Johnston v. City of Hardin
179 P. 824
Mont.
1919
Check Treatment
MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On June 25, 1917, the city council of the city of Hardin adopted a resolution declaring its intention to create District No. 9 for the purpose of grading, paving and otherwise improving certain streets, the cost of the improvements to be charg’ed against the property within the district. The notice published by the clerk and the сopy mailed to property owners referred to resolution of intention No. 95, on file in the city clerk’s office, for a description of the boundaries of the proposed district. At the same time a resolution of intention to create District No. 10 for a like purpose was adopted, and in this instance the рublished notice and the copy mailed to property owners referred to resolution of intention No. 93 for the description of the boundaries of this prоposed district. Plaintiff received a copy of each of these notices but did not appear before the council or protest against the creation of either district. Later, the council by resolution undertook to create each district and to contract with Hanlon & Okes to do the work. Plaintiff, the owner of real property within each of the districts, instituted this action to restrain the city authorities and the contractors from proceeding and sеcured a temporary injunction. The defendants appeared by general demurrer and motion to dissolve the injunction and, when this demurrer was overruled, they dеclined to plead further and suffered judgment to be entered against them and appealed. They also appealed, from an order refusing to dissolvе the injunction.

It is alleged in the complaint, and admitted by defendants for the purposes of these' appeals, that resolution of intention No. 95 bears no relationship whatever to District No. 9, but describes the boundaries of, and has to do with, an entirely different district, and thát resolution of intention No. 93 does *579not relate to District No. 10 bnt describes ‍​​‌​‌‌​​‌‌‌​​‌​​​​​‌​‌​​​‌​​​‌​​​​‌‌​‌​​​‌‌‌‌​‌​‍altogether different territory.

The proceedings of the city council were governed by Chapter [1] 89, Laws of 1913, as amended by Chapter 142, Laws оf 1915. Under the provisions of these statutes the successive steps necessary to be taken in creating a special improvement district are: (1) The adoption of a resolution of intention. (2) The service of the required notice. (3) A hearing and a determination against the protéstants if any protest is made. (4) The passage of a resolution creating the district. The first three steps are jurisdictional, and the failure of the council to take any one of them is fatal to the proceedings. (Shapard v. City of Missoula, 49 Mont. 269, 141 Pac. 544.)

Section 3 of Chapter 89 above as amended provides that upon the passage of the resolution of intention the council must give notice by publication and by mailing a copy of the published notice to every property owner within the proposed district. The section then continues: “Such notice must describe the general character of the improvement or improvements so proposed to be made, and state thе estimated cost thereof, and designate the time when and the place where the council will hear and pass upon all protests that may be made against the maldng of such improvements, or the creation of such district; and said notice shall refer to the resolution on file in the office of the city clеrk for the description of the boundaries.”

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 [2] the proposed district is created, аnd it has constituted the city council a special tribunal to conduct the hearing. This tribunal is clothed with limited powers only and no presump*580tion 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 [8] interested property owner ‍​​‌​‌‌​​‌‌‌​​‌​​​​​‌​‌​​​‌​​​‌​​​​‌‌​‌​​​‌‌‌‌​‌​‍before it, and service of the process is indispensable unless service is waived. [Davidson v. Clark, 7 Mont. 100, 14 Pac. 663.) Service is made by publishing a notice containing the matters enumerated in section 3 above, and by mailing to every property owner affected, a copy of thе notice as published. The purpose of serving the notice is (1) to apprise the property owner that his property is within the proposed district and liable to assessment if the district is finally created; (2) to inform him of the general character of the contemplated improvements and the probable cost of the same, and (3) to advise him of the time when and [4] place where he may be heard. While it is not required that the notice itself shall contain a description of the boundaries of the proposed district, it must refer to the particular resolution of intention for such a description and the resolution of intention must describe the boundaries, and by this reference the designated resolution is made a part of the notice to all [5] intents and purposes. If, then, the resolutiоn to which the property owner is referred, does not describe the boundaries of the proposed district but describes other territory altogether, the рrimary purpose of the notice is defeated, or, in other words, the notice contemplated by the statute is not given and the council does not acquire jurisdiction to proceed. The authorities elsewhere are quite uniform in holding that statutes of this character are mandatory. (4 Dillon on Municipal Corрorations, 5th ed., sec. 1457; 2 Page & Jones on Taxation by Assessment, sec. 740; 4 McQuillin ‍​​‌​‌‌​​‌‌‌​​‌​​​​​‌​‌​​​‌​​​‌​​​​‌‌​‌​​​‌‌‌‌​‌​‍on Municipal Corporations, sec. 1349.)

It is established by this record that the resolution to which plaintiff and other property owners were referred for a descrip*581tion of the boundaries of District No. 9 describes territory none of which is within that district, and the same thing is true with respect to District No. 10. It is suggested by counsel for [6] appellants that the caption of each notice as published contains a correct reference to the appropriate resolution by number; but it is sufficient answer to say that the caption is no part of the notice.

It is also аrgued that it is fairly inferable from the [7] complaint that plaintiff had actual knowledge that his property was to be included in these proposed districts; but if we assumе ‍​​‌​‌‌​​‌‌‌​​‌​​​​​‌​‌​​​‌​​​‌​​​​‌‌​‌​​​‌‌‌‌​‌​‍that this deduction is warranted, it does not aid appellants. Plaintiff was not called upon to act until he had been served with the statutory notice in the manner рrovided by law.

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 restrictеd 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 dеclare 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.

„ Since the council did not acquire jurisdiction to create either of these districts, the other questions argued need not be considered.

The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantdy and Mb. Justice Cooper concur.