Beck v. Holland

29 Mont. 234 | Mont. | 1903

MB. JUSTICE. HOLLOWAY,,

after stating the case, delivered tbe opinion of the court.

Appellants urge in this court: (1) That the tax was prematurely certified to the county treasurer; (2.) that the omission of certain property, which it is alleged was benefited by the improvement, vitiates, the entire assessment; (3) that the adoption of the frontage' rule of valuation renders the assessment void; and (4) that the assessment is void for the reason that the city did not own the alleywiay at the time the assessment ■was made.

1. Appellants concede that the validity of the assessment is to be determined by reference to the law in force at the time the improvement was ordered, and this admission disposes of the first contention above; for whether or not the assessment was prematurely certified to the county officials depends upon whether the Act of the Third legislative assembly approved March 7, 1893 (Session Laws 1893, p. 130), the Act of the Sixteenth territorial legislative assembly approved March 14, 1889 (Session Laws 1889, p. 185), or Chapter 22, Fifth Division, Compiled Statutes of 1887, shall govern; and this depends upon the date when the alley was ordered opened, which date the complaint fails to disclose. Not being informed when the improvement was ordered; we are unable to. determine what law was in force when the same was done, and therefore unable to say whether or not the assessment was prematurely certified. In the absence of any showing to the contrary^ it must be presumed that the city officials regularly performed their duty. (Subdivision 15, Section 3266, Code of Civil Procedure.)

2. It is next contended that the city omitted to assess other property which was situated in the same district and locality, and which was benefited by the improvement.

These special assessments are commonly made according to some standard fixed by the legislature — 'as according to the frontage of the property, its value, its superficial area, or according to the special benefits received by the property affected. The last mile was in force in this state at the time this action was commenced and for many years before. When the method is prescribed, the levy must embrace all the property within the district to which the principle of the assessment applies. (Cooley on Taxation, 1216.) In other words, if the statute or city charter under which the council is operating fixes the limits1 of a district as of all property abutting on the street improved, then no such abutting property can be omitted without invalidating the levy; or, if the statute directs the city council to impose the tax upon such property as the council shall determine is specifically benefited by the improvement, then, in that event, the council having determined what property is specifically benefited, that particular property constitutes the improvement district for that purpose, and the council is not warranted in omitting from the assessment, any of such property.

The complaint in this action does not allege that the council omitted any property which it (the .council) had determined was benefited by the improvement — that is, from the improvement district, which it had created by the exercise of its judgment and discretion; but does allege, in effect, that the district so constituted does not -include other parcels of land which the plaintiffs., if acting as the city council, would have-deemed benefited by the opening of the alley way. ’

It may be that the city council erred in its judgment in determining what property was and what was not benefited by the improvement; but, the legislature having designated the council as the proper body to make the assessment, and having clothed it with a discretion in the matter, and having authorized it to act upon its own judgment — not upon the judgment of some one else — its determination must be conclusive in the absence of allegations of fraud or suck gross mistakes as to preclude tbe exercise of sound judgment. Tliese principies have been so clearly established in this state as to preclude further discussion. (Danforth v. Livingston, 23 Mont. 558, 59 Pac. 916; Cooley on Taxation, 1180, 1260.)

The principal case relied upon by the appellants (People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677) is not in conflict with the views herein expressed. In that case the charter of Sacralmento required the expense of street improvements to be assessed against abutting property. The board of trustees (city council), in making an assessment for a certain street improvement, omitted certain property which, under the very terms of the charter, was liable for a portion of the cost of the improvement, and for that reason the assessment was held void.

3. Complaint is made that the city council adopted the frontage rule in determining the valuation of the property, and that such rule is inconsistent with our constitutional requirement that all property shall be taxed at a uniforim rate. (Article XII.)

Elven assuming that the constitutional provisions referred to apply to' special assessments for street improvements (and this we do> not decide), still the complaint nowhere alleges as a fact that the benefit conferred on plaintiffs.’ property does not bear the same ratio to the total benefit conferred, as. the tax assessed against their property bears. to> the total tax. Section 428, Chapter 22, Fifth Division, Compiled Statutes of Montana, 1887, provides: “F'or the purpose of payment of expenses> including all damages and costs incurred in taking of private property, and of making any improvement mentioned in the preceding sections, the city council may by resolution levy and assess the whole or any part not less than half of such expenses as a tax upon such property as they shall deterjmine is specifically benefited'thereby.” This provision continued in force until the time of filing this complaint. (Sess. Laws 1889, p: 185; Sess. Laws 1893, p. 130.) If the city council, after considering the matter fully, determined that the respective pieces of property mentioned in plaintiffs’ complaint were specifically benefited by tbe improvement, and- assessed against tbem tbeir respective portions of tbe total tax to be raised, tbe mere fact tbat tbe council made use of tbe frontage rule in reaching sucb conclusion will not vitiate tbe assessment. While there is some conflict in tbe authorities, this is unquestionably tbe better rule, andi tbe one supported by tbe decided weight of authority. (Cooley on Taxation, 1221; President, etc. of D. & H. Canal Co. v. City of Buffalo, 39 App. Div. 333, 56 N. Y. Supp. 976; New Whatcom v. Bellingham Bay Improvement Co., 16 Wash. 131, 47 Pac. 236.)

4. Finally it is contended tbat tbe levy is void for tbe rea!-. son tbat tbe city bad no title to tbe alleyway at tbe date of tbe assessment. But these plaintiffs make no claim) tbat they, or any of tbem, own tbe ground sought to be used as such- alley, or bad any interest whatever in it, and, as strangers to tbe title, they will not be beard to question tbe title or right of possession of tbe city to tbe property. We are of tbe opinion tbat tbe complaint does not state a cause of action, and tbat tbe demurrer was properly sustained.

Tbe judgment is affirmed.

Affirmed. .

Rehearing denied December 24, 1903.