Judges： Bruce, Christianson
Filed Date： 9/24/1917
Status： Precedential
Modified Date： 11/11/2024
This is an action in equity to restrain the levying, spreading upon the records, and collection of a special assessment in the city of Lisbon, North Dakota, and this opinion is written after a rehearing. The improvement involved is a standpipe which is to take the place of a water tank, and is to be used for the purposes of fire protection. The lower court held all the proceedings regular and valid, and in addition found the plaintiff guilty of laches. Plaintiff' has appealed and has asked for a trial de novo.
The first point raised by plaintiff and appellant is that the city council lacked jurisdiction because it never created a waterworks,district as required by § 3698 of the Compiled Laws of 1913. Section 3698 provides that “any city shall have power to create sewer, paving and water main-districts and waterworks districts, for the purpose-of constructing a waterworks system, including the construction and erection of a pumping station, settling basins, filtration plant, standpipes and water towers, reservoirs and other contrivances and structures-necessary for a complete waterworks system, etc.” Section 3701 provides that “such water-main districts and waterworks districts, etc. . . . shall be of such size and number as the city council, after-consultation with the city engineer, shall decide most practicable.” Section 3711 provides: “All special assessments levied under the provisions of this article shall constitute a fund for the payment of the cost of the improvement for the payment of which they are levied, and shall be diverted to no other purpose, and those for the payment of sewer-improvement shall be designated respectively ‘sewer district no. . . . fund,’ and such funds shall be numbered according to the number of' the sewer district in which it is raised. Those collected for paving improvements shall be designated as ‘paving district no. . . . fund,’ and such fund shall be numbered according to the paving district in which it is raised; and those levied for the payment of water
It would appear that this objection is well taken. Prior to the passage of chapter 74 of the Session Laws of 1913, there was no law in North Dakota whereby a waterworks system or a standpipe could be •constructed by a city and paid by a special assessment. See Price v. Fargo, 24 N. D. 440, 139 N. W. 1054. And it was only after the amendment referred to that assessments for such purposes could be levied. Prerequisite to the levying of such assessment was the creation •of a waterworks district. It is true that before such time water-main districts could be created and water mains could be paid for by special assessments, and that such a district was created in the city of Lisbon prior to the present improvement. It does not, however, necessarily follow that water-main and waterworks districts are the same and •cover the same territory. We have held that the fundamental requirements of the special assessment laws must be complied with. Robertson Lumber Co. v. Grand Forks, 27 N. D. 556, 147 N. W. 249, and it seems to be a general holding that the formation of the improvement district is the foundation for all subsequent proceedings. McCaffrey v. Omaha, 91 Neb. 184, 135 N. W. 552; Whitney v. Hudson, 69 Mich. 189, 37 N. W. 184.
Not only is this the case, but no resolution was adopted declaring that the work was necessary to be done, and which resolution is required by § 3704 of the Compiled Laws of 1913. Section 3704 provides .among other things that “after the plans, specifications and estimates . . . shall have been filed . . . and approved as provided in the preceding section the city council shall by resolution declare such work ■or improvement . . . necessary to be done, such resolution shall refer intelligently to the plans, specifications and estimates therefor, and shall be published twice. ... If the owners of a majority of the property liable to be specially assessed for such proposed improvement shall not, within fifteen days . . . file with the city auditor a
It is true that on June the 2d a resolution and ordinance was adopted ■directing the city engineer to prepare plans and specifications, and that said resolution contained the following words: “Whereas it appears to the city council that it is absolutely necessary that something be done to provide adequate water supply to afford fire protection.” It is also true that later and on the 16th day of June, 1913, another resolution was passed and was published twice, on the 19th and 26th days of June, to the effect that “whereas the plans, specifications, and estimates are now on file and have been approved for the construction of a standpipe, now, therefore, be it resolved by the city of Lisbon, state of North Dakota, that the standpipe be and the same hereby is ordered and declared to be constructed.” These resolutions, however, fall far short of a compliance with the statute. To say that the construction of a standpipe is necessary is not the same thing as saying that the construction of a standpipe, according to certain plans and specifications, is necessary, nor is a direction or order to construct a standpipe, according to such plans, a finding of necessity. The statute requires not merely a resolution of necessity, but a resolution that shall refer intelligently to the plans and specifications. Its purpose is clear and is twofold. It is that the city officers shall themselves carefully -consider the question of necessity as applied to the plans, and themselves be confronted with the determination of the question of actual necessity as well as of desirability. It means that they shall really consider the matter, and from every standpoint. The statute also purposes that the property owner may have the plans and specifications before him, or a proper reference thereto, in order that he may determine for himself whether in reason he should protest against the improvement. Whittaker v. Deadwood, 23 S. D. 538, 139 Am. St. Rep. 1076, 122 N. W. 593. These requirements are mandatory, and the property owner is entitled to a reasonable compliance therewith. Robertson Lumber Co. v. Grand Forks, 21 N. D. 556, 141 N. W. 249; Morrison v. Chicago, 142 Ill. 660, 32 N. E. 172.
But this is not all. Section 3126 of the Compiled Laws of 1913 provides for a personal inspection of all of the lots, and the determination from such inspection of the particular lots which will be
All that the chairman of the Commission can be made to testify to' is that they spent one or two hours in examining the lots; that they took an automobile and went from one part of the city to another, and that some of them may have gotten out; that he couldn’t tell whether he got out or not and looked at any of them; that to arrive at the amount necessary to be raised, they ascertained the cost of the standpipe, and then took that amount and divided it by the number of lots; that they didn’t discriminate in any way as to the benefit that might accrue to one lot and the benefit that might accrue to some other lot; that they merely took as a basis lots that were within 1,200 feet of hydrants, as they understood that the city hose would cover 1,200 feet; and “that they simply established an arbitrary standard of their own by dividing the total cost of the standpipe by the number of lots within the radius they purported to assess.”
We have repeatedly held that the matter of assessing property cannot be trifled with, and that owners thereof are entitled to at least the expenditure of some time on the part of the Commission. Robertson Lumber Co. v. Grand Forks, supra; McKenzie v. Mandan, 27 N. D. 546, 147 N. W. 808.
Nor do we believe that the fact that the plaintiff lived within 400* ■ feet of the standpipe and did not complain until after the standpipe was completed estop the plaintiff from proceeding in this case. The notice of special assessment was dated May 28, 1914, and called for a hearing on June 15, 1914. The present action was commenced on July 17, 1914. Plaintiff testified that, until he saw the notice of special assessment on May 28, 1914, he had no notice that the work was to be paid for by special assessment and that such notice was not filed with the city auditor until August 11, 1914. The defects, too, were fundamental and the failure to sooner protest was not fatal. Robertson Lumber Co. v. Grand Forks, supra; Keese v. Denver, 10 Colo. 112, 15 Pac. 825; Chicago v. Wright, 32 Ill. 192.
The next question to be determined is whether the injunction prayed for by the petitioner should be summarily issued and the case thus
It only differed from the statute of North Dakota in its clear expression of intention, and its mandatory provisions were practically identical. The court in its opinion called attention to the fact that the assessment in question had, in a prior proceeding, been declared void on the ground that the city council was without jurisdiction to malee the assessment, since the ordinance creating the improvement district failed to properly define the limits of the district. See Wiese v. South Omaha, 85 Neb. 844, 124 N. W. 470.
It then held that it was competent under the provisions of § 4748, Revised Stat. of 1913, just quoted for the city council to pass a new ordinance for the creation of the improvement district, and still another for the assessment of the benefits. In passing upon this question it said:
“Plaintiffs contend that the section quoted does not authorize a
“Is the reassessment statute unconstitutional as contended by plaintiffs? The power of the legislature to authorize a reassessment in case the first assessment has been declared invalid for failure to comply with provisions which the legislature might in the first instance have dispensed tuith is generally upheld [citing cases]. The first assessment was declared void for failure of the ordinance creating the improvement district to properly define its limits. The legislature might have authorized the city council on its own initiative to improve the street, and, after the improvement had teen completed, to create an improvement district and provide for the assessment of the property benefited, if notice thereof and opportunity were given to property owners to be heard upon the assessment.”
Again, in the case of Thayer Lumber Co. v. Muskegon, 157 Mich. 424, 122 N. W. 189, the court passed upon the question of reassessment where the original assessment was held void because the resolution adopted by the said city council did not designate the territory to be
It held that the council might cause a new assessment to be made, and it sustained such an assessment, although it was not only necessary to create the improvement district, but to find the necessity for the tuorlc after most of it had been done.
This rule was also applied in Upington v. Oviatt, 24 Ohio St. 232, and as to the whole assessment. Where “the first assessment was made during the progress of the work, and was intended to cover only a part of the expense of the improvement, the second assessment ordinance made no reference to the first, but it, together with the first, was intended to cover the entire cost. At the time it was made, however, the improvement had not been completed. A substantial part of the work at the time the suit was commenced, and at the time of the trial in the district court, still remains unperformed.”
Again, in the case of Keese v. Denver, 10 Colo. 112, 15 Pac. 825, and where the improvement, a sewer, had been entirely completed at the time of the bringing of the action, the court said: “It is urged by counsel for appellees that plaintiffs are estopped from now questioning the legality of the assessment, because they allowed the work to progress to completion without making any objection. The legality of the assessment is attacked upon the ground that the city council was not authorized to cause the sewer to be constructed, and hence not authorized to levy an assessment to pay for its construction. The objection goes to the origin of the proceedings, and is jurisdictional. The principles of estoppel have no application to the facts in this case. Chicago v. Wright, 32 Ill. 192; Re Sharp, 56 N. Y. 256, 15 Am. Rep. 415.”
Again, in the case of Enid v. Gensman, — Okla. —, 158 Pac. 377, although the court held that in the particular case the statutory provisions had not been complied with, it specifically upheld the validity
Section 576: “In case the corporate authorities of any city have •attempted to levy an assessment for improvements, which assessment may have been informal, illegal or void for want of sufficient authority or other cause, the council of such city shall reassess any such assessment in the manner provided in this chapter.”
Section 644: “In the event that any such assessment shall be found to be invalid or insufficient, in whole or in part, for any reason whatsoever, the city council may at any. time in the manner provided for levying an original assessment proceed to cause a new assessment to be made and levied which shall have like force and effect as an original •assessment.”
These sections are almost identical in language with the North Dakota provisions, which expressly provide that the new assessment shall be “as nearly as may be, as herein provided for making the assessment therefor in the first instance,” and the case is important in that it outlines the procedure to be followed and which must necessarily follow under the statute.
“It will be seen,” says the court, “that the former section provides for making the reassessment in the manner provided in this chapter,” which is the manner provided for levying an original assessment referred to in the latter section.
“It seems clear that levying an original assessment’ does not, in a case of lack of jurisdiction in the first instance, consist alone in the resolution, appointing the appraisers, the reception and consideration •of their report, and the final determination of the apportionment, but consists rather in taking all those requisites and jurisdictional steps which have been omitted, beginning with the resolution of necessity (in a case not initiated by petition), if that resolution has been improperly passed or published. In other words, the municipality is given power to go bach and pide up the thread of its proceedings where ■it has been broleen, and to proceed to the ultimate end of the collection ■of the assessment; but it is not authorized to begin in the middle without •connecting the line of proceedings with the property owner.”
We are satisfied that the procedure in the case at bar is for the city council to “pick up the thread of its proceedings where broken,” estab
We are not unmindful of the Oregon Case of Birnie v. La Grande, 18 Or. 531, 153 Pac. 415, in which it was held that “where a street-improvement assessment was invalid'because the notice thereof to property owners, made a jurisdictional prerequisite by the charter, was defective, no subsequent reassessment of the cost of the improvement under the provisions of the charter was valid. Since the giving of notice in the terms described by the charter, which was the organic law under which the city acted, was a condition precedent to securing jurisdiction to make an improvement and to cure the invalidity in the proceedings, it was necessary that they be had de novo with valid notice and compliance with the charter in all respects to give jurisdiction,” and that the charter contemplated work to be done in the future, and, if the improvement had been already made, it was impossible to make a reassessment in Wee manner for the same purpose.
We realize also the pertinence of the following language used in the case of Murray v. La Grande, 76 Or. 598, 149 Pac. 1020;
“The quasi process in the present instance, by which alone the city could acquire jurisdiction, is the notice described in the quoted provisions of the charter. It is required, among other things, that there shall be contained therein a description of the improvement proposed, the boundaries of the district to be affected or benefited thereby, and the estimated cost thereof. This language plainly contemplates a work to be done in the future. It had no reference to past improvements. It manifestly gives to the property holder who is to be assessed the right to be heard in advance, not only as to the amount of the levy, but also as to the kind of improvement. It is conceded by the answer that this was not done in the first instance. In respect to the final effort to tax the realty of the plaintiffs, the improvement had already been made, whatever its kind or nature; the question about the sort to be adopted had been irrevocably decided; the payment, whether good
“The case presented by the defendants is one in which they have decided beforehand against the taxpayer in one of the most important particulars of the assessment scheme. Jurisdictional power cannot, like
We believe, however, that the question is, after all, of legislative intention and of legislative power. We believe, indeed, that the legislature could, in the first instance, have provided for the creation of public improvements by the municipality, and then have provided for the payment for the same by special assessment; provided that their reasonable necessity was shown and the property owners were in fact benefited and had an opportunity to be heard as to the amount of their .assessment, and that such assessment was not in excess of the benefit. This was held in the case of Wiese v. South Omaha, supra. This, in fact, is what § 3713 of the Compiled Laws of 1913 of the state of North Dakota authorizes. It, in fact, provides for the assessment to be made “whether such improvement was made under this, article or under any law.” It uses the words, “was made,” and not, “is made,” or, “is to be made.” The intention is clear, and we believe that .the power ■exists.
There is still another question to be determined, and that is whether the relief prayed for should be confined merely to the plaintiff’s lots, or whether the lots of others similarly situated should also be affected. The action was originally instituted by Alfred M. Kvello “on behalf ■of himself and all others similarly situated who would come in and •contribute to the expense of the action;” and in the complaint was ■contained a full list of all of the other lots affected, a reference thereto throughout, and a prayer for an injunction “from spreading such assessment upon the records of said city or county, and that the treasurer be enjoined from collecting or attempting to collect any of such assessment ,so attempted to be levied upon the said lots or parcels of land so specified in exhibit A.” It is true that later on and on motion of plaintiff, but without any objection on the part of the defendant, the words, “who will come in and contribute to the expense of this action,” were stricken out. This, however, was mere generosity on the part of the
There is no doubt that this can be done, and that the judgment can be made applicable to and be taken advantage of by such persons. •Section 7406 of the Compiled Laws of 1913 provides: “When the question is one of a common or general interest of many person's, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” This is merely a statement of the general rule, and the general rule is applicable to controversies over special assessments. See Hamilton, Taxn. by Special Assessments, § 805; Phillips, Code PI. § 458; Upington v. Oviatt, 24 Ohio St. 232; 15 Enc. Pl. & Pr. 627; 22 Cyc. 912; 28 Cyc. 1188.
In the case of Keese v. Denver, 10 Colo. 112, 15 Pac. 825, the improvement, a sewer, had been entirely completed at the time of the bringing of the action; and not only was it urged that the plaintiffs were es-topped from questioning the legality of the assessment because they allowed the work to progress to completion without making any objection, but a demurrer was interposed to the complaint on the ground that “there are seven plaintiffs and each has a separate interest in distinct portions of said real estate, and there is no joint interest of any of the plaintiffs in any portion of such real estate, and the same relief is asked for all other persons similarly situated and interested as for themselves.” The court, however, said: “The ruling of the •court below upon the demurrer to the complaint being favorable to .appellants, their appeal does not necessarily require an expression of ■opinion upon that ruling; but as counsel for both appellants and appellees have argued the questions presented by the demurrer at considerable length, we will, without going into a review of the arguments made and authorities relied upon, state our conclusions upon the questions presented. The two grounds of the demurrer may be treated unitedly. Mr. Pomeroy, in his able treatise on Equity Jurisprudence, has collated all the important cases upon the question of equity jurisdiction in cases of this character, and, after an exhaustive review and ■comparison of the cases, has expressed his conclusions, and from which we quote the following: ‘Under the greatest diversity of circumstances,
It would seem, however, that the decree or judgment could hardly be ''that the treasurer be enjoined from collecting or attempting to collect any of such assessment so attempted to be levied upon said lots or parcels of land so specified in exhibit A,” as is prayed for in the complaint, but should rather be that the treasurer be enjoined from collecting or attempting to collect any of such assessment so attempted to be levied upon said lots or parcels of land so specified in exhibit A and the owners of which come in and accept the benefit of the judgment.
It seems, indeed, quite obvious that a person cannot be compelled to-be a plaintiff in a lawsuit; that is to say, to be made an objector to a special assessment without his consent, and that this consent should in some way or other be obtained, and this even though the party is. specifically named and identified in the complaint. The same rule in this respect, we believe, applies to parties who are specifically named, as to those who are only generally referred to. They should come in. in some way and accept the benefit of the judgment or claim under it-
The judgment of the District Court is reversed and the cause is remanded, with directions to enter judgment for the plaintiff as prayed for in the complaint, and also for such of the other parties whose names and property are mentioned in the said complaint, and who shall malee application to the court to come under the judgment, and who shall prove themselves entitled thereto. This decree or judgment, however, will be without prejudice to a reassessment under the provisions of § 3713 of the Compiled Laws of 1913, and as outlined in this opinion.