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3. TRIAL 296(7)-INSTRUCTIONS-CURE OF | risk of collision, then the plaintiffs must abide ERRORS BY OTHER INSTRUCTIONS.

the risk he took, and your verdict will be for The error in such instruction was not cured the defendant.” by other instructions, correctly stating the rule

Counsel contend, stating the contention in respecting the burden of proof, where the evidence was conflicting, and such that more than their own language, that: one conclusion was permissible, and the record "The instruction is erroneous, and places a left it in doubt whether the jury followed the greater burden upon the deceased than the law proper instruction or the improper one.

imposes on him. All that the deceased was com

pelled to do was to exercise ordinary care to Appeal from District Court, Salt Lake avoid injury to himself, and if, in the exercise County; W. H. Bramel, Judge.

of ordinary care, there were open to him several Action by Marie 'Sorenson and others courses of action, he was entitled to follow any against John W. Bell. From a judgment for the rule that if he might have avoided the acci

one of those courses. The instruction lays down defendant, plaintiffs appeal. Reversed and dent by a particular act of ordinary care, plainremanded.

tiffs were not entitled to recover, although the

deceased might have exercised ordinary care in Weber, Olson & Lewis, of Salt Lake City, the course which he followed. The instruction for appellants. W. E. Rydalch and Geo. G. does not require that the deceased should have Armstrong, both of Salt Lake City, for re- been guilty of contributory negligence in order

to defeat plaintiffs' right to recover, but in effect spondent.

tells the jury that, even though the deceased was

himself free from contributory negligence, yet FRICK. C. J. Marie Sorenson, as the sur- if he might have avoided the accident by stopviving widow, and the other plaintiffs as the ping, and allowing the car to go by, plaintiffs surviving children of one Hans Sorenson, de- not have been guilty of any negligence whatever ceased, brought this action against the deby failing to stop and so permitting the autofendant to recover damages caused by the mobile to have the right of way. The law is death of said Hans Sorenson. It is alleged deceased.might have avoided the accident by the

not that the plaintiffs cannot recover if the in substance in the complaint that the de- exercise of some particular act, but the law fendant, on the 23d day of July, 1916, negli- requires that in order to defeat the action on the gently and carelessly, and in violation of an ground of contributory negligence, the deceased ordinance of Salt Lake City, drove his auto tributed to his death.”

must be guilty of some negligent act that conmobile against and over the body of said Sor

[2, 3] It must be conceded that the lanenson, thereby inflicting injuries upon him from which he subsequently, on the 31st day guage in the foregoing instruction is suscepof July, 1916, died. Plaintiffs allege damages sel. If the foregoing were the only error com

tible of the meaning placed upon it by counand pray for judgment. Defendant in his an- plained of, however, we should not, in view swer denies the alleged acts of negligence, of the whole charge, in which the court more and sets up the defenses of assumed risk clearly and correctly stated the rights and and contributory negligence on the part of the duties of the deceased, feel inclined to redeceased. A trial to a jury resulted in a verdict in favor of the defendant, on which further assignment relating to the court's in

verse the judgment. There is, however, a judgment was duly entered, and the plaintiffs structions which is more serious. The court appeal.

also instructed the jury as follows: [1] In view of the errors that are assigned

"Unless you find from a preponderance of the and insisted upon, it is only necessary to evidence that the alleged negligence of the destate that the evidence presented to the jury fendant actually existed and was the sole proxitended to show negligence on the part of the mate cause of the injury to the deceased, and

that the deceased, Hans Sorenson, was free defendant, and that such negligence was the from any negligence or want of reasonable care proximate cause of Sorenson's death. There proximately contributing to the injury, the was also evidence supporting a contrary con- plaintiff is not entitled to recover, and your ver

dict should be for the defendant." clusion. There was also evidence tending to prove that the deceased was guilty of neg.

That instruction was also excepted to. It ligence which was the proximate cause of, or will be observed that in the foregoing instrucwhich proximately contributed to, his death. tion the court charged the jury that in order The state of the evidence was therefore such to find for the plaintiff the jury must find that required the submission of the case to from a preponderance of the evidence that the jury in order to find the facts. The dis- the defendant was negligent as alleged in the trict court did submit the case to the jury, complaint, and that such negligence was the and in doing so, appellants contend, erred proximate cause of injury complained of. If in its charge to the jury. One of the instruc- the court had stopped there the instruction tions that is complained of here, and which would have stated the law correctly. The was excepted to in the district court by ap- court, however, also added to the foregoing, pellants, reads as follows:

"And that the deceased, Hans Sorenson, was "You are instructed that if you believe from free from any negligence or want of reasonthe evidence that the deceased, after he knew able care proximately contributing to the inthe automobile of defendant was approaching, jury.” As an abstract proposition of law the could and should, in the exercise of ordinary statement just quoted may also be conceded care, have stopped and permitted the automobile to pass in safety, but chose to go on and run the to be correct. The court, however, in view of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

all the language contained in the instruction, determined that surrounding children of tender and in view of the manner of statement, in ef- years with care and nurture of their natural fect charged the jury that, “unless it ap- the partial support of mothers who are depend.

protectors, by appropriating public funds for pear from a preponderance of the evidence ent upon their own efforts for the support of

that the deceased was free from any their children, is within the public policy of the negligence or want of reasonable care," the state, the Supreme Court would not be justified

in declaring the act invalid or that the funds plaintiffs could not recover. While it is true used for the purposes of the act are not used that respondent's counsel insist that the court | for a “public purpose.” merely intended that the jury must find de [Ed. Note.-For other definitions, see Words fendant's negligence, and that such negli- and Phrases, First and Second Series, Public

Purpose.) gence was the proximate cause of the inju

MOTHERS' ry “from a preponderance of the evidence," 2. CONSTITUTIONAL LAW Cw48

PENSIONS-STATUTE-RESOLVING DOUBTS IN yet the only fair, natural, obvious and ordi

FAVOR OF VALIDITY. nary meaning of the language contained in The constitutionality of Laws 1913, c. 90, the foregoing instruction is that the jury known as the Dependent Mothers' Act, being were required to find from a preponderance doubtful; doubts will be resolved in favor of its

constitutionality.1 of the evidence that the deceased was free

3. COUNTIES 190(2)_TAXATION-AMOUNTfrom negligence, etc.; and, unless they so LIMITATIONS-DEPENDENT MOTHERS' ACT. found, plaintiffs could not recover. So con Laws 1913, c. 90, authorizing the county strued, no one either can or does defend the commissioners to provide funds in an amount instruction. True, counsel point to other por- partial support of mothers dependent on their

sufficient but not in excess of $10,000 for the tions of the charge wherein, they contend, own efforts for the maintenance of their chil. the rule respecting the burden of proof is dren, must be construed as authorizing the levy correctly stated. If that be conceded, it of an additional tax on the property in the counstill does not minimize, much less cure, the taxes in excess of the maximum allowed by

ty, although such levy would increase the total palpable error contained in the foregoing in-Comp. Laws 1907, 2593, providing that taxes struction. At most it would merely present levied shall not exceed five mills on the dollar a case where two instructions were given up the dollar additional for care, maintenance, and

for general county purposes, one-half mill on on the same subject, one proper and the oth- relief of the indigent sick and otherwise depender improper. Where such is the case, and the ent poor, and four mills on the dollar for disevidence is conflicting upon the subject cov

trict school purposes. ered by the instructions, or is such that

Appeal from District Court, Grand County; more than one conclusion is permissible, and A. H. Christensen, Judge. the record leaves it in doubt whether the ju

Action by the Denver & Rio Grande Railry followed the instruction that is proper or road Company against Grand county. Judgthe one that is improper, then but one result ment for plaintiff, and the county appeals. is legally permissible in this court, and that

Reversed and remanded. is to reverse the judgment and grant a new trial to the aggrieved party. The district

Knox Patterson, of Moab, for appellant. court no doubt had in mind correct principles Van Cott, Allison & Riter, of Salt Lake City, of law when it framed the instruction, but in for respondent. stating those principles it used language which cast a burden on plaintiffs which the

GIDEON, J. Respondent seeks to recover law does not require of them. The instruc- the sum of $912.66, claimed to have been untion is therefore clearly erroneous.

lawfully collected in the year 1914 by appelFor the reasons stated, the judgment is re- lant under an act of the Legislature of 1913, versed, and the cause is remanded to the dis- c. 90 (Laws Utah 1913), known as the “Detrict court of Salt Lake county, with direc- pendent Mothers' Act.tions to grant plaintiffs a new trial. Plain

The cause was heard by the court upon an tiffs to recover costs.

agreed statement of facts. From such state

ment it appears that the railroad company is McCARTY, THURMAN, CORFMAN, and a corporation existing under the laws of the GIDEON, JJ., concur.

states of Utah and Colorado, and owns and operates a main line of railway extending

from Ogden, Utah, in a southeasterly direc151 Utah, 294)

tion through several counties of Utah, includDENVER & R. G. R. CO. V. GRAND COUNTY. (No. 3088.)

ing Grand county, and thence into Colorado;

that Grand county is a duly organized county (Supreme Court of Utah. Dec. 21, 1917.)

of the state of Utah, with authority to assess, 1. COUNTIES (192_TAXATION-DEPENDENT levy, and collect taxes in such manner and

MOTHERS' ACT—"ALL PURPOSES OF CORPO-
RATION"-"PUBLIC PURPCSES."

for such purposes as are or may be provided Under Const. art. 13, § 5, giving counties, by law. It is further stipulated that in the etc., the power to assess and collect taxes “for year 1913 appellant, through its proper offiall 'purposes of such corporation,” the quoted cers, assessed, for the purposes of taxation, phrase is synonymous with “public purposes," and the Legislature, by the enactment of Laws all lines of railway, rolling stock, and fran1913, c. 90 (Dependent Mothers' Act), having / chises connected with and appurtenant to

For other cases see same topic and KEY-NUMBER in all Key- Numbered Digests and Indexeg

the railroad of respondent located in said ja population of one hundred and twenty-five Grand county in the sum of $929,652, and thousand or more, the authority, power and duthat that amount was duly apportioned | under the provisions of this act shall devolve

ty of determining upon allowance to be made among the various taxing districts in the upon and be exercised by the juvenile judge of county in which the property and franchises the district in and for such counties. Such alof the respondent are located; that in said lowance shall be made only upon the following

conditions: (1) The child or children for whose year 1913 the appellant, through its proper benefit the allowance is made must be living officers, levied what is termed a dependent with the mother of such child or children. (2) mothers' tax upon all the property of re- The allowance shall be made only when in the

absence of such allowance a mother would be respondent situate in said county of one mill quired to work regularly away from her home on each dollar of assessed valuation, and and children, and when by means of such allowthat the same was entered upon the assess ance she will be able to remain at home with her ment rolls of said county, and that the de- children. (3) The mother must, in the judgment

of the county commissioners or juvenile court, pendent mothers' tax so levied amounted to be a proper person morally, physically and menthe sum of $912.66; that a demand was made tally, for the bringing up of her children. (4) upon respondent for the payment of the same. Such allowance shall, in the judgment of the It appears further in the stipulation that in county commissioners or juvenile court, be nec

essary to save the child or children from neglect. addition to the said dependent mothers' tax (5) No persons (person) shall receive the benefit the appellant, through its proper officers, lev- of this act who shall not have been a resident ied other taxes for said year against the of the county in which such application is made

for at least two years next before the making of property of respondent as follows: Five mills such application for such allowance. on the dollar for general county purposes, “Sec. 4. Whenever any child shall reach the four mills on the dollar for county school pur- age of fifteen years, any allowance made the poses, and one-half mill on the dollar for the mother of such child for the benefit of such

child shall cease. The county commissioners or care, maintenance, and relief of the indigent juvenile court may, in their discretion, at any sick and otherwise dependent poor. Further, time before such child reaches the age of fifteen that on or about the 16th day of November, years, discontinue or modify the allowance to 1914, respondent paid the dependent mothers' any mother and for any child.

"Sec. 5. Should the fund herein authorized be tax under written protest to the county treas- sufficient to permit an allowance to only a part urer of Grand county, together with $100.64 of the persons coming within the provisions of accrued interest on the same and $2.75 costs court shåll select those cases in most urgent need

this law, the county commissioners or juvenile of advertisement, sale, and redemption certif- of such allowance." icate. Conclusions of law were made from the

[1, 2] Respondent contends that such statforegoing agreed facts that Grand county was

ute authorizing the assessment, levy, and colwithout authority to levy such dependent lection of a dependent mothers' tax is unconmothers' tax and that the tax was illegal and stitutional and void for the reason that it void; that the officers of the county charged takes private property for other than a pubwith the duty to enter tax levies and collect lic purpose; that the act is discriminatory the same were without power or authority to and favors a class, and is therefore in violaenter such levy on the assessment rolls or to tion of article 14, § 1, of the federal Constiassess respondent's property with such tax or to collect taxes from respondent based on stitution. Respondent also contends that the

tution, and of article 1, § 7, of the Utah Consuch levy. Judgment was entered in favor of respondent for the amount paid, together in excess of the taxing limit fixed by Comp.

tax is illegal and without authority, as being with the accumulated interest and costs of

Laws 1907, § 2593. the action. From that judgment Grand coun

We shall consider these contentions in the ty appeals to this court.

order named: The sections of the statute in question (Laws 1913, c. 90), so far as material here, legislative power of the state is vested in the

By article 6, § 1, of the Constitution, the are as follows:

“Section 1. It shall be the duty of the county Legislature thereof. It is provided by article commissioners of each county in this state, and 13, § 3, of the Constitution, that the Legisthey are hereby authorized and empowered to lature shall provide by law a uniform and provide funds in an amount sufficient to meet equal rate of assessment, and shall prescribe the purposes of this law, but not exceeding in any one year the sum of ten thousand dollars, by general law such regulations as shall sesuch funds to be expended for the partial sud-cure a just valuation for taxation of all propport of mothers who are dependent upon their erty, etc. Section 5 of the same article gives own efforts for the maintenance of their chil- to counties, cities, towns, and other municipal dren.

“Sec. 2. The allowance to each of such moth- corporations the power to assess and collect ers shall not exceed ten dollars a month when taxes for all purposes of such corporations, she has but one child under the age of fifteen and is in the following language: years, and if she has more than one child under the age of fifteen years, it shall not ex "The Legislature shall not impose taxes for ceed the sum of ten dollars a month for the first the purpose of any county, city, town or other child and five dollars a month for each of the municipal corporation, but may by law vest in other children under the age of fifteen years. the corporate authorities thereof, respectively,

“Sec. 3. Such allowance shall be made by the the power to assess and collect taxes for all purcounty commissioners, except in counties having poses of such corporation."

It is conceded that the phrase, “for all pur- í Legislature, by this act, has determined that poses of such corporation," includes every ob-i to be a policy of the state. Such being the ject or purpose for which a tax may be legal- object of the act, this court would not be jusly levied. In other words, the expression is tified in declaring the act invalid and that synonymous with the phrase generally used the funds so used are not used for a public by test-writers and courts, “public purposes." | purpose. We have, then, to determine in this case

The principle or rule that should guide the whether the object for which the tax in ques-court in determining the constitutionality of tion was levied, as set out in the act, can be any legislative act is lucidly and well stated upheld as for a “public purpose."

by the Supreme Court of Missouri in Ex The determination of that question is not parte Loving, 178 Mo. at page 203, 77 S. W. without difficulty. The authorities on such at page 509, quoting from other decisions of or like questions are not in harmony. · What that court in the following language: may or may not be termed a “public purpose"

"It is the duty of the courts to uphold a legis not easily defined, and no definition has islative act unless it plainly and clearly violates as yet been framed that will fit all condi- the Constitution, and, if its language is susceptions or provisions of legislation. That the tible of a meaning that will remove the objec

tions to its validity, such interpretation should objects of the act now under consideration be adopted. 'A legislative intent to violate the were beneficent, and in the judgment of the Constitution is never to be assumed if the lanlawmakers to the best interests of the state, guage of the statute can be satisfied by a conwill not be questioned ; and yet the determi- tation of Statutes, $ 178. It is our duty to up

trary construction.' Endlich on the Interprenation of the legality or constitutionality of hold the act unless it plainly and clearly violates the act must be based upon some recognized the fundamental law of the state, and, if its lanrule of construction that would authorize the guage is susceptible of a meaning that will re

move the objections to its validity, such interLegislature to appropriate the public funds pretation should be adopted." for the purposes mentioned in the act. We

In Booth v. Town of Woodbury, 32 Conn. are not prepared to hold that the Legislature

118, it is said: might not provide for the appropriation of

"In the first place if it be conceded that it is public funds for the purposes stated. To do not competent for the legislative power to make so would be to hold that the Legislature has a gift of the common property, or of a sum of exceeded its authority, as that authority is money to be raised by taxation, where no possi

benefit, direct or indirect, can limited by the common acceptation of the be derived therefrom, such exercise of the legisineaning of the phrase “public purpose." It lative power must be of an extraordinary charwill be conceded, we take it, that the proper acter to justify the interference of the judiciary ;

and this is not that case. rearing and bringing up of children, their ed- the least possibility that making the gift will be

Second, if there be ucation, their moral welfare, can all be sub-promotive in any degree of the public welfare, served better by giving to such children the it becomes a question of policy, and not of natcompanionship, control, and management of ural justice, and the determination of the Leg

islature is conclusive. And such is this case. their mothers than by any other system de- Such gifts to unfortunate classes of society, as vised by human ingenuity. The object of the the indigent blind, • * colleges or schools, act is to provide means whereby mothers who or grants of pensions, swords, or other memenare otherwise unable may be enabled to give good indirectly and in slight degree, are fre

toes for past services, involving the general such attention and care to their children of quently made and never questioned." tender years as their health, education, and In Broadhead v. Milwaukee, 19 Wis. 624, comfort require. The act further provides 88 Am. Dec. 711, the Supreme Court of that that no such money shall be appropriated or state said: given unless the mother is a fit person moral "To justify the court in arresting the proly and physically to be intrusted with the ceedings and declaring the tax void, the absence rearing of young children, and that only dur- of all possible public interest in the purposes

for which the funds are raised must be clear ing the years when the children are unable and palpable-so clear and palpable as to be perto determine right from wrong or to earn a ceptible by every mind at the first blush." livelihood. The act having for its object the To the same effect is the decision of this better care and training, mental and physical, court in the recent case of Rio Grande Lumof children who are to become the citizens of ber Co. v. Darke, 167 Pac. 241, wherein Mr. the state, would at least leave the constitution- Justice Thurman, speaking for the court, ality of such act doubtful, and it is the duty says: of courts in deterinining the constitutionality

"It is a fundamental rule in construing a of any act to resolve every doubt in favor of statute, when its validity is challenged on con

stitutional grounds, that the courts will not conits constitutionality. We are not prepared to sider mere questions of policy or expediency. hold that the act, in effect, does not define These are matters of legislation, and belong to and declare a policy of the state, nor that it

the legislative department of

government.

For the judiciary to dictate the mat. is not within the province of the Legislature, ters of policy and expediency and seek to nulto so define and declare a state policy. Hav- lify acts of the lawmaking body, because it coning in mind the public welfare by assisting in ceives that such acts are impolitic or unnecessa

ry, would be just as flagrant a violation of the surrounding children of tender years with Constitution as would be an act of the Legislahome associations, with the care and nurture ture which would deprive a person of life, lib

It may be contended that to leave the pow-, county to provide funds, etc., that such comer to levy taxes for the purposes mentioned missioners should provide such funds by the in this act is removing practically every only legal means within their power, namely, limitation upon the taxing power of the Leg. levying an additional tax on the property in islature. That does not necessarily follow; such county. If any other view be taken, but should the time ever come when the elec- then we must assume that the Legislature intors, through ignorance or want of sufficient tended the act in question to be stillborn interest in their public officers, fail to check and of no effect. That we may not do. The any extravagance or waste of the public only way, therefore, it may be given effect funds through acts of their chosen represen- is to treat it as the last expression of the tatives in the Legislature, then any limita- Legislature upon the subject treated in section that the court might attempt to throw tion 2593, supra. Instead of expressing the around the right of the taxing power would limitation in mills or in fractions thereof, prove abortive and be easily evaded. The the amount that can be raised by taxation chief safeguard against extravagance or for the purposes mentioned in the act is spemarked delinquency of any system must be cifically limited. There is therefore a limifound in the knowledge and rectitude of the tation beyond which the county commissionpeople, and in the honesty and intelligence ers may not go, precisely as contemplated in of their representatives.

section 2593, supra. We must, therefore, while admitting the We are not to be understood as holding question is not free from doubt, resolve that that any act of the Legislature authorizing doubt in favor of the power of the legisla- the expenditure of public funds for every ture to authorize the expenditure as provid- purpose could or should be permitted by the ed in the act in question,

courts. We are simply determining in this What has been said above answers the sec- case that the question is so close and not ond objection urged by respondent against free from difficulty of determination that the validity of the tax in question.

we are resolving that doubt in favor of the [3] The further contention that the tax is policy established by the Legislature, and excessive, as being in excess of the maximum we are not expressing any opinion as to the allowed by Comp. Laws 1907, § 2593, cannot wisdom or desirability of such policy. That be sustained. That section, which has been is peculiarly within the province of the Legin force in this state practically since state islature, and any error of law that leads to hood, reads:

extravagance, or fraud, or imposition upon “The board of county commissioners of each the public can be easily corrected by the peocounty must, between the first Monday in July ple themselves through their representatives. and the second Monday in August in each year, • We are not unmindful that many courts of fix the rate of county taxes, and designate the the highest authority, and whose judgments number of mills on each dollar of valuation of property for each fund, and must levy taxes up- are entitled to great weight and respect, have on the taxable property of the county not ex- stated rules or elucidated principles which ceeding five mills on the dollar for general coun- might, by analogy, seem to hold contrary to ty purposes, and may levy a tax not exceeding the views herein expressed; but considering one mill on the dollar additional for the care, maintenance, and relief of the indigent sick and the purposes of the act, and the safeguards otherwise dependent poor, and not exceeding thrown around the appropriation of the four mills on the dollar for district school pur- funds, we do not feel justified in holding it poses.'

beyond the power of the Legislature. It is a matter of common knowledge, and It follows from the foregoing that the case one that the Legislature must have known should be reversed and remanded to the disand had in mind when it enacted the law trict court, with directions to make conclucomplained of, in 1913, that every county in sions of law in accordance with this opinthe state needed and had been levying a tax ion and enter judgment dismissing the comfor the purposes mentioned in section 2593, plaint. Such is the order. Appellant to resupra, up to the full limit permitted thereby. cover costs. Therefore it must have been the intention of the Legislature when it enacted the law di- FRICK, C. J., and MCCARTY, CORFMAN, recting the county commissioners of each and THURMAN, JJ., concur.

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