100 P.2d 427 | Wyo. | 1940
This is a mandamus action on the relation of holders of special assessment bonds to compel the Mayor and Councilmen of the City of Casper to make a reassessment to cover a deficiency in the original assessment for payment of the bonds. After a trial, a peremptory writ was issued as prayed in the petition, and defendants prosecute error. Their contention is that they do not now have power to make a reassessment.
The improvement was paving. The district was created, assessment made, work completed and bonds issued under an act of 1915 which appears as sections 22-1501, et seq., R.S. 1931. The council is authorized, and by mandatory language directed, to make reassessments whenever "the amount assessed shall not be sufficient." Section 22-1542. Defendants rely on a limitation placed on this authority by section 22-1545, which reads as follows:
"No city or town shall have jurisdiction to proceed with any re-assessment or supplemental assessment unless the ordinance ordering the same shall be passed by the council or other legislative body of such city or town within ten years from and after the time the *432 original assessment for any such improvement was finally held to be invalid, insufficient or for any cause set aside, in whole or in part, held void or its enforcement denied directly or indirectly by the courts; or, in the case of supplemental assessments, from and after the time that it was finally determined that the total amount of the valid assessments levied and assessed on account of any such improvement was insufficient to pay the whole or that portion of the cost and expense thereof to be paid by special assessment."
Defendants cite authorities holding that an action for mandamus to compel a reassessment is barred if not commenced within the period during which the assessing body is authorized to reassess. See Frye v. Mt. Vernon,
There is here an apparent mistake in the reference to "dismissal of said action." The word "action" should read "appeal." The action was not dismissed but, on the other hand, the judgment therein "became binding and final" by the settlement that included a dismissal of the appeal. As the parties have stipulated that the judgment of May 17, 1927, became final on April 18, 1928, it is perhaps unnecessary for us to say that we agree that the stated conclusion follows from the stipulated facts theretofore recited. The controversy between the railway company and the city was not terminated until the settlement was perfected, and it was not until then that it was determined what the deficiency was. The petition in the mandamus action was filed February 9, 1937, and the alternative writ issued May 28, 1937, and it is not necessary to decide on which of these dates the action was commenced as the later is well within the ten years after April 18, 1928.
At some time not definitely shown by the record, relators commenced an action in the United States district court, seeking to obtain a general judgment against the city for the amount of the deficiency in the assessment. Their right to that relief was denied on the ground that their remedy was mandamus to compel reassessment. Blanchar v. City of Casper,
Defendants contend that, because ten years have now elapsed, the city has lost jurisdiction to make a reassessment in spite of the written demand and the suit for mandamus within the time. This would be contrary to the general rule that a pending action in mandamus preserves the right until final judgment. People ex rel. Walter v. Kaplan,
Defendants cite cases holding that the right to levy special assessments exists only by virtue of the statute, and must be exercised within the time as limited by the statute. But in no case brought to our attention has it been held that the power to make an assessment is lost by expiration of time during the pendency of an action to compel the exercise of the power in performance of a statutory duty for the protection of bondholders. *435
Defendants rely on Brown v. City of Portland,
Shaw Hodgins v. Waldron, supra, is the only cited special assessment case containing a discussion of a contention like that made by defendants in the case at bar, but analogous cases of mandamus to compel action by public officers after the expiration of the time within which they should have acted, point the same way.
The constitution of Missouri, by section 6 of an amendment of 1884, Mo. R.S. 1929, p. 119, provides that when a court of appeals renders a decision which any one of the judges deems contrary to any previous decision of a court of appeals or of the supreme court, "the said court of appeals must, of its own motion, pending the same term and not afterwards," certify the case to the supreme court for rehearing and determination. In State ex rel. New York Life Ins. Co. v. Philips,
City of Cairo v. Campbell,
See, also, State ex rel. Peterson v. Scott,
Defendants cite many cases holding that where a statute creates a new right and limits the time within which it may be exercised, the lapse of the statutory period not only bars the remedy, but extinguishes the right itself. These cases cannot be accepted as authority for denying the relator's right to mandamus. Similar cases were referred to in Horse Creek Conservation Dist. v. Lincoln Land Co.,
The relators had no right or power to make a reassessment, *438 but they had the right to demand and require that defendants make it, and this right was asserted both by formal written request and by the commencement of the mandamus action long before the expiration of the ten year period mentioned in the statute. We cannot hold that the right was lost pending the action.
The judgment will be affirmed.
Affirmed.
RINER, Ch. J., and BLUME, J., concur.