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 defendant." The error in such instruction was not cured by other instructions, correctly stating the rule respecting the burden of proof, where the evidence was conflicting, and such that more than one conclusion was permissible, and the record left it in doubt whether the jury followed the proper instruction or the improper one. Appeal from District Court, Salt Lake County; W. H. Bramel, Judge. Action by Marie Sorenson and others against John W. Bell. From a judgment for defendant, plaintiffs appeal. Reversed and remanded. Weber, Olson & Lewis, of Salt Lake City, for appellants. W. E. Rydalch and Geo. G. Armstrong, both of Salt Lake City, for respondent. FRICK, C. J. Marie Sorenson, as the surviving widow, and the other plaintiffs as the surviving children of one Hans Sorenson, deceased, brought this action against the defendant to recover damages caused by the death of said Hans Sorenson. It is alleged in substance in the complaint that the defendant, on the 23d day of July, 1916, negligently and carelessly, and in violation of an ordinance of Salt Lake City, drove his automobile against and over the body of said Sorenson, thereby inflicting injuries upon him from which he subsequently, on the 31st day of July, 1916, died. Plaintiffs allege damages and pray for judgment. Defendant in his answer denies the alleged acts of negligence, and sets up the defenses of assumed risk and contributory negligence on the part of the deceased. A trial to a jury resulted in a verdict in favor of the defendant, on which judgment was duly entered, and the plaintiffs appeal. [1] In view of the errors that are assigned and insisted upon, it is only necessary to state that the evidence presented to the jury tended to show negligence on the part of the defendant, and that such negligence was the proximate cause of Sorenson's death. There was also evidence supporting a contrary conclusion. There was also evidence tending to prove that the deceased was guilty of negligence which was the proximate cause of, or which proximately contributed to, his death. The state of the evidence was therefore such that required the submission of the case to the jury in order to find the facts. The district court did submit the case to the jury, and in doing so, appellants contend, erred in its charge to the jury. One of the instructions that is complained of here, and which was excepted to in the district court by appellants, reads as follows: Counsel contend, stating the contention in their own language, that: "The instruction is erroneous, and places a greater burden upon the deceased than the law imposes on him. All that the deceased was compelled to do was to exercise ordinary care to avoid injury to himself, and if, in the exercise of ordinary care, there were open to him several courses of action, he was entitled to follow any one of those courses. the rule that if he might have avoided the acciThe instruction lays down dent by a particular act of ordinary care, plaintiffs were not entitled to recover, although the deceased might have exercised ordinary care in the course which he followed. The instruction does not require that the deceased should have been guilty of contributory negligence in order to defeat plaintiffs' right to recover, but in effect tells the jury that, even though the deceased was himself free from contributory negligence, yet if he might have avoided the accident by stopping and allowing the car to go by, plaintiffs could not recover, although the deceased may not have been guilty of any negligence whatever by failing to stop and so permitting the autoThe law is mobile to have the right of way. not that the plaintiffs cannot recover if the deceased might have avoided the accident by the exercise of some particular act, but the law requires that in order to defeat the action on the ground of contributory negligence, the deceased must be guilty of some negligent act that contributed to his death." [2, 3] It must be conceded that the lantible of the meaning placed upon it by counguage in the foregoing instruction is suscepsel. If the foregoing were the only error complained of, however, we should not, in view of the whole charge, in which the court more clearly and correctly stated the rights and duties of the deceased, feel inclined to reverse the judgment. There is, however, a further assignment relating to the court's instructions which is more serious. The court also instructed the jury as follows: "Unless you find from a preponderance of the evidence that the alleged negligence of the defendant actually existed and was the sole proximate cause of the injury to the deceased, and that the deceased, Hans Sorenson, was free from any negligence or want of reasonable care proximately contributing to the injury, the plaintiff is not entitled to recover, and your verdict should be for the defendant." That instruction was also excepted to. It will be observed that in the foregoing instruction the court charged the jury that in order to find for the plaintiff the jury must find from a preponderance of the evidence that the defendant was negligent as alleged in the complaint, and that such negligence was the proximate cause of injury complained of. If the court had stopped there the instruction would have stated the law correctly. The court, however, also added to the foregoing, "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 care, have stopped and permitted the automobile statement just quoted may also be conceded 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 years with care and nurture of their natural the partial support of mothers who are dependprotectors, by appropriating public funds for ent upon their own efforts for the support of their children, is within the public policy of the state, the Supreme Court would not be justified in declaring the act invalid or that the funds used for the purposes of the act are not used for a "public purpose." · all the language contained in the instruction, [ determined that surrounding children of tender and in view of the manner of statement, in effect charged the jury that, "unless it appear from a preponderance of the evidence * that the deceased was free from any negligence or want of reasonable care," the plaintiffs could not recover. While it is true that respondent's counsel insist that the court merely intended that the jury must find defendant's negligence, and that such negligence was the proximate cause of the injury "from a preponderance of the evidence," yet the only fair, natural, obvious and ordinary meaning of the language contained in the foregoing instruction is that the jury were required to find from a preponderance [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Public Purpose.] MOTHERS' The constitutionality of Laws 1913, c. 90, known as the Dependent Mothers' Act, being doubtful, doubts will be resolved in favor of its constitutionality.1 3. COUNTIES 190(2)-TAXATION-AMOUNTLIMITATIONS-DEPENDENT MOTHERS' ACT. ent poor, and four mills on the dollar for district school purposes. of the evidence that the deceased was free from negligence, etc.; and, unless they so 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 chilthe 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 ty, although such levy would increase the total taxes in excess of the maximum allowed by 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 evidence is conflicting upon the subject covered by the instructions, or is such that more than one conclusion is permissible, and the record leaves it in doubt whether the jury followed the instruction that is proper or the one that is improper, then but one result is legally permissible in this court, and that is to reverse the judgment and grant a new trial to the aggrieved party. The district court no doubt had in mind correct principles of law when it framed the instruction, but in stating those principles it used language which cast a burden on plaintiffs which the law does not require of them. The instruction is therefore clearly erroneous. For the reasons stated, the judgment is reversed, and the cause is remanded to the district court of Salt Lake county, with directions to grant plaintiffs a new trial. Plaintiffs to recover costs. Appeal from District Court, Grand County; A. H. Christensen, Judge. Action by the Denver & Rio Grande Railroad Company against Grand county. Judgment for plaintiff, and the county appeals. Reversed and remanded. Knox Patterson, of Moab, for appellant. Van Cott, Allison & Riter, of Salt Lake City, for respondent. GIDEON, J. Respondent seeks to recover the sum of $912.66, claimed to have been unlawfully collected in the year 1914 by appellant under an act of the Legislature of 1913, c. 90 (Laws Utah 1913), known as the "Dependent Mothers' Act." The cause was heard by the court upon an agreed statement of facts. From such statement it appears that the railroad company is MCCARTY, THURMAN, CORFMAN, and a corporation existing under the laws of the GIDEON, JJ., concur. (51 Utah, 294) DENVER & R. G. R. CO. v. GRAND COUNTY. (No. 3088.) (Supreme Court of Utah. Dec. 21, 1917.) states of Utah and Colorado, and owns and operates a main line of railway extending from Ogden, Utah, in a southeasterly direction through several counties of Utah, including Grand county, and thence into Colorado; that Grand county is a duly organized county 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 CORPORATION"-"PUBLIC PURPOSES." 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 Indexes DENVER & R. G. R. CO. v. GRAND COUNTY the railroad of respondent located in said Grand county in the sum of $929,652, and that that amount was duly apportioned among the various taxing districts in the county in which the property and franchises of the respondent are located; that in said year 1913 the appellant, through its proper officers, levied what is termed a dependent mothers' tax upon all the property of respondent situate in said county of one mill on each dollar of assessed valuation, and that the same was entered upon the assessment rolls of said county, and that the dependent mothers' tax so levied amounted to the sum of $912.66; that a demand was made upon respondent for the payment of the same. It appears further in the stipulation that in addition to the said dependent mothers' tax the appellant, through its proper officers, levied other taxes for said year against the property of respondent as follows: Five mills on the dollar for general county purposes, four mills on the dollar for county school purposes, and one-half mill on the dollar for the care, maintenance, and relief of the indigent sick and otherwise dependent poor. Further, that on or about the 16th day of November, 1914, respondent paid the dependent mothers' tax under written protest to the county treasurer of Grand county, together with $100.64 accrued interest on the same and $2.75 costs of advertisement, sale, and redemption certificate. Conclusions of law were made from the foregoing agreed facts that Grand county was without authority to levy such dependent mothers' tax and that the tax was illegal and void; that the officers of the county charged with the duty to enter tax levies and collect the same were without power or authority to enter such levy on the assessment rolls or to assess respondent's property with such tax or to collect taxes from respondent based on such levy. Judgment was entered in favor of respondent for the amount paid, together with the accumulated interest and costs of the action. From that judgment Grand county appeals to this court. The sections of the statute in question (Laws 1913, c. 90), so far as material here, are as follows: 75 a population of one hundred and twenty-five thousand or more, the authority, power and duty of determining upon allowance to be made upon and be exercised by the juvenile judge of under the provisions of this act shall devolve the district in and for such counties. Such allowance shall be made only upon the following benefit the allowance is made must be living conditions: (1) The child or children for whose with the mother of such child or children. (2) The allowance shall be made only when in the absence of such allowance a mother would be reand children, and when by means of such allowquired to work regularly away from her home ance she will be able to remain at home with her children. (3) The mother must, in the judgment be a proper person morally, physically and menof the county commissioners or juvenile court, tally, for the bringing up of her children. (4) Such allowance shall, in the judgment of the county commissioners or juvenile court, be nec(5) No persons [person] shall receive the benefit essary to save the child or children from neglect. of this act who shall not have been a resident of the county in which such application is made such application for such allowance. for at least two years next before the making of age of fifteen years, any allowance made the "Sec. 4. Whenever any child shall reach the mother of such child for the benefit of such juvenile court may, in their discretion, at any child shall cease. The county commissioners or time before such child reaches the age of fifteen years, discontinue or modify the allowance to any mother and for any child. sufficient to permit an allowance to only a part "Sec. 5. Should the fund herein authorized be of the persons coming within the provisions of court shall select those cases in most urgent need this law, the county commissioners or juvenile of such allowance." ute authorizing the assessment, levy, and col[1, 2] Respondent contends that such statlection of a dependent mothers' tax is unconstitutional and void for the reason that it takes private property for other than a public purpose; that the act is discriminatory and favors a class, and is therefore in violation of article 14, § 1, of the federal Constitution, and of article 1, § 7, of the Utah Constitution. Respondent also contends that the tax is illegal and without authority, as being in excess of the taxing limit fixed by Comp. Laws 1907, § 2593. We shall consider these contentions in the order named: legislative power of the state is vested in the By article 6, § 1, of the Constitution, the "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 sup- 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 "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 under the age of fifteen years, it shall not exone child ceed the sum of ten dollars a month for the first child and five dollars a month for each of the other children under the age of fifteen years. "Sec. 3. Such allowance shall be made by the county commissioners, except in counties having dren. the purpose of any county, city, town or other "The Legislature shall not impose taxes for municipal corporation, but may by law vest in the power to assess and collect taxes for all purthe corporate authorities thereof, respectively, poses of such corporation." It is conceded that the phrase, "for all pur-¡ Legislature, by this act, has determined that poses of such corporation," includes every ob- 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 jus ly 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 text-writers and courts, "public purposes." purpose. We have, then, to determine in this case whether the object for which the tax in question was levied, as set out in the act, can be upheld as for a "public purpose." The principle or rule that should guide the court in determining the constitutionality of any legislative act is lucidly and well stated by the Supreme Court of Missouri in Ex parte Loving, 178 Mo. at page 203, 77 S. W. at page 509, quoting from other decisions of that court in the following language: "It is the duty of the courts to uphold a legislative act unless it plainly and clearly violates the Constitution, and, if its language is susceptible of a meaning that will remove the objections to its validity, such interpretation should be adopted. A legislative intent to violate the Constitution is never to be assumed if the language of the statute can be satisfied by a contation of Statutes, § 178. It is our duty to uptrary construction.' Endlich on the Interprehold the act unless it plainly and clearly violates the fundamental law of the state, and, if its language is susceptible of a meaning that will remove the objections to its validity, such interpretation should be adopted." In Booth v. Town of Woodbury, 32 Conn. 118, it is said: ble * * "In the first place if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possibenefit, direct or indirect, can be derived therefrom, such exercise of the legislative power must be of an extraordinary char acter to justify the interference of the judiciary; the least possibility that making the gift will be and this is not that case. Second, if there be it becomes a question of policy, and not of nat- The determination of that question is not without difficulty. The authorities on such or like questions are not in harmony. What may or may not be termed a "public purpose" is not easily defined, and no definition has as yet been framed that will fit all conditions or provisions of legislation. That the objects of the act now under consideration were beneficent, and in the judgment of the lawmakers to the best interests of the state, will not be questioned; and yet the determination of the legality or constitutionality of the act must be based upon some recognized rule of construction that would authorize the Legislature to appropriate the public funds for the purposes mentioned in the act. We are not prepared to hold that the Legislature might not provide for the appropriation of public funds for the purposes stated. To do so would be to hold that the Legislature has exceeded its authority, as that authority is limited by the common acceptation of the meaning of the phrase "public purpose." It will be conceded, we take it, that the proper rearing and bringing up of children, their education, their moral welfare, can all be sub-promotive in any degree of the public welfare, served better by giving to such children the companionship, control, and management of their mothers than by any other system devised by human ingenuity. The object of the act is to provide means whereby mothers who are otherwise unable may be enabled to give such attention and care to their children of tender years as their health, education, and comfort require. The act further provides that no such money shall be appropriated or given unless the mother is a fit person morally and physically to be intrusted with the rearing of young children, and that only during the years when the children are unable to determine right from wrong or to earn a livelihood. The act having for its object the better care and training, mental and physical, of children who are to become the citizens of the state, would at least leave the constitutionality of such act doubtful, and it is the duty of courts in determining the constitutionality of any act to resolve every doubt in favor of its constitutionality. We are not prepared to hold that the act, in effect, does not define and declare a policy of the state, nor that it is not within the province of the Legislature to so define and declare a state policy. Having in mind the public welfare by assisting in surrounding children of tender years with home associations, with the care and nurture or grants of pensions, swords, or other mementoes for past services, involving the general good indirectly and in slight degree, are frequently made and never questioned." In Broadhead v. Milwaukee, 19 Wis. 624, 88 Am. Dec. 711, the Supreme Court of that state said: "To justify the court in arresting the proceedings and declaring the tax void, the absence for which the funds are raised must be clear of all possible public interest in the purposes and palpable-so clear and palpable as to be perceptible by every mind at the first blush." To the same effect is the decision of this court in the recent case of Rio Grande Lumber Co. v. Darke, 167 Pac. 241, wherein Mr. Justice Thurman, speaking for the court, says: "It is a fundamental rule in construing a statute, when its validity is challenged on constitutional grounds, that the courts will not consider mere questions of policy or expediency. These are matters of legislation, and belong to the legislative department of government. * For the judiciary to dictate the matters of policy and expediency and seek to nullify acts of the lawmaking body, because it conceives that such acts are impolitic or unnecessary, would be just as flagrant a violation of the Constitution as would be an act of the Legislature 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; but should the time ever come when the electors, through ignorance or want of sufficient interest in their public officers, fail to check any extravagance or waste of the public funds through acts of their chosen representatives in the Legislature, then any limitation that the court might attempt to throw around the right of the taxing power would prove abortive and be easily evaded. The chief safeguard against extravagance or marked delinquency of any system must be found in the knowledge and rectitude of the people, and in the honesty and intelligence of their representatives. We must, therefore, while admitting the question is not free from doubt, resolve that doubt in favor of the power of the legislature to authorize the expenditure as provided in the act in question. What has been said above answers the second objection urged by respondent against the validity of the tax in question. [3] The further contention that the tax is excessive, as being in excess of the maximum allowed by Comp. Laws 1907, § 2593, cannot be sustained. That section, which has been in force in this state practically since state hood, reads: "The board of county commissioners of each county must, between the first Monday in July and the second Monday in August in each year, fix the rate of county taxes, and designate the number of mills on each dollar of valuation of property for each fund, and must levy taxes upon the taxable property of the county not exceeding five mills on the dollar for general county purposes, and may levy a tax not exceeding one mill on the dollar additional for the care, maintenance, and relief of the indigent sick and otherwise dependent poor, and not exceeding four mills on the dollar for district school purposes." It is a matter of common knowledge, and one that the Legislature must have known and had in mind when it enacted the law complained of, in 1913, that every county in the state needed and had been levying a tax for the purposes mentioned in section 2593, supra, up to the full limit permitted thereby. Therefore it must have been the intention of the Legislature when it enacted the law directing the county commissioners of each such county. If any other view be taken, then we must assume that the Legislature intended the act in question to be stillborn and of no effect. That we may not do. The only way, therefore, it may be given effect is to treat it as the last expression of the Legislature upon the subject treated in section 2593, supra. Instead of expressing the limitation in mills or in fractions thereof, the amount that can be raised by taxation for the purposes mentioned in the act is specifically limited. There is therefore a limitation beyond which the county commissioners may not go, precisely as contemplated in section 2593, supra. We are not to be understood as holding that any act of the Legislature authorizing the expenditure of public funds for every purpose could or should be permitted by the courts. We are simply determining in this case that the question is so close and not free from difficulty of determination that we are resolving that doubt in favor of the policy established by the Legislature, and we are not expressing any opinion as to the wisdom or desirability of such policy. That is peculiarly within the province of the Legislature, and any error of law that leads to extravagance, or fraud, or imposition upon the public can be easily corrected by the people themselves through their representatives. 'We are not unmindful that many courts of the highest authority, and whose judgments are entitled to great weight and respect, have stated rules or elucidated principles which might, by analogy, seem to hold contrary to the views herein expressed; but considering the purposes of the act, and the safeguards thrown around the appropriation of the funds, we do not feel justified in holding it beyond the power of the Legislature. It follows from the foregoing that the case should be reversed and remanded to the district court, with directions to make conclusions of law in accordance with this opinion and enter judgment dismissing the complaint. Such is the order. Appellant to recover costs. FRICK, C. J., and MCCARTY, CORFMAN, and THURMAN, JJ., concur. |