Armstrong v. Ogden City
12 Utah 476
Utah
1895
Check Treatment
Rolapp, J.

Tbis action was originally brought to enjoin tbe levying-of a special assessment to pay tbe expenses of paving a portion 'of Twenty-Fifth street, in Ogden City, under tbe name of .“Paving District No. 2.” A demurrer to tbe complaint was filed in tbe court below, and sustained. *490An appeal was taken to this court, and tbe judgment of the lower court reversed. Armstrong v. Ogden City, 9 Utah, 255, 34 Pac. 53. Thereupon a supplemental complaint was filed by the plaintiffs — for themselves, and on hehalf of certain other parties similarly situated — to enjoin the further collection of the tax, and also to recover judgment against the city for the amount of taxes paid by them under protest. The lower court found that the assessment was invalid, because Ogden City never obtained jurisdiction to make the improvements contemplated, and perpetually enjoined the defendants from all proceedings under the ordinance creating paving district No. 2, and levying the tax for the improvement specified, and also directing that the plaintiffs recover the amounts paid by them to the city under protest. A motion for a new trial was made and denied, and the appeal is taken both from judgment and from the order denying a new trial.

The facts are that on March 7, 1892, the city council adopted and published a notice of intention, in which they designated the 29 th day of March; 1892, at 10 o'clock a. m., as the time to hear objections in writing from any and all persons interested in said local assessments. Before the appointed time, at least 2,315 front feet abutting upon the street to be paved protested against the assessments. The city council did not act upon the protest at the time appointed, but adjourned from time to time until April 4, 1892. It then appeared that in the „ meantime owners theretofore protesting had withdrawn from such protest sufficient front feet to make the protest probably contain less than one-half of the entire frontage in the said paving district. The entire frontage in the paving district was' 3,960 feet, but this computation included 660 feet owned by the city and used for city-hall purposes. The city council thereupon, without publishing a new notice of intention, proceeded to change the paving from macadamiz*491ing, as specified in tbe notice, to asphaltum and sandstone, and confined the competition to do the work to residents of the city. On March 22, 1893, — more than a year after the publication of the notice of intention, — the city council adopted an ordinance creating paving district No. 2. The improvements were proceeded with, and in December, 1893, the plaintiffs paid the tax levied against their property, under protest.

This court has already held that the original notice of intention was sufficient, and that, if a proper protest was filed, no jurisdiction was ever obtained by the city council of Ogden City to proceed with the assessment. Armstrong v. Ogden City, 9 Utah 255, 34 Pac. 53. The original notice of intention provided as follows: “ The boundaries of the district to be affected and benefited are lines running 150 feet back, and parallel with the outer lines of each side of the street on each and every block, and for the full length therein.” The street referred to is described in the notice as “25 th street from the west line of Washington avenue to the west line of Wall avenue.” The statute requiring the .notice of intention, and prescribing the statements it shall contain where local improvements in a city are proposed, is as follows: “Sec. 13. In all cases before the levy of any taxes for any improvements provided for in this act the city council shall give notice of intention to levy said taxes naming the purpose for the which the taxes are to be levied, which notice shall be published at least twenty days in a newspaper published within such city. Such notice shall describe the improvements so proposed, the boundaries of .the district to be affected or benefited by such improvements; the estimated cost of such improvements and designate the time set for such hearing. If at or before the time fixed, written objections to such inprovements signed by the owners of one-half the front feet abutting upon that *492portion of the street, lane avenne or alley to be so improved, be not filed with the recorder, the council shall be deemed to have acquired jurisdiction to order the making of such improvements.” Laws 1890, p. 64.

It is not claimed by appellants that, at the time appointed in the notice of intention to hear these objections, a majority of the front feet abutting upon the street in question had not filed such written objections; but appellants contend that the publication of the notice of intention gave the city council jurisdiction, and that the attempt to dislodge that jurisdiction by a protest was a matter of judicial inquiry upon the part of the city council, and the fact of their having determined that a majority of the front feet abutting had not properly protested-precluded any further attack upon that decision. This reasoning is absolutely fallacious. The statute plainly provides that, if sufficient objections' are not filed within the time required, “the city council shall be deemed to have acquired jurisdiction;” and, of course, by rule of statutory construction, it provides .that, if a sufficient protest has been filed, they fail to acquire jurisdiction, notwithstanding any decision the city council might arrive at to the contrary. Two essential facts were necessary before the city council could acquire jurisdiction: First, that a proper and legal notice of intention had been published; and,' second, that more than one-half of the front feet abutting upon the street to be improved had failed to object within the time specified. If these two requirements did not exist, no owner of property within the proposed paving district was concluded by the decision of the city council. Zeigler v. Hopkins, 117 U. S. 683, 6 Sup. Ct. 919; Mulligan v. Smith, 59 Cal. 206.

But appellants contend that, even if the decision of the city council was not conclusive, it was a correct finding of fact. They admit that at the time appointed more *493than one-half of the front feet abutting upon the street had not objected, but contend that the owners of a sufficient number of front feet withdrew their protest, and that, therefore, the city council acquired jurisdiction to proceed with the improvement. The statute above referred to sufficiently answers this contention. It expressly denies to the city council jurisdiction to proceed with the improvements,' if, at the time fixed to hear objections, a sufficient remonstrance is presented. At that time such a remonstrance was presented. The city council was thereby wholly deprived of power to proceed. No power could be •subsequently acquired in that proceeding. A new proceeding might be instituted, and, after duo notice of intention, new power could be obtained. The parties protesting and not withdrawing acquired a right to rely upon the statute existing at the time appointed to hear objections, and were entitled to notice of any action affecting their interests. It may also be that others who desired to object refrained from so doing upon ascertaining that a sufficient protest was already filed. Jersey City Brewing Co. v. Jersey City, 42 N. J. Law, 575; Vanderbeck v. Jersey City, 44 N. J. Law, 626. Supposing that, at the time appointed to hear objections, less than one-half of the frontage abutting on the street had protested, would it then have been seriously contended that thereafter, and before the city council acted upon the protest, enough more protests could have been filed to defeat the improvements? If that could not have been done, clearly, the reverse could not be done, either.

But, even granting that the contentions of appellants were either correct in law or true in fact, yet we thjDk that the city council failed to acquire jurisdiction, because, as a matter of fact, more than one-half of the front feet abutting upon the street properly protested, at all events. The total frontage of the district was 3,960 feet. The *494lowest number protesting, after deducting withdrawals,' as claimed by appellant, was 1,878-J feet. But included in the 3,960 feet were 660 feet owned by the city, and used for city hall purposes, which the city council claimed the right to count in favor of the improving, notwithstanding it was excluded in the paving ordinance from the property upon which the paving tax was levied, and notwithstanding the entire estimated expense of $40,000 for the improvement was levied upon the remaining 3,300 feet, by assessing $12 against each of these last-named front feet. If appellants5 position were right, the statute permitting property owners in local assessment districts to vote for or against any proposed improvement would become entirely inoperative; at all events, so far as property owners living in close proximity to public property is concerned. If, for instance, the city council should create a paving district out of the four portions of streets that surround a square used exclusively for city purposes, it would only be necessary to secure the' consent of the owner of a single front foot of the property abutting upon the opposite side of the street from the public square to abstain from protesting, and the remaining frontage would not only be powerless to prevent the improvement, but would be compelled to pay practically the entire expenses.

Such a proceeding would only be the natural outgrowth of the actions exhibited by the appellants in this case, and would produce great injustice to property owners subjected thereto. So far as proceeding with the improvement or assisting in acquiring jurisdiction are concerned, we have been unable to find any case where public property situated within the confines of a local improvement district has been permitted to affect the result, either one way or the other; and we think that the establishment of such a rule would not only be wrong in principle and wrong in theory, but it would also be contrary to the spirit *495and intention of the statutes providing for special improvement assessments.

It is also insisted upon tbe part of the appellants that respondents cannot recover the taxes paid by them under protest, because section 1, p. 58, Sess. Laws 1890, provides that “any party feeling aggrieved by any such special tax or assessment or proceeding, may pay the said special taxes assessed or levied upon his, her or its property or such installments thereof as may be due, at any time before the same shall become delinquent, under protest, and with notice in -writing to the city collector that he intends to sue to recover the same, which notice shall particularly state the alleged grievance and grounds thereof, whereupon such party shall have the right to bring a civil action within sixty days thereafter, and not later, to recover so much of the special tax as he shall show to be illegal, inequitable and unjust, the costs to follow the judgment to be apportioned by the court as may seem proper, which remedy shall be exclusive.”

In this case respondents did not give the notice required, nor did they commence action within 60 days after the taxes became delinquent. But this statute did not contemplate a case where the whole initiatory proceedings were absolutely void, and where no jurisdiction had ever been acquired to commence the improvements or levy the tax. This appears more clearly when the above provision is read in conjunction with the provision in the same section immediately preceding what we -have just quoted. That part of the section reads as follows: “No such special tax shall be declared void, nor shall any assessment or part thereof be set aside in consequence of any error or irregularity committed or appearing in any of the proceedings under this act.” In other words, if, after having acquired jurisdiction, the city council should have erroneously levied a larger tax than was necessary to pay for the im*496provement, or if the city council should irregularly have assessed more property against a person than he owned, then, of course, the party injured would be compelled to' remedy such error or irregularity by giving a proper notice and commencing action as in this section of the statute provided. But it cannot be maintained that where the tax was wholly void and illegal, as in this ease, the parties injured were compelled to use this special and summary remedy, when the whole field of equitable relief was open to them. We think the proper remedy was employed in this action.

The record discloses many other grounds making the attempted improvement proceedings void and illegal, but it is unnecessary to discuss' them in detail, as we'deem the foregoing reasons decisive of the case. The judgment of the lower court is affirmed.

Merritt, C. J., and Bartoh, J., concur.