184 P. 799 | Utah | 1919
This is a proceeding for a writ of prohibition restraining and prohibiting Midvale City, a municipal corporation of Salt Lake county, Utah, from entering into a contract with said county for paving a certain street within the limits of said city. It is stipulated by the parties that the facts alleged in the answer of the defendants are true and constitute all the facts pertaining to the matter in controversy. The answer, in substance, alleges that defendant city is a municipal corporation of the third class; that the other defendant, John Aylett, is its duly elected and qualified mayor; that plaintiff is a resident and taxpayer of said city, both as to real and personal property; that Center street is a public thoroughfare running east and west through said city, and from the Oregon Short Line Railroad on the east to Jordan river on the west the street is wholly within said city, and between said points is a distance of 7,920 feet; that defendant, if not restrained, will enter into a contract with said county whereby said city and county will jointly construct a bituminous pavement eighteen feet wide along and upon said Center street between said points and throughout the entire distance above named, at a total expense of $42,554.55; that the city’s portion of
At the close of the oral argument the court was convinced, without further investigation, that the writ prayed for should be denied, and so ordered immediately, in order that the de
Plaintiff contends that notwithstanding the provisións of Comp. Laws Utah 1917, section 570x8, which confers upon cities, among other things, the power to pave streets within their limits, and the provisions of section 671, subd. 3, which authorizes cities to levy a tax annually of not to exceed two mills on the dollar to open, improve, and repair streets, still the cities are without power to pay for the pavement of said streets otherwise than by local assessment upon property abutting upon the streets to be improved. In this contention plaintiff relies upon the provisions of said Comp. Laws, sections 673, 674, and 675, all of which sections relate to special taxes levied upon the property of abutting owners in paving districts laid out with the view to improvements by the method of local assessment. Sections 674 and 675, specially relied on by plaintiff, read as follows:
"674. To defray or cause to tie defrayed the cost and expense of such improvements or any of them, the city council shall have power and authority to levy and collect special taxes and assessments upon the blocks, lots, or parts thereof, and pieces of ground adjacent to or abutting upon the street, avenue, alley, or sidewalk thus in whole or in part opened, widened, curbed and guttered, graded, parked, extended, constructed, or otherwise improved or repaired, or which may he especially benefited by any of said improvements; provided, that the above provisions shall not apply to ordinary repairs of streets or alleys, and that one-half of the expense of bringing streets, avenues, alleys or parts thereof to the established grade shall be paid out of the general fund of the city; and such council shall have power to pave, repave, or macadamize any street or alley or part thereof in the city, and for that purpose to create suitable paving districts, which shall be consecutively numbered, such work to be done under contract.
“675. The cost of paving, macadamizing, or repaving of the streets and alleys within any paving district, except the intersection of streets and space opposite alleys within such district, shall be assessed upon the lots and lands abutting upon the streets and alleys in such district, in proportion to the square feet, or feet front, or both, so abutting upon such streets and alleys.”
The matter in controversy turns entirely upon the question as to whether the method provided by the sections just quoted
It is conceded by the plaintiff that, were it not for the provisions contained in the sections quoted, the other sections to which we have referred confer ample authority upon the city to pay for the improvement out of the general fund. In ojther words, it is admitted that section 570x8, supra, which confers power to pave, and section 671, supra, which authorizes the levy of a tax annually to open, improve, and repair, would be sufficient to authorize payment out of the general fund for the improvement in question, were it not for the provisions contained in the sections quoted.
Plaintiff’s contention in the concrete is best explained by quoting literally from his able brief in this case. After quoting the language of section 674, supra, he says:
"While the words ‘shall have power and authority to levy and collect special taxes and assessments,’ as used In section 674, would seem to he merely the grant of an additional power, yet the subsequent provisions of the statute that special assessments shall not apply to ordinary repairs, or one-half of the expense of bringing streets to grade, indicates that it was the intention of the Legislature to limit the authority of the city councils in the making of local improvements, and paying for the same, doing so by special taxes and assessments upon the property especially benefited thereby* The express mention that special assessments shall not be levied to make ordinary repairs, or for paying one-half of the expense for bringing streets to grade and thé provision that ordinary repairs, or one-half of such expense to bring streets*226 to grade, shall be paid out of the general fund, implies that all other improvements of a local nature, especially benefiting cert'ain property, shall be paid for by assessments upon the property especially benefited.”
It will be seen from tbe foregoing excerpt that plaintiff relies upon the maxim, “Expressio unius est exclusio alterius.” His argument proceeds:
“ * * * .The express mention that ordinary repairs and one-half the expense of bringing streets to grade, shall be paid out of the general fund, is an exclusion of all other improvements mentioned in that particular section of the statute, and a limitation upon the authority of the city council, where the improvement is a local one, to the defraying of the expense by special taxes or assessments.”
The maxim relied on is merely a technical rule of construction. It cannot'be used to thwart or subvert the obvious intention of the Legislature. It should only be resorted to when the intention of the Legislature is not otherwise plainly expressed. No reason is stated by plaintiff, nor does any appear to the mind of the court, why all of the provisions
Counsel for plaintiff has industriously collated and called to our attention several cases bearing in a greater or less degree upon the matter in controversy. As sustaining his contention, however, they are far from satisfactory. They are nearly all easily distinguished from the case at bar. The distinction will readily appear upon casual examination, and therefore the cases need not be considered in detail. Such as are not distinguishable, we believe, are contrary not only to reason but to the great weight of authority. We cite them, however, for the benefit of those whom it may concern: Pettit v. Duke, 10 Utah, 311, at page 317, 37 Pac. 568; Township of Dubuque v. City of Dubuque, 7 Iowa, 262; Bryan v. Sundberg, 5 Tex. 418; Scott v. Ford, 52 Or. 288, 97 Pac. 99; N. Y. Central R., etc., Co. v. Reusens, 151 App. Div. 458, 135 N. Y. Supp. 919; Murtauge v. Patterson, 45 N. J. Law, 267; Findlay v. Howe, 13 Wash. 236, 43 Pac. 28; Bank of Lansing v. Lansing, 25 Mich. 207; Zottman v. San Francisco, 20 Cal. 97, 81 Am. Dec. 96; Johnson v. Common Council, 16 Ind. 227.
The defendant city contends that the power to levy local assessments upon the abutting owners for the improvement of streets is merely an additional power and by
“Usually when a municipal corporation has power to make or provide for the making of improvements it has power to make arrangements to meet the expense thereof. The modé of paying for public improvements is sometimes prescribed by statute or charter, but in the absence of express direction the method to be adopted is within the discretion of the proper authorities. A general power authorizing the paying for public improvements by special assessments is usually construed as not affecting the power of the municipal corporation to make■ improvements ■and pay therefor out of the general revenue. However, the rule is different under authority to make the improvement only at the expense of the property abutting thereon.” (Italics ours.)
In 28 Cyc. at page 969, we find the following:
“A municipality, subject to the ordinary legislative limitations as to expenditures and indebtedness, may improve its streets and pay for the same out of its general funds; and a charter or statutory provision allowing special assessments does not necessarily deprive the city of this power; but in the absence of express direction, it leaves to the discretion of the municipal authorities the choice of modes for defraying the expenses.”
Defendant also cites the following cases, many of which are decisive of the question here presented: Commonwealth v. George, 148 Pa. 463, 24 Atl. 59, 61; Garden City v. Trigg, 57 Kan. 632, 47 Pac. 524; Atchison v. Len, 43 Kan. 138, 29 Pac. 467; Tappan v. Long Branch, etc., 59 N. J. Law, 371, 35 Atl. 1070; City of Evansville v. Summers, 108 Ind. 189, 9 N. E. 81; Memphis v. Brown, 20 Wall. 289, 22 L. Ed. 264; Soule v. City of Seattle, 6 Wash. 315, 33 Pac. 384; Pine Tree Lumber Co. v. City of Fargo, 112 N. D. 360, 96 N. W. 357; Clark v. City of Des Moines, 19 Iowa, 221, 87 Am. Dec. 423; State ex rel. v. City of Ely, 129 Minn. 40, 151 N. W. 545, Ann. Cas. 1916B, 189; Barber Asphalt Pav. Co. v. City of Harrisburg, 64 Fed. 283, 12 C. C. A. 100, 29 L. R. A. 401; District of Columbia v. Lyon, 161 U. S. 200, 16 Sup. Ct. 450, 40 L.
The cases speak for themselves, and this opinion would not be strengthened by onr attempting an elaborate review.
From the showing made by the admitted facts, plaintiff, as a taxpayer of the city would have little or nothing to gain even if we were permitted to consider the case from the. standpoint of what would be least burdensome to him. It is admitted that, if the agreement with the county is forbidden or restrained and the improvement is not made as contemplated, the city will be compelled, at its own expense, to construct the bridge across the Jordan river at a cost of nearly $11,000, and make immediate temporary repairs to the street at a cost of nearly $5,000, besides the annual cost of sprinkling, to the extent of several hundred dollars. These sums the city has the undoubted right to expend, and it is admitted that it will expend them unless the agreement with the county fór the permanent improvement is permitted. It is a simple matter of addition to demonstrate that these sums aggregate approximately the same amount as the city will have to pay for the permanent improvement sought by this action to be restrained. These considerations have no logical bearing upon the question presented here, but they at least serve to emphasize the fact that there is no question of hardship to the plaintiff involved.
For the reasons stated, it is ordered that the temporary writ be quashed and a permanent writ denied. Defendant to recover costs.