, its vitality, its effectiveness, not from the act of the city commission, but from the vote of the people, the arbiters, the final tribunal of policy, the source from whence all political power comes. Sections 25-10-4; 25-10-5; 25-10-21; 25-10-23, R.S. Utah 1933. Such being the case, it becomes an ordinance, approved by the vote of the people and effective in the same manner as an initiated ordinance and not within the provisions or limitations of the Granger Act.
I see no escape from such conclusion if we bear in mind the experiences out of which our government grew and the elemental principles upon which it is founded. This state, as well as the nation, was founded by a people rich in political experience, devoted to the ideal that all political power is inherent in the people, and with a strong and dominating faith in local self-government. The idea of a totalitarian state was never born or conceived in the minds of the pioneers who carved this empire out of desolation, nor of the sturdy men who framed the Constitution of the state. They declared in no uncertain terms that "all political power is inherent in the people," article 1, § 2, that "governments derive their powers from the consent of the governed," and that a frequent recurrence to these fundamental principles is essential to the perpetuity of free government. These declarations are not mere metaphors, sounding brass and tinkling cymbals pleasing to the ear, but a vital principal adhered to in the formation of the government of this state. The *Page 191 founders of the state never conceived of setting up a super-creature, the state, which should devour its parents, the people, and be the ultimate to which the people were mere puppets. The people set up the state as their agent or servant through which they might for convenience express their sovereign will. They created the state; the state did not create the people. The people are the master and the state, the servant, founded upon the elemental principles by which their civilization had grown, and from which their political philosophy had evolved. To secure the political rights they had and preserve for their posterity the political ideals which had meant so much in their development, and to preserve which they had suffered, they framed the Constitution and set up for their convenience, and as their servant, a government, the state. The people are sovereign; the state is merely their instrument through which they exercise part of their sovereign will. Confusion results if we fail to distinguish between sovereignty itself and that force which stands as the representative of the sovereign power. The principle of local self-government is fundamental in American political institutions. It has been the seat of modern civilization, the nursery of public spirit, the center of constitutional liberty, and the fountain of patriotism. The right of self-government should be carefully guarded and every infraction or evasion thereof condemned.
While the sanctity of life should be given to every act of the legislative body which is not in contravention of superior statutes or of the Constitution, with clearer reason and with greater force should life be given to the act of the sovereign itself, the source of all governmental power, the vote of the people.
The intervener has argued at length that the ordinance and agreement with the contractor are void. As stated by Mr. Justice HANSON and as indicated by the writer in the Provo City Case, supra, the intervener is in no position to raise those questions, being neither a resident nor taxpayer of Ogden City, nor a person whose interests are adversely *Page 192 affected by the provisions of the ordinance or the agreement. It may be added, however, that the question of rates to be charged and to be paid by the city for light and power services must, under the express provisions of the ordinance, be reasonable charges for the services rendered. We held in the Provo City Case that any attempt to charge the city, or bind the city to pay more for its power and light services than the reasonable and just value thereof, would be an effort to pay the revenue bonds from general or tax revenues of the city and void. While this ordinance is more definite than was the Provo City ordinance, the statement there made applies with equal force here. The other objections urged to the contract and ordinance were also urged in the Provo City Case and discussed at some length by the writer. In addition to the reasons stated by Mr. Justice HANSON in his opinion in this cause, the reasons stated in the Provo City Case apply to the objections, and they are accordingly held without merit.
After commencement of this action, defendant city commission amended the ordinance and agreement by consent of the contractor. It was stipulated that writs of prohibition and certiorari theretofore issued should apply to the amended ordinance and the record thereof is before us. A proper petition for a referendum on the amended ordinance was presented, accepted by the city, and a referendum to the voters ordered. I agree fully with Mr. Justice HANSON that no contempt was committed thereby, and under the holding of this court in Keigley v. Bench, 90 Utah 569,63 P.2d 262, any question except as to the amended ordinance, which must now go to referendum, is probably moot.
It follows that the order made by Mr. Justice HANSON recalling the writs, dismissing the action, and awarding contesting defendants their costs is proper. Let the order issue and judgment be entered accordingly.