193 P. 395 | Mont. | 1920
delivered the opinion of the court.
On December 23, 1919, the city council of the city of Deer Lodge adopted Resolution No. 204, signifying its intention to create a special improvement district for the purpose of paving Main Street, under the provisions of Chapter 142 of the Session Laws of 1915. The notice therein prescribed appeared in the'issue of the “Powell County Post” of January 2, 1920, published and circulated in the city of Deer Lodge and elsewhere. A protest in writing was made by a majority of the property owners affected, including the plaintiffs, against the creation of the district. It was filed in the office of the city clerk upon the nineteenth day of January, 1920, and by the city council overruled. It appears that the resolution of intention, at the time it was published, had not been and was not signed by the mayor until the date on which the protest, was filed. The trial court found that Resolution No. 204 was legally passed and adopted, although the notice of intention was published prior to the approval of the resolution by the mayor. Application for an injunction was instituted against the mayor and council of the city in the court below to stop the construction of the improvements, which injunction the
The mayor did not approve the resolution of intention until January 19th, seventeen days after its publication. This omission appellants contend is jurisdictional, rendering the proceedings insufficient to set the executive machinery of the city in motion, and an infirmity invalidating all the subsequent proceedings creating the improvement district and the making of a contract for the doing of the work. If this point is well taken, the order denying the injunction' must be annulled.
A resolution of intention, in due form and properly adopted,
“The resolution of intention is the primary step to be taken in every instance. It is the basis of the whole proceeding. It, with a notice of its adoption, is a condition precedent; nothing may be substituted in its place, and, though the proceedings may, in all other respects conform to the requirements of the statute, the omission of it is fatal and renders all the subsequent proceedings nugatory. (Page & Jones on Taxation, secs. 777, 830; McQuillin on Municipal Corporations, secs. 1848, 1849; 28 Cyc. 978; San Jose Imp. Co. v. Auzerais, 106 Cal. 498, 39 Pac. 859; Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454.) To hold that a resolution creating a district in limine, though notice of it is given, is a compliance with the statute, would be equivalent to a holding that the legislature did not mean what it said, and intended the municipality to wholly disregard the prescribed procedure and proceed by any mode it máy deem advisable.
“Nor is the proceeding aided in any way by the failure of any property owner to file with the clerk his written objection to the regularity of the proceedings, within sixty days
Mr. Justice Holloway, in the later case of Johnston v. City of Hardin, 55 Mont. 574, 179 Pac. 824, further emphasizes the necessity of a substantial adherence to the requirements of the statute as follows: “These proceedings have for their ultimate purpose the subjection of the property within the district to taxation to bear the cost of the improvements. They are in invitum, and in recognition of these facts the legislature has provided a complete, but direct, plan of procedure, designed to protect property from confiscation and at the same time permit beneficial improvements to be made. It has provided for notice to the property holder, and an opportunity for him to be heard before the proposed district is created, and it has constituted the city council a special' tribunal to conduct the hearing. This tribunal is clothed with limited powers only, and no presumption in favor of its jurisdiction will be indulged. The statute measures its authority and compliance with the terms of the statute is a condition precedent to its right to act. (State ex rel. Quintin v. Edwards, 40 Mont. 287, 20 Ann. Cas. 239, 106 Pac. 695.)
“The notice is the process by which the council brings the interested property owner before it, and service of the process is indispensable unless service is waived. (Davidson v. Clark, 7 Mont. 100, 114 Pac. 663.) Service is made by publishing a notice containing the matters enumerated in section 3 above,
And again: “The statutes above not only qualify and limit the powers which the city council may exercise, but they define with particularity the mode in which the restricted authority may be used, and compliance with their provisions is the sine qua non to the creation of a special improvement district for making improvements the expense of which is to be a charge against the property included. (Shapard v. City of Missoula, above; Cooper v. City of Bozeman, 54 Mont. 277, 169 Pac. 801.) The statutes define the contents of the notice and the manner of service, and declare that the giving of this notice is one of the steps necessary to be taken before the city council is clothed with jurisdiction to order the work done, and no argument, however specious, can excuse a • failure to observe their mandates.”
We come now to the question upon which the appeal turns,
Section 3265 of the Revised Codes reads as follows: “All ordinances, by-laws and resolutions must be passed by the council and approved by the mayor, or the person acting in his stead, and must be recorded in a book kept by the clerk
This language is broad enough to make the approval by the mayor of “all ordinances, by-laws and resolutions” indispensable to their validity; and, so far as our examination discloses, none of the later statutes have qualified the plain mandate of section 3265 in that respect. This view is fortified by the last legislative expression on the subject of municipal improvements, found in Chapter 142, Laws of 1915. By section 9 of that Act, notwithstanding the failure of any city or town council, in creating, or attempting to create, special improvement districts, to proceed in the manner required by Chapter 89 of the Acts of the Thirteenth Legislative Assembly (Laws 1913), validity is given to “all special improvement districts” created or attempted to be created since March 14, 1913: “Provided, however, that a resolution of intention to create, or a resolution creating or attempting to create any such district, was duly and properly passed and adopted by the city or town council of any such city or town, and approved by the mayor thereof, prior to giving notice thereof. ’ ’
It is significant that, twenty years after the enactment of a general law specifying the particulars to be observed in the passage of municipal legislation and the manner in which the record should speak in those matters, the legislative assembly saw fit, by proviso in a statute intended to validate all city and town improvements made since 1913, to reiterate necessity for the concurrent executive act of approval by the mayor before any ordinance, by-law or resolution could effect a cure in proceedings of this character. This must be 'held to negative the thought that so important a step in the juris'dictional conditions precedent can be omitted.
Reversed.
Rehearing denied November 17, 1920.