Mansur v. City of Polson, 125 P. 1002

125 P. 1002 | Mont. | 1912

Lead Opinion

MR. JUSTICE SMITH

delivered the opinion of the court.

This suit was brought to obtain a decree declaring a resolution of the council of the defendant city of Poison, creating a special-improvement district, null and void, and to enjoin the defendants from entering into a contract or accepting any bid for the construction of the improvements contemplated by the resolution. ' The appeal is from an order of the district court dissolving a temporary restraining order. This court enjoined the defendants from proceeding, pending the appeal.

1. The first contention of the appellants is that the resolution failed to sufficiently state the character of the improvements to be made.

Section 4 of the resolution reads as follows: “That the [1] character of the improvements to be made in said district are hereby described as follows: The construction of concrete sidewalks and curbs on the east side of Kootenai avenue and the east and west sides of Third street within the boundaries of said district. Also the east side of block 4 and along the north side of A street from Kootenai avenue east to the center line of lot 2, block 3, the north side and the south sides of B, C and D streets from Third avenue to the alley between Third street and Fourth street along the west half of the south side of block 19, and the east half of the south side of block 20 and along the north and south sides of B street from Third street west to the alley line in block 11. The construction of a concrete cross-walk on the east side of Kootenai avenue at A street, four concrete cross-walks at the intersection of B street and Third street, four concrete cross-walks at the intersection of C street and Third street, and four concrete cross-walks at the intersection of I> street and Third street, and one concrete cross-walk on the north side of E street across Third street. Also the grading, surfacing and graveling of the roadway of Third street and Kootenai avenue and all of B, C and D streets between Third street and the alley between Third street and Fourth street and all of A street within the boundaries of said district.”

Section 3397, Bevised Codes, invoked by the appellants, among other things provides that whenever it is desired to create a special improvement district- for the purpose of grading, paving, curbing, macadamizing, planting trees, constructing grass plots and sowing grass seed thereon, constructing sidewalks, sewers and gutters, in any street, avenue or alley, the council shall by resolution designate the number of such district, describe the boundaries thereof, and state therein the character of the improvement or improvements which are to be made, an approximate estimate of the cost thereof and the time when the council will hear objections to its final adoption.

In the case of Levy v. City of Chicago, 113 Ill. 650, the court said: “The statutes require the city council, when an improvement is to be made by special assessment, to pass an ordinance specifying the nature, character, locality and description of such improvements.” It was accordingly held that an ordinance which did not meet the requirements of the statute was void. This case has been followed in City of Sterling v. Galt, 117 Ill. 11, 7 N. E. 47; City of Kankakee v. Potter, 119 Ill. 324, 10 N. E. 212; Otis v. City of Chicago, 161 Ill. 199, 43 N. E. 715; Cass v. People, 166 Ill. 126, 46 N. E. 729; People v. Hurford, 167 Ill. 226, 47 N. E. 368; Sanger v. City of Chicago, 169 Ill. 286, 48 N. E. 309; and City of Geneseo v. Brown, 250 Ill. 165, 95 N. E. 172.

In Fay v. Reed, 128 Cal. 357, 60 Pac. 927, the court held that under a statute requiring a city council, before ordering work on a street improvement, to pass a resolution of intention to do so “describing the work,” a resolution to improve a street by grading, 'curbing and for the construction of “suitable drains and inlets at all intersecting street crossings to carry the surface water of intersecting streets and of Market street into tbe main branch sewer running along said Market street,” was fatally defective, because it failed to specify the number of drains and inlets, or the size of the drains, or the materials of which they were to be constructed, or the kind and character of the inlets. To the same general effect are the cases of Grant v. Barber, 135 Cal. 188, 67 Pac. 127, and Lambert v. Cummings, 2 Cal. App. 642, 84 Pac. 266.

These proceedings are purely statutory. The only limitation upon the power of the legislature is that the property of the citizen shall not be taken without due process of law. An opportunity to be heard must be afforded. (See Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 154.) The contents of the resolution, in so far as they relate to notice of what improvements are contemplated, are for the legislature to dictate, and so long as a reasonably comprehensive notice is provided for, the courts have no power to declare it insufficient. Our statute does not require a detailed description of the work to be done, or any description, as such. We have no requirement that the “nature, locality or description of such improvements” shall be set forth in the resolution. All that is demanded is that the council shall designate the “character of the improvement.” The legislatures of sister states have seen fit to require a more detailed description of the contemplated improvement, and the courts of those states have very properly held that the council must comply with the statutory command. The fact that our lawmakers did not see fit to declare that the resolution must contain a description of the work, as is the case in Illinois and California, is good evidence that the general character of the work is all that is necessary to be given in the resolution. We think the resolution adopted by the city council of Poison was sufficient in this regard.

2. The minutes of the city council show this entry under date of March 11, 1912: “Upon motion duly made, seconded and [2] carried, the graveling of the streets will be left out of the specifications.” The complaint alleges that this action was taken without notice to the plaintiffs and the change was a material one. The notice to contractors, inviting bids for the work, omits any reference to graveling the streets. It is contended on behalf of the appellants that the resolution of the council was a contract,, and its action in resolving not to gravel the streets was a violation thereof which rendered it void.

On general principles, the resolution being the sole authority for the construction of a public improvement to be paid for by special assessment, the municipal authorities have no right to change the nature, locality or character of the improvement as set forth in the resolution. Where the improvement about to be constructed is materially and substantially different from that authorized by the resolution and the cost of the same is materially increased, the courts will interfere. But a substantial compliance of the work done with that provided for in the resolution is all that is necessary. (Hamilton on Law of Special Assessments, secs. 391, 392.) It is alleged that the omission to gravel [3] will be a substantial and material change from the original plan as evidenced by the resolution. There is not anything in the record, however, to prove the allegation.. The change may be altogether immaterial for aught we know. It may be that the condition of the streets in question is such that but little, if any, graveling was contemplated in the first instance, and that the council afterward considered the matter of graveling of so little consequence that it resolved to omit it altogether. It was for the appellants to prove the materiality of the change in the resolution and this they failed to do. This court cannot take judicial notice of it. It is altogether possible, also, that the council may provide for graveling in separate specifications.

3. Among other provisions the resolution contained the [4] following: “That to defray the cost of said improvements an assessment shall be levied against all the assessable property within said district, and each lot or parcel of land within said district shall be assessed for that part of the whole cost which its area bears to the entire district, exclusive of streets, alleys and public places.”

It is finally urged upon us that the proceedings of the council were void for the reason, in effect, that the owner of an inside lot will be obliged to bear tbe same proportion of expense for improvements on side streets adjacent to a comer lot of the same area as would the owner of tbe comer lot, and it is said that tbe benefits to tbe inside lot owner are disproportionate to .those received by owners of other lots in tbe district. Section 3396, Revised Codes, provides that whenever tbe council desires to make improvements and extend the payments for the same over a period of three years, it shall enact by ordinance that the entire expense of all improvements within each special improvement district, including cost of street and alley intersections, shall be paid by the entire district, each lot or parcel of land within such district to be assessed for that part of the whole cost which its area bears to the area of the entire district, exclusive of streets, alleys and public places. It will thus be seen that the plan of assessment pursued by the city council of Poison was strictly in accord with the statute. The learned counsel who argued the cause for the appellants states in his brief that it is not insisted that the plan provided by the Code is wrong, “but that the city council has in this case included the side streets, thus forcing the inside lot owner to pay for the additional improvement to the already more valuable comer lots; that it has applied a scheme of improvement which the law did not contemplate and which is therefore void.” It is undoubtedly true that hardship to individuals is sometimes involved in applying the hard-and-fast rule of the statute to particular eases. It is likewise true that some scheme of assessment must necessarily be enforced to pay for special improvements. The legislature in its wisdom has adopted the “superficial area” rale. This court in McMillan v. City of Butte, 30 Mont. 220, 76 Pac. 203, declared that this rule amounts to a legislative declaration that all property in a proposed district is, presumptively, equally benefited by the improvement. That case settled the law in this state as to the legality of the rale, and although the lots there in question were somewhat differently located with reference to the proposed improvement than are those of the appellants, nevertheless the law permits the respondent city council to proceed, exactly as it did. We find nothing in principle to distinguish this case from that of McMillan v. City of Butte, supra.

The order is affirmed and the restraining order heretofore issued by this court is dissolved.

Affirmed.

Mb. Justice Holloway concurs.

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Concurrence Opinion

Mr. Chief Justice Brantly:

I do not concur in the result reached by my associates in this case.

1. It is true that the proceedings are statutory and that the only limitation imposed upon the power of the legislature is that the property of the citizen shall not be taken without due process of law, that is, after notice and an opportunity to be heard. The requirement as to notice, if it means anything, means that the lot owner must have such notice of what the city council intends to do as will enable him, within the very brief time allowed for that purpose, to make up his mind whether he will submit to the imposition which is about to be laid upon him in order to effect the kind of improvement contemplated, or will appear and object. The statute requires the resolution to state the “character of the improvement or improvements which are to be made, an approximate estimate of the cost thereof, and the time when the city council will hear objections to its final adoption.” The term “character” is perhaps the most general that could have been employed. Even so, it must be assigned such a meaning as will effectuate the purpose had in view, viz., that the improvement be so described by a statement of the dimensions, materials, etc., that the lot owner may determine whether he will acquiesce, and thus consent, or appear at the appointed time and seek to arrest further proceedings. He ought not to be compelled to suffer the inconvenience incident to leaving his business to seek, and make inquiry of, members of the council or of the officer or officers who will have charge of the contemplated improvement. It is entirely possible that in a given case such inquiry would be futile, because definite information could not be obtained from any one of these officers. Indeed, this was the ease here; for the record shows that the city engineer did not submit an estimate of the cost of the improvements or prepare plans and specifications until after the time for making objections had passed by. Such estimate as had theretofore been made had been made, by the street committee.

The statutes of the different states differ widely as to the character of the information the notice must contain; but even in those jurisdictions in which the most general terms are employed, the courts have declared that the contemplated improvement must be so described in the notice or resolution, as the case may be, that the lot owner may gather from it such information as to dimensions, quality and materials as will enable him to make definite objection if he chooses to do so. (Kirksville v. Coleman, 103 Mo. App. 215, 77 S. W. 120; Ladd v. Spencer, 23 Or. 193, 31 Pac. 474; Schwiesau v. Mahon, 128 Cal. 114, 60 Pac. 683.)

2. The record shows that after the final adoption of the resolution the council eliminated from the specifications the graveling of the streets, thus changing the character of the improvement. In my opinion, this was prima facie a substantial departure from the plan and extent of the improvements proposed in the resolution, and the burden was upon the defendants to show the contrary, if such was the fact. As I read the record, the result was to omit this part of the improvement altogether and not to leave it to be included in separate specifications.

For these reasons I think the resolution insufficient to give the council jurisdiction, and that the plaintiffs are entitled to relief.

Petition for rehearing pending.