203 N.W. 201 | S.D. | 1925
During the spring of 1921, the city commission of the city of Rapid City, pursuant to a resolution theretofore
Among other grounds urged for a reversal of the order appealed from, appellant contends that the city commission was without jurisdiction to enter into the contract under which the work was performed; that the improvement described in the resolution declaring the' necessity of the work is an entity, a project; and that it cannot be changed after it has once been fixed by such resolution.
The resolution involved in this case and the improvement to be made pursuant thereto are authorized by the provisions of section 6364, R. C. 1919. After the resolution is adopted by the commission, the same is then, in effect, submitted to the owners of the property to be affected by the making of the proposed improvement, and unless the owners of more than 65 per cent of said property file protests against the making of the.improvement, the resolution becomes effective; the commission may proceed with the work and then sell the abutting property to' pay for such work. It is a harsh, arbitrary statute, and one under the provisions of which a person may be deprived of his property without his consent. Such a statute should be strictly complied with. McLauren v. Grand Forks, 6 Dak. 397, 43 N. W. 710; Mason v. Sioux Falls, 2 S. D. 640, 51 N. W. 770, 89 Am. St. Rep. 802; Whittaker v.
A property owner cannot intelligently exercise the right to protest given him by the provisions- of section 6364, unless he knows the extent and character of the improvement, and it is the office of the resolution to give him this information; but if the extent or character of the improvement may be changed after the time for protesting has elapsed, then he is in effect deprived of the very right the statute is intended to afford. It may well be, and in this case the proof shows it to be a fact, that the owners of some of the property abutting on this improvement on the south side of the railroad tracks were interested in having that portion of the improvement on the north of the tracks made and for that reason may have refrained from protesting. Again, the proof, uncontradicted, shows that because of natural conditions, that portion of the project lying to the north of the railroad tracks would cost more in proportion to the amount of frontage than that portion to the south, of the railroad. When the contractor figured on the cost of the job, he undoubtedly took 'this feature of the project into consideration and included this excess cost in his bid. This excess was apportioned against the entire frontage and increased the cost per front foot of the work that was actually performed over what it would have been had the work to the north of the railroad not been included in the resolution and the call for bids. This, whether intentional or not, worked a fraud on the owners of the property fronting on the improvement actually made. These circumstances forcibly illustrate the rule against making changes in the work as it is described in the resolution. And there is no phase of the law relative to local improvements and special assessments that is better settled than that when the resolution declaring the necessity has been adopted, the improvement as described therein cannot thereafter be changed. The resolution is jurisdictional and must be strictly followed so far as the extent and character of the project is concerned. McBean v. Redick, 96 Cal. 191, 31 P. 7; Dougherty v. Hitchcock, 35 Cal. 512; Manley et al v. City of Marshfield, 88 Or. 482, 172 P. 488; Stockton v. Whitmore, 50 Cal. 554; Inge v. Board of Public Works, 135 Ala. 187, 33 So. 678, 93 Am. St. Rep. 20; St. John v. East St. Louis, 136 Ill. 207, 27 N. E. 543; Auditor General v. Stod
By the adoption of the resolution, and the failure of a sufficient number of the property owners to- protest, the commission acquired, jurisdiction to proceed and make the improvement as described in the resolution; but the improvement so described became an entirety, a fixed project, and the commission had no authority to change the same nor to award a contract for a project of greater or less extent. Therefore the contract that was awarded was void, and the commission is without authority to issue assessment certificates in payment for the work so performed.
The order appealed from is reversed.