and the maintenance of the adverse party and children, and award alimony and costs, as shall be equitable and just.

We find no reversible error in the record. The decree and order of the district court is affirmed, with costs.

BASKIN and BARTCH, JJ., concur.

(24 Utah, 321)

YOUNG et al. v. SALT LAKE CITY. (Supreme Court of Utah. March 1, 1902.)

MUNICIPAL CORPORATIONS-TERRITORY-DISCONNECTION-DELEGATION OF LEGISLATIVE POWER STATUTES - DOUBTFUL CONSTITUTIONALITY-DETERMINATION.

1. Rev. St. c. 15, tit. 10, § 288 et seq.,.-the only general law for changing the boundaries of the several incorporated cities existing when the constitution was framed,-authorizes the district court to proceed to disconnect land bordering on any city, on petition of a majority of the owners thereof, stating reasons therefor, and accompanied by a map or plat of the property. On filing of such petition a summons to the city is required. Issue is then joined as in other cases, and if the court finds the petition is true, and that justice and equity require the disconnection, it is to appoint commissioners to adjust the terms as to the liabilities of the city which accrued during the connection, and as to the mutual property rights of the city and territory. After the hearing and report of the commissioners, the court is to decree in accordance therewith and with the petition, or modify or reject the report and appoint new commissioners, and continue the cause for further action. Held not

violative of Const. art. 5, § 1, and Id. art. 6, §§ 1, 29, as delegating power to the court and commissioners to legislate, but valid, as merely requiring the court to judicially determine whether facts found by it entitle the petitioners to relief, especially as Const. art. 11, § 5, and Id. art. 6. § 26, subd. 12, restrict the power of special legislation, particularly as to cities.

2. A reasonable doubt as to the constitutionality of a statute will be resolved in favor of its validity.1

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Petition by Le Grand Young and others against Salt Lake City, a municipal corporation. From a judgment for petitioners, the city appeals. Affirmed.

C. B. Stewart, for appellant. Benner X. Smith, for respondents.

MINER, C. J. The respondents in this case filed their petition in conformity with chapter 15, tit. 10, § 288, Rev. St., praying that certain land described therein be detached and disconnected from Salt Lake City. It is alleged, among other things, that the land in question is not platted for any municipal purpose, and is not situated so as to render it desirable to be platted to be used for residence or business purposes, and that the same was no part of the town-site entry of Salt Lake City; that it is situated five miles from the business portion of the city, and two miles from the platted and inhabit

1 State v. Tingey, 67 Pac. 33, 24 Utah,

ed part of the same; that lying between said land and the city is the Ft. Douglas military reservation, and that the only way to reach said land is over said reservation; that most of said property is situated north of Emigration Cañon, along the foothills and mountain side, and is mountainous, broken, and unfit for municipal or residence purposes; that a range of foothills lies between it and the reservation; that the land never has received or can receive any fire or police protection, or other municipal benefit of any kind; that the city has contracted a bonded indebtedness of about $2,750,000 for permanent improvements in said city, none of which are situated near this property; that the assessed valuation of said property in 1900 was $14,755; that prior to 1896, and the adoption of the constitution, the owners of the property were not required to pay taxes thereon, but the same were remitted, because the said property did not receive any municipal benefits. To this petition a demurrer was interposed by the defendant, which was overruled. After a hearing the court found the facts in accordance with those stated in the petition, and ordered the land to be severed from the city, and discharged from its jurisdiction and control, without any obligation to the city for taxes or bonded indebtedness thereof. From this order the defendant appeals.

Section 288, Rev. St. 1898, provides as follows: "Whenever a majority of the real property owners of any territory within and lying upon the borders of any city, shall file with the clerk of the district court of the county in which such territory lies, a petition praying that such territory be disconnected therefrom, and such petition sets forth reasons why such territory should be so disconnected from such city, and is accompanied with a map or plat of the territory sought to be disconnected, and designates no more than five persons who are empowered to act for said petitioners in such proceedings, such court shall cause a notice of the filing of the same to be served upon said city, in the same manner as a summons in a civil action, and shall also cause notice to be published in some newspaper having a general circulation in such city, for a period of ten days. Issue shall be joined and the cause tried as provided for the trial of civil causes, as nearly as may be. The proper authorities of such city or any person interested in the subject matter of said petition, may appear and contest the granting of the same." Section 289 provides: "If the court finds that the petition was signed by a majority of the real property owners of the territory concerned, and that the allegations of the petition are true, and that justice and equity require that such territory or any part thereof should be disconnected from such city, it shall appoint three disinterested persons as commissioners to adjust the terms upon which such part shall be so severed as

to any liabilities of such city that have accrued during the connection of such part with the corporation, and as to the mutual property rights of the city and the territory to be detached." Section 290 provides: "The commissioners shall, at a time by them fixed, hear the agents named in the petition, and also the proper authorities of the city in regard to the subject matter so submitted, and, as soon as practicable, report their findings in the premises to the court. Upon the filing of which report, the court shall decree in accordance therewith, and with the prayer of the petition, unless for good cause shown the court shall modify the same, or shall reject or set aside the report and appoint new commissioners, and continue the cause for further action to be had thereon." Section 1, art. 5, of the constitution, divides the power of the government into legislative, executive and judicial departments, and provides that no one department can exercise functions appertaining to either of the other, except in cases expressly provided. Section 1, art. 6, provides: "The legislative power of this state shall be vested in a senate and house of representatives, which shall be designated the legislature of the state of Utah." Section 29, art. 6, reads as follows: "The legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise, or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, to levy taxes, to select a capitol site, or to perform any municipal functions." Section 5. art. 11, reads as follows: "Corporations for municipal purposes shall not be created by special laws; the legislature by general laws, shall provide for the incorporation, organization and classification of cities and towns in proportion to population; which laws may be altered, amended, or repealed." Section 26, art. 6, subd. 12.

The appellant contends that the statute under which this proceeding was taken is unconstitutional and void, and that it attempts to delegate power to the district court and commissioners to legislate, and that the power given is a legislative power, and that the court cannot be invested with it by the legislature, under the constitution. It is true that, under the constitution, powers belonging to one department of government cannot be exercised by others. Courts cannot legislate or make laws. This power is vested in the legislature, and any law which confers such power upon a court or executive officer is unconstitutional and void. The question presented here is, do the general laws of this state giving the district court power to disconnect certain portions of an incorporated city from its jurisdiction and limits confer upon the court legislative power to make laws? It will be conceded that, while the legislature cannot delegate power to make laws, it may still make laws to take effect

upon the ascertainment of certain facts and conditions, and may delegate the duty to determine the existence of such facts to some other branch of the government. Field v. Clark, 143 U. S. 693, 12 Sup. Ct. 495, 36 L. Ed. 294; Dowling v. Insurance Co., 97 Wis. 50, 72 N. W. 229. This duty of determining the facts and conditions as they exist may also be conferred upon the courts. Under the provisions of the statute, whenever a petition is filed with the court, stating the requisite facts, and summons is issued and served upon the city, issue is then joined as in other cases. If the court finds the allegations in the petition are true, and that justice and equity require that the territory named should be disconnected from the city, it is required to appoint three commissioners, who are disinterested persons, to adjust the terms upon which a severance shall be made, as to the liabilities that have accrued, etc. The commissioners appointed are required to report their findings to the court. Thereupon the court may decree in accordance with such report, or, if good cause appears, it may modify such report, or wholly set it aside. and appoint new commissioners, and continue the case for further hearing. In the present case the court has followed the statute. The facts required to be shown, under the statute, must be passed upon by the court. A majority of the owners of land must petition. The land must lie upon the borders of the city, and the reasons for such severance must be stated. A map or plat of the property must accompany the petition. These are issuable facts. The statute provides that issue may be joined thereon and the cause tried as is provided for the trial of civil cases. as near as may be. The determination of these issues and the facts and findings of the commissioners is a judicial act, and does not pertain either to the legislative or executive department of the state. The act in question is a general act applying to all the cities in the state. It provides that certain territory, under certain conditions, may be severed from an incorporated city, if the court considers the facts justify such severance. The right to disconnect the territory depends entirely upon the facts and the existence of the conditions covered by the statute, and the determination of the question involves an examination and weight of the testimony. which is certainly in the nature of a judicial determination. The court gives the law effect after it has determined judicially the existence of the requisites as fixed by the legislature. The court is simply to determine the issuable facts. It is a judicial act to determine what the facts in a given case are, and whether such facts, when found, entitle the party to the relief sought. The statute names the conditions under which land lying on the borders of a city may be detached, and authorizes the court to determine whether such conditions exist, and

whether, under all the facts, justice and equity require the land to be detached. The court is required to determine these questions. They are therefore of such a judicial character as to come within the jurisdiction of the district court. Evans v. City of Council Bluffs, 65 Iowa, 238, 21 N. W. 584; City of Burlington v. Leebrick, 43 Iowa, 252; Ford v. Town of North Des Moines, 80 Iowa, 626, 45 N. W. 1031; McKean v. City of Mt. Vernon, 51 Iowa, 306, 1 N. W. 617; City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616; Huling v. City of Topeka, 44 Kan. 577, 24 Pac. 1110; Hurla v. City of Kansas City, 46 Kan. 738, 27 Pac. 143; State v. Weatherby, 45 Mo. 17; Lammert v. Lidwell, 62 Mo. 188, 21 Am. Rep. 411; Wahoo v. Dickinson, 23 Neb. 427, 36 N. W. 813; Forsythe v. City of Hammond (C. C.) 68 Fed. 774; Grusenmeyer v. City of Logansport, 76 Ind. 549; People v. Fleming (Colo. Sup.) 16 Pac. 298; Field v. Clark, 143 U. S. 693, 12 Sup. Ct. 495, 36 L. Ed. 294. An additional reason for the holding is found in section 26, art. 6. subd. 12, Const., which provides: "The legislature is prohibited from enacting any private or special laws in the following cases: * (12) Incorpo

*

rating cities, towns or villages; changing or amending the charter of any city, town or village; laying out, opening, vacating or altering town plats, highways, streets, wards, alleys or public grounds. In all cases where a general law can be applicable, no special law shall be enacted." And in section 5, art. 11, which reads as follows: "Corporations for municipal purposes shall not be created by special laws; the legislature, by general laws, shall provide for the incorporation, organization, and classification of cities and towns in proportion to population; which laws may be altered, amended or repealed." The legislature is prohibited from enacting any special law when a general law can be applicable; and, by article 11, municipal corporations shall not be created by special laws, but general laws may be enacted, which may be altered, amended, or repealed. The statute in question is a general law, applying to all the cities in the state, without which the boundaries of the several incorporated cities in the state existing when the constitution was framed might not be changed, but must remain indefinitely as existing at that time. This could not have been the intention of the framers of that instrument, nor would such a rule be in accordance with the spirit and terms of its provisions. See Eureka City v. Wilson, 15 Utah, 53, 48 Pac. 41. The statute under consideration was adopted from Iowa. The supreme court of that state, under similar provisions of the constitution, has held the act constitutional. This determination should, at least in doubtful cases, be considered as favorable to the constitutionality of the stat ute. People v. Ritchie, 12 Utah, 181, 42 Pac. 209.

It is not without doubt and difficulty that we have arrived at the above conclusion. Many authorities from a high source hold a contrary doctrine,-notably, the case of City of Galesburg v. Hawkinson, 75 Ill. 158; People v. Bennett, 29 Mich. 451, 18 Am. Rep. 107; Territory v. Stewart, 1 Wash. St. 98, 23 Pac. 405, 8 L. R. A. 106; People v. Town of Nevada, 6 Cal. 143; Alcorn v. Hamer, 38 Miss. 652; Board of Harbor Com'rs of Port of Eureka v. Excelsior Redwood Co., 88 Cal. 491, 26 Pac. 375, 22 Am. St. Rep. 321. Considering the conflicting authorities upon this subject, and the high standing of the courts holding a contrary view, we cannot say that we have no reasonable doubt as to the constitutionality of the law, independent of the fact that we may have adopted the construction of the court of Iowa when we adopted the statute from that state. When such a doubt exists, the statute will be upheld. Cooper v. Telfair, 4 U. S. 14, 1 L. Ed. 721; Sharpless v. Mayor, etc., 21 Pa. 147, 59 Am. Dec. 759; Adams v. Howe, 14 Mass. 340, 7 Am. Dec. 216; State v. Tingey, 24 Utah, 67 Pac. 33; Supervisors v. Brown, 112 U. S. 268, 5 Sup. Ct. 125, 28 L. Ed. 704. The judgment of the district court is affirmed, with costs.

BASKIN and BARTCH, JJ., concur.

(24 Utah, 377)

SCOTT v. CROUCH et al. (Supreme Court of Utah. March 8, 1902.) EQUITY-ENFORCEMENT OF TRUST-LOST AND UNRECORDED DEED-EVIDENCE-BURDEN

OF PROOF-LACHES-FORMER OWNER

OF PROPERTY-DECLARATIONS AGAINST INTER

EST.

1. In a suit by the administrator of a deceased locator of a mining claim to declare that the patentee thereof is a trustee for the estate of the deceased, on the ground of fraud in procuring the patent, by presenting false affidavits averring that the original locator had conveyed his interest therein, evidence considered, and held to authorize a finding that such locator had conveyed his interest in the claim, and that therefore there was no fraud on the patentee's part in procuring the patent.

2. A person alleging that a party holding the legal title to property is a trustee thereof has the burden of proving the trust.

3. Though a mining claim can only be conveyed by a deed in writing duly executed and delivered, the due execution and delivery of such a deed, which was not recorded, and which is lost, may be proven by parol testimony.

4. A party claiming title through a grantee in a lost and unrecorded deed will not be required, after the parties to the transaction are dead, or cannot be found, and after the lapse of several years without the grantor, or any one for or through him, claiming any interest in the property, to furnish the high de gree of proof of the due execution and delivery of the lost deed that is generally required.

5. Where, in a suit by the administrator of a deceased locator of a mining claim to declare the patentee thereof a trustee for the estate of the deceased, on the ground that an alleged lost and unrecorded deed, conveying the locator's interest in the mine, was not execut

ed, it appeared that the locator for over 15 years made no claim as owner thereof, and had knowledge of the claims of other persons who during such time worked the mine, the right of recovery was barred by the locator's laches.1

6. The declaration of the locator of a mining claim that he had conveyed the property by deed, and had been paid therefor, is an ad mission against his interest, and admissible after his death.

Appeal from district court, Salt Lake county; W. C. Hall, Judge.

Suit by John S. Scott, as administrator of the estate of J. N. McCann, deceased, against James Crouch and others. From a decree in favor of defendants, plaintiff appeals. Affirmed.

Frick & Edwards, for appellant. Brown & Henderson, for respondents.

MINER, C. J. The appellant, Scott, as administrator of the estate of J. N. McCann, deceased, filed his complaint against the defendants, and bases his claim for recovery upon the ground that the appellant's intestate during his lifetime was the owner of a one-tenth interest in the Zelnora mining claim, and that McCann died in 1886 seised of said interest therein, by virtue of having been one of the original locators thereof, and that he never parted with such interest. Respondents assert title to one-tenth interest therein, based upon the claim that McCann in 1879 conveyed by deed his interest in said mining claim to one S. R. Dickson, and that they succeeded to said interest from Frank H. Dyer, through a United States marshal's deed to said Dyer, and by a quitclaim deed from him to Zelnora Hopper, and by her to the other respondents, James Crouch and Florinda Crouch. The record shows no deed of record from McCann to S. R. Dickson, except that in 1891 Zelnora Hopper applied for a patent to the Zelnora mining claim, and a patent was duly issued to her on June 23, 1892, by the United States government. The plaintiff alleges in his complaint that at the time of the application for said patent the affidavits of Frank H. Dyer and Thomas Pells were presented to the receiver, in part as the basis therefor, wherein the appellant claims that Dyer falsely testified that said McCann in 1879 sold and conveyed his onetenth interest in said claim to S. R. Dickson, and that he (Dyer) thereafter became the owner thereof by virtue of a marshal's deed under an order of sale duly made upon a judgment rendered in a proceeding wherein Dickson and others were defendants, and that Pells falsely testified that the statements contained in Dyer's affidavit were true; that the affidavits were falsely and fraudulently presented by said Zelnora Hopper to show that she was the owner of said Zelnora mining claim; and further alleges that she holds said title as trustee for plaintiff's estate, and not otherwise. After hearing the

1 Wood v. Fox, 32 Pac. 48, 8 Utah, 397.

testimony, the court, among other things, found that McCann was one of the owners of said mining claim, and owned a one-tenth interest up to 1879, when he executed and delivered a deed of all his interest to S. R. Dickson, who, with others, then entered into possession and worked the same, since which time McCann has had no interest therein; that in 1879 Thomas Pells, one of the locators of said claim, sold and conveyed to Dickson all his interest in said claim, and delivered a deed thereof; that Dickson failed to record said deed; that thereafter Dickson and others entered into possession of said claim, and performed the assessment work thereon until the claim was patented; that on the 7th day of February, 1881, Frank H. Dyer succeeded to all the interest of Dickson in said claim formerly owned by McCann, and other interests amounting to eight-tenths interest therein, through a deed executed by the United States marshal on a valid judgment, decree, and sale in a suit wherein Dyer was plaintiff and S. R. Dickson, J. B. Ritchley, Zelnora Hopper, James Crouch, and P. K. Sheffield, were defendants, and that Dyer at once took possession thereof; that in August, 1897, Dyer and wife duly conveyed said claim to Zelnora Hopper; that in 1880 James Crouch and James B. Ritchley, the owners of two-tenths of said mining claim, duly conveyed said interest to Zelnora Hopper, and that by said conveyance said Zelnora Hopper became the legal and equitable owner of all of said claim; that in 1891 said Zelnora Hopper made application to the proper authorities of the United States for a patent to said mining claim, and, as part of the abstract record, she procured and filed the affidavits of Frank Dyer and Thomas Pells, testifying that in the year 1879 the said J. N. McCann and Thomas Pells had each, to their knowledge, sold to the said S. R. Dickson their, and each of their, interests in said claim, and executed and delivered to said Dickson a deed of conveyance thereof; that all the development work thereon was done as required by law; that on the 23d day of June, 1892, a patent was granted to Zelnora Hopper to all of said claim; that said affidavits were true, and were obtained without fraud; that from 1879 up to McCann's death, in 1886, he made no claim to any part of said claim, although he well knew that Dickson was in possession thereof with other owners, and was developing and performing assessment work thereon; that in 1892 Zelnora Hopper duly conveyed to James Crouch an undivided one-half interest in said claim, and in February, 1894, duly conveyed to Florinda Crouch the remaining undivided one-half of said claim, who are now the legal and equitable owners of the same; and that plaintiff has no rights therein. A decree was entered accordingly. The plaintiff appeals, and claims that the evidence does not establish the fact and conclusion that McCann ever conveyed, or delivered a deed to Dickson of,

his one-tenth interest in said claim. It is conceded that, if such deed was made, then the decree should be affirmed; if not, it should be reversed.

The evident theory of the appellant is that the legal title was all vested in the defendants, and that it was obtained by fraud, through the act of Hopper in fraudulently obtaining the affidavits of Dyer and Pells used on the proceeding to obtain a patent from the United States. The affidavit of Dyer, used before the commissioner of the land office, and shown in evidence by the plaintiff, so far as material, reads as follows: "It is personally known by me that in the year 1879 J. N. McCann and Thomas Pells, who were two of the original locators of said Zelnora lode, conveyed by deed their undivided two-tenths interest, which they then owned in said lode, to the said S. R. Dickson, and said interest was then vested in him at the time of said judgment and decree, as shown by the findings and report of J. L. Rawlins, the commissioner appointed by the court to take evidence in said case, as well as by the judgment itself, a certified copy of which, with the order of sale, is filed herewith; that the said S. R. Dickson has evidently simply neglected to cause his said deed to be recorded; that he is believed now to be dead, or, if alive, he cannot be found, his whereabouts being unknown since the year 1880; that, in further support of my statement as to said deed to Mr. Dickson, I have to state that I acted for him in making the purchase of said interest of two-tenths in said lode." The affidavit of Thomas Pells, used on said hearing, is as follows: "Also personally appeared Thomas Pells, of Bingham, Salt Lake county, Utah, who, being duly sworn, deposes and says that he has heard read the foregoing atfidavit of Frank H. Dyer, and personally knows that the statements made therein as to the conveyance of said twotenths interest of himself and J. N. McCann by deed to said S. R. Dickson are true, and, upon his best information and belief, all the other statements therein contained are also true, and that he has no interest now in said Zelnora lode." Mr. Pells, the last-named affiant, was present in court and gave his testimony at the hearing of this case. testified, in substance, that he knew the claim in question, and the parties; that in 1879 he sold and conveyed his interest in the claim to Dickson, and executed and delivered to him a deed of the same; that at this time he knew McCann, and had talked with him about his interest in the Zelnora claim. He says: "He [McCann] told me that he had sold his interest to Mr. Dickson, through Mr. Dyer, and had made a deed. I think it was just after I had sold. He told me he got $50 for it. I got $50 for mine. After the sale, or about the time I sold that spring. I saw Mr. Dickson and Mr. Dyer at different times on that property. They were

He

prospecting and opening up the mine; that is, running a tunnel, particularly. They were doing assessment work; had a tent up there on the property, and were living there. Mr. Dyer was stoping out ore and running a tunnel. He was working for Mr. Dickson. He had charge of the work for him and the other owners. After that I remember of hearing about a suit being commenced by Dyer to establish a lien on that property for the work. I heard of it afterwards, about the time it was brought; and Mr. McCann was living there in the community at that time. I was acquainted with the property, and saw it occasionally after that for some years. I know something about Mr. McCann working the property called the 'Rob Roy.' They are pretty well connected together. Their end lines come about together. I don't think they quite adjoin." Mr. Taylor testified, in substance, that in 1885 he visited McCann before his death, while on the Rob Roy claim, which was situated near the Zelnora, for the purpose of incorporating some claims; that he could then see the Zelnora claim, and asked McCann who owned it; that MeCann replied that it was the Hopper claim, and that it belonged to Hopper and Dyer; that McCann did not claim any interest in the Zelnora claim; that he pointed out the lines between the Zelnora claim and his claim. It also appears that. after the time Dickson purchased the Zelnora claim from McCann, he went to work upon it, and did development work thereon, and that MeCann and Pells subsequent to this time did no work upon it, but did work upon other claims in that vicinity for several years thereafter, and ran a tunnel 500 or 600 feet in connection with E. Rauch, a co-owner in other claims near the Zelnora. During all this period before McCann's death he made no claim to any interest in the Zelnora: neither did Mr. Rauch, who, after McCann's death, was appointed his administrator. The other parties owning the claim performed the assessment work upon it for several years, and no showing is made that McCann and Pells contributed anything towards such expense, or raised any objection to such occupancy or working by Dickson. These facts certainly raise the inference that the affidavits of Dickson and Pells are true.

So far as appears, the allegations of fraud upon which the complaint is predicated, and which should be shown by the plaintiff. have not been established by the testimony in the record. As stated, the legal title to the claim stood in the defendants. Under such circumstances, the burden was upon the plaintiff to show that they were not entitled to retain it, but held it in trust for the plaintiff. While it is true that a conveyance of a mining claim or other real estate cannot be made, except by deed in writing executed and delivered, yet, when the deed