156 N.W. 552 | N.D. | 1916
Fargo, acting by its city council, has levied special assessments aggregating $8,099 against Island park within said city for paving of streets bordering upon Island park. Part of the cost of the paving has been thus assessed against private property owners and the balance against the city park. Fargo had adopted a park district system and with it a park commission. That commission and the individual members thereof, these defendants, have at all times refused to recognize the jurisdiction of the city or its council or special assessment commission acting under it, to levy or enforce these special assessments against Island park. Thereupon they were mandamused to include instalments of special assessments due and falling due, and to thus make provision in 1914 for the payment of past, present, and future instalments of these special assessments against the park. Upon trial a peremptory writ was awarded directing them to levy a tax upon the park district for said purposes. The appeal is from the judgment thereon.
Logically, the first question presented is concerning the exercise of the power of special assessment so far as a decision thereon is necessary. Defendants challenge the jurisdiction of the city commission to act and claim the right themselves, and that under the principle that there cannot be at the same time within the same territory two distinct municipal corporations exercising the same powers, jurisdiction, and privileges over the same subject-matter, the city council was without jurisdiction to act, and was but invading the province of the park commission in so doing. A careful investigation of statutes and authority sustains their contention.
Referring now to the assessment for paving of the street alongside of this park. The power to do this paving is conferred in express terms upon the park commission, and by necessary inference the power of the city council to pave said street is thereby excluded and withdrawn.,
Statutes closely similar to ours upon the subject of parks and park commissions do not seem to be plentiful. Illinois, New York, Michigan, Ohio, and probably other states have such. Doubtless our statute is patterned after those of Illinois, that state having most comprehensive legislation on the subject and being most closely analogous to ours. Before the adoption of the first legislation by this state creating a park commission, Chicago had been governed for years in such respects by a commission the powers of which had been defined as exclusive as against the general governing body of the city. West Chicago Park Comrs. v. Chicago, 152 Ill. 392, 38 N. E. 697. These statutes had been passed upon in different phases in Chicago v. Carpenter, 201 Ill. 402, 66 N. E. 362; Cicero Lumber Co. v. Cicero, 176 Ill. 9, 42 L.R.A. 696, 68 Am. St. Rep. 155, 51 N. E. 758; Aldis v. South Park Comrs. 171 Ill. 424, 49 N. E. 565; West Chicago Park Comrs. v. Sweet, 167 Ill. 326, 47 N. E. 728; West Chicago Park Comrs. v. McMullen, 134 Ill. 170, 10 L.R.A. 215, 25 N. E. 676; Chicago & N. W. R. Co. v. West Chicago Park Comrs. 151 Ill. 204, 25 L.R.A. 300, 37 N. E. 1079; McCormick v. South Park Comrs. 150 Ill. 516, 37 N. E. 1075; Thorn v. West Chicago Park Comrs. 130 Ill. 595, 22 N. E. 520; People ex rel. Bransome v. Walsh, 96 Ill. 232, 36 Am. Rep. 135; West Chicago Park Comrs. v. Farber, 171 Ill. 146, 49 N. E. 427. For the most recent cases see Chicago City R. Co. v. South Park Comrs. 257 Ill. 602, 101 N. E. 201, and Van Nada v. Goedde, 263 Ill. 105, 104 N. E. 1072. These authorities sustain this opinion.
That this decision may not be misleading it should be observed that
Respondent has cited § 3702, Comp. Laws 1913 (§ 2776, Rev. Codes 1905), granting cities general power, among others, to grade and pave streets, and contends that since said power has not been limited, although the various acts creating the park board have subsequently been enacted, that it should be held as controlling and granting the right to the city council in all cases to pave and pay therefor by special assessments. Instead, this power granted the city applies as to all cities not adopting park district control. It is a general statute. Those cities having park districts constitute exceptions thereto. To them the general statute has no application further than a general grant of power to the city, while the power itself is exercised by the park commission, instead of through channels that would carry it into effect in cities not having a park district system. And as to the term “way” respondent urges that exercise of sole and exclusive power having been authorized by the park commission over ways without special mention of streets in the first subdivision of § 4059, that by a necessary inference such authority over streets has been reserved to the governing body of the city. Eor reasons heretofore stated the statute will not bear that narrow interpretation. Besides, respondent overlooks the fact that “boulevards and ways” are used together, and a street may be either and either or both may be streets, according as the context requires interpretation. Chicago City R. Co. v. South Park Comrs. supra.
The paving should have been authorized by and constructed under the jurisdiction of the park commission, the power to levy the assessment therefor. However,- acting under a misapprehension of law, the city 'council have attempted to authorize the paving, and the same has been put in and undoubtedly constitutes in fact an improvement, and one that would have been within the power of the park commission to have authorized and constructed. Apparently private property owners have acquiesced in what has been done, and like the city have secured benefits. The park commission possess only a public interest in the matter. They act only on behalf of the city and as its agent. As the park will not necessarily be assessed, the park commission has no such pecuniary interest as would give it standing to oppose, on behalf of the public, the improvement to the city if it is such in fact. In equity no sound reason exists why the park commission should not adopt the benefits, and validate as far as possible the irregular, and perhaps void, acts of the city council. The park commission may therefore proceed with their duty in the premises. It may declare the necessity for the improvement to have existed, ascertain the cost thereof and the benefits therefrom, and, using the proper agencies and officials, proceed to specially assess the property specially benefited within its park district the same as though it had originally authorized the work. Of course it will afford opportunity to all aggrieved property owners to be heard before confirming any assessment it may levy. Sections 3711-3714, Oomp. Laws 1913, authorize the procedure indicated to the end that the property specially benefited by this public improvement shall not be permitted to escape payment of its proportionate share of benefits received. It will be assumed .that the park commission will do its full duty, and no .writ will issue, and the judgment appealed from will be set aside. As but city officials are involved, and the question has been only one of