Northern Pacific Railway Co. v. Lutey ( 1937 )

Plaintiff brought this action to recover taxes in the sum of $177.63, paid under protest. It alleged in its complaint that the tax in question was attempted to be levied by the city council of the city of Helena for the year 1934 as a garbage tax. It is alleged that a general tax of 2.11 mills was levied upon all the property within the city for garbage removal, and that this levy was in excess of 15 mills levied for general municipal and administrative purposes. Paragraph VIII alleged: "That no garbage or other matter had ever been removed by said city from the property of this plaintiff, and all garbage and refuse matter upon the premises and property of this plaintiff, and in any alley, street or public ground adjacent thereto has been, at all times, and will be in the future, removed and cared for by this plaintiff, and this plaintiff has never received and will not receive any benefit whatever from the unlawful and excessive tax levied against and imposed upon its property, as aforesaid."

The answer denied all the allegations of paragraph VIII of the complaint, and alleged that the tax levy in question is not a general tax but is "a special tax levied for the purpose of garbage removal and that the same is assessed against the property from which such matter was deposited and all of which benefited said property within the meaning of section 5039." It also alleged that the levy was made pursuant to authority conferred by the people of Helena at an election held in 1902, whereat a majority of the electors expressed approval that the cost of garbage removal be borne by the city rather than by the persons served. It admitted that the 2.11-mill levy is in "excess of the 15 mills levied for general municipal and administrative purposes."

After the filing of the answer, plaintiff moved for judgment on the pleadings; the motion was denied. Plaintiff declined to plead further and judgment was accordingly entered for defendant. Plaintiff appealed from the judgment and makes two assignments of error, to wit, first, that the court erred in denying its motion for judgment on the pleadings; and, second, that it erred in rendering judgment for defendant. The second assignment is not urged in the brief, except as it is necessarily involved in the first. In other words, plaintiff does not contend that, if it is not entitled to judgment on the pleadings, there should have been a trial on the merits. Its sole argument is that it was and is entitled to judgment on the pleadings. We therefore will consider but the one question, Was plaintiff entitled to judgment on the pleadings?

Section 5039.6, Revised Codes of 1935, empowers the city council "to regulate the disposition and removal of ashes, garbage, or other offensive matter in any street, alley, or on public grounds or on any premises, and to provide for levying the cost of such removal as a special tax against the property from which such matter was deposited."

The authority to remove garbage is a part of the police power[1] exerted in the interest of public health. (Pantlind v.City of Grand Rapids, 210 Mich. 18, 177 N.W. 302, 15 A.L.R. 280.)

The special tax provided for by the above section, strictly[2, 3] speaking, is a device by which property owners are required to pay for services rendered. (Walker v. Jameson,140 Ind. 591, 37 N.E. 402, 39 N.E. 869, 28 L.R.A. 679, 683, 49 Am. St. Rep. 222.) It bears some analogy to a special assessment in that the municipal authorities must determine the fact question as to what property should be assessed in each instance. The rule is well established that the question of determining the area benefited by an improvement is a legislative function, and such legislative determination, unless palpably unjust, is usually conclusive (5 McQuillin on Municipal Corporations, 2d ed., sec. 2166), except in cases of fraud or manifest mistake (Id., sec. 2269). The city council's determination, pursuant to legislative authority, of the property benefited, in the absence of fraud or manifest mistake, is conclusive. (City of Detroit v. Weil, 180 Mich. 593, 147 N.W. 550; Newman v.Warner-Quinlan Asphalt Co., 71 Okla. 284, 177 P. 375;Crawford v. Cassity, 78 Okla. 261, 190 P. 412; Lansdown v.Kierns, 303 Mo. 75, 260 S.W. 88; Austin v. Tillamook City,121 Or. 385, 254 P. 819; Trimble v. City of Seattle,93 Wash. 472, 161 P. 381.)

Here, the statute authorizes the city to regulate the disposition and removal of offensive matter in any street, alley, or on public grounds, and to levy a tax against the property from which such matter was deposited. It is not always possible to ascertain definitely from what property offensive matter finds its lodgment in the streets or alleys or on public property. Its removal is necessary in the interest of public health. Whether all of the property in the city derives benefit from its removal, or, in the words of the statute, whether some offensive matter requiring removal comes from all property, real and personal, in the city is doubtful, to say the least. But if the levy in question covered too much property, it simply presents a case where the assessment was unlawful in part only.

Here there was issue tendered by the pleadings as to whether[4] garbage had been removed from plaintiff's property. If some of plaintiff's property was subject to the tax, and some was not, there is no showing as to what part of it was not subject thereto. The fact that property belonging to others than plaintiff may have been wrongfully assessed would not give plaintiff a right to complain, because in such case it is not injured. (Cooley on Taxation, 4th ed., sec. 1655; AnacondaCopper Min. Co. v. Ravalli County, 52 Mont. 422,158 P. 682.)

We recognize the rule that where a part of a tax is illegal,[5] and where the legal and illegal are inseparable, the whole must fall. (Hinz v. Musselshell County, 82 Mont. 502,267 P. 1113.) However, that rule cannot apply here, because here the only difference of opinion that can arise is whether certain property is subject to the tax. If it is not, then the tax as to it is illegal and can easily be separated from that which is subject thereto. And when the illegal can be separated from the legal, the entire tax will not fall. (Cooley on Taxation, 4th ed., sec. 1668.)

In view of the issue raised by the pleadings that garbage was[6] removed from plaintiff's property, and hence, if that question be decided in the affirmative, at least some of its property was subject to the tax, and it was not entitled to judgment on the pleadings.

The judgment is accordingly affirmed.

MR. CHIEF JUSTICE SANDS, and ASSOCIATE JUSTICES STEWART and ANDERSON concur.