Marion v. City of Lander , 1964 Wyo. LEXIS 117 ( 1964 )

Mr. Justice McINTYRE

(dissenting).

In my view of this case, there are two reasons why the court should not give approval or sanction to the actions of the city council in its attempt to include the entire City of Lander in one local-improvement district for multiple improvements. First, such actions are as a matter of law unreasonable, arbitrary and capricious. And second, the city in this particular instance has improperly attempted to create two improvement districts in one proceeding.

Reasonableness

The act under which the city council has proceeded, Ch. 145, S.L. of Wyoming, 1963, describes the term “improvement” as any local improvement of any kind. See Ch. 145, § 1 E, S.L. of Wyoming, 1963. It is impossible for me to think of an improvement in one corner of the 'city as being local with respect to the extreme opposite corner.

Four kinds of improvements are specified in the council’s declaration of intention. They are: (1) Residential street paving; (2) arterial street paving; (3) curb and gutter improvements; and (4) drainage and incidental improvements. Fifty-eight different portions of streets are described for improvements, with a change in existing street elevations or grades at some locations.

In § 12(b) (v) of the 1963 act, the legislature has undertaken to authorize more than one improvement to be combined in a single-improvement district when the council determines that such a combination is efficient and economical. It goes without saying that such a determination must be reasonable and not arbitrary or capricious. If the statute were otherwise interpreted, it would violate the constitutional requirements of due process of law. Kalman v. Western Union Telegraph Company, Wyo., 390 P.2d 724, 726-727. See also State v. Cater’s Motor Freight System, 27 Wash.2d 661, 179 P.2d 496, 499.

Sections 15-530 to 15-541, W.S.1957, provide for the making of local improvements and other types of city improvements in general, to be financed by the issuance of bonds voted on by the people of the city. Section 15-531, W.S.1957, specifically provides that no bonds except local-improvement bonds, as provided by law, shall be issued for improvements until the proposition to issue the same has been submitted to such a vote.

The obvious legislative intent is to exempt from the necessity of a vote of the people only those bonds which are issued for improvements which can be classed as strictly local. If the improvement is local and the city proceeds under Ch. 145, property owners can defeat the project only if protests are filed by legal owners of record of over one-half of the area of the property subject to assessment. See Ch. 145, § 5, S.L. of Wyoming, 1963.

This is where the test of reasonableness becomes apparent. If the city is fair and reasonable, and if it acts without being arbitrary or capricious, it will follow ' the spirit of the local-improvement statutes and give each property owner a genuine and bona fide chance to protest whatever improvement he is being assessed for.

■ When the improvement or combination of improvements is strictly local to a particular property owner, he has a chance to call upon his neighbors and prevail upon them either to support or to protest the city’s proposal. However, when the improvement or improvements for which he is assessed is combined with numerous and divergent other improvements, all of which cost $2,322,171.00,. in more than fifty-eight locations and extending over an entire city of 4,182 inhabitants, then his chances of prevailing upon sufficient property owners to approve or reject the combined proposal is effectively taken from him.

There could be no possible reason for the city council to include all city improvements considered to be desirable in a combination of one package, taking in the entire city, unless the council hopes to avoid bond issues voted on by the people and at the same time hopes to adopt an assessment system under which it is impossible, or practically so, for dissident property owners to defeat the proposal by the filing of affirmative protests.

To me, the council’s action was a subterfuge and therefore unreasonable, arbitrary and capricious as a matter of law. That the city council has so acted is apparent from defendants’ own affidavits and from the record before us, and summary judgment should not have been granted against the complaint of the plaintiffs.

District Within A District

A particular illustration of the manner in which the city has effectively avoided possible protests is shown in the manner in which it attempts to establish two improvement districts (one within the other) under the guise and pretense of one so-called local-improvement district.

The city council purports to establish Local Assessment District No. 1 and to describe its boundaries by metes and bounds, including therein all of the City of Lander. In its ordinance the city recognizes and states that the various improvements are separate and distinct with substantial differences in character, location, method of assessment and otherwise.

Section 7 of the ordinance pertains to boundaries of the drainage and incidental improvement area. It declares: “There is hereby created within the boundaries of said City of Lander, Wyoming, Local Assessment District No. 1, an area for the purpose of determining the property to be uniformly assessed for drainage and incidental expenses.” The boundaries of this area are described by metes and bounds, and it is expressly stated that such area lies entirely within the City of Lander and the District.

Thus, by the simple expedient of calling the drainage and incidental improvement district an “area” rather than an improvement district, which it is, the council creates what is actually (regardless of the name given it) an improvement district within an improvement district. I know of no statutory authority for such action. Section 12(b) (v) only authorizes more than one improvement to be combined in a single improvement district.

I am still dealing, also, with the arbitrary and unreasonable manner in which the city has taken from certain property owners a fair and bona fide opportunity to protest. In order to make my point more lucid, I take the case of property owners within the drainage and incidental improvement “area.” Their properties only are being assessed for these particular improvements.

If the legal owners of over half of this area protested against the drainage improvements and incidental improvements, they should in all fairness be entitled to defeat such improvements. That opportunity is taken from them, however, by reason of the fact that all property of the city is placed in one purported district. The result is a situation so hopeless, it is understandable that these particular property owners may not have tried to protest even though they might have voted against bonds if a bond election had been held.

In Gorrell v. City of Casper, Wyo., 371 P.2d 835, 840, we discussed statutory provisions then in effect for an enlarged district. We said undoubtedly the legislature contemplated that a protest by the owners of over one-half of the property situated in either the local-improvement district or the enlarged district (which includes the smaller) would be sufficient to prevent further proceedings. I am still of the same opinion as was expressed by the entire court at that time, i. e., that a protest by the owners of over one-half of the smaller area should be sufficient to prevent further proceedings.

Subsequent to the Gorrell decision and prior to the actions of the city council in this case, the legislature saw fit to repeal all provisions pertaining to an enlarged district, particularly § 15-506, W.S.1957. See Ch. 145, § 17, S.L. of Wyoming, 1963. That has left no pretense of authority to the City of Lander for an enlarged district, and it is now confined strictly to such an improvement district as can properly be classed as a local-improvement district.

Even though restrictions may be absent in Ch. 145 as to how far a city council may go in combining separate and distinct local improvements, the requirements of due process restrain and prohibit such combinations as become unreasonable, arbitrary and capricious. Pirie v. Kamps, 68 Wyo. 83, 229 P.2d 927, 929, 26 A.L.R.2d 647; In re Lutker, Okl.Cr., 274 P.2d 786, 789. See generally with respect to abuse of discretion, Thompson v. Conwell, Wyo., 363 P.2d 927, 928, and the cases cited therein.

If the combination is such that it effectively takes away from any group of property owners a reasonable opportunity to defeat any improvement for which they are being assessed, then it is unreasonable and arbitrary. The combination of improvements involved in the instant case, in my opinion, clearly has that effect.

These considerations compel me to take the position that the complaint of the plaintiffs has merit. I think the summary judgment for defendants should be reversed and not affirmed.