*1 Deal, D. Robert William L. MARION, Oscar Farlow, Clyde Robinson, A. H. Edward Wade, Decker, Wainright James M. (Plaintiffs below), Gustin, Appellants LANDER, Wyoming, Municipal OF
CITY Hallam, Mayor, Corporation, Mel T. Carson, Farthing, E. H. A. Harold Souter, and Woodrow Von Biek Charles H. er, members Council of said Lander, Wyoming, Appellees, (De below). fendants
No. 3254.
Supreme Wyoming. Court
Aug. 21, 1964.
9X1 Briefly, the record before us dis early part closes that year 1963 officials of of Lander became interested program extensive of street paving within city, including curb and *3 gutter, drainage, and other incidental im provements in connection A therewith. procedure accomplish to such an under taking is contained in 15-444 to §§ inclusive, W.S.1957, as the same have been by amended S.L. of 1963. Without going here into the detail statutory grant power to cities premises herein, and towns the it can be generally said steps that four essential must by be taken per the order to procedure: fect (1) adoption the of a resolution of intention to make the im provements containing prescribed certain fixing information and place the time and hearing protests; (2) for the enactment of an ordinance reciting the action taken on intention, the resolution of and if the coun proceed, cil determines ordering to im provements made; (3) letting be a contract for construction and installation improvements; (4) levy such and Sr., Lander, Spriggs, and John John J. J. equalization and special assessments Spriggs, Jr., Washington, C., appel- D. for ' against property within owners the district lants. defray specified improve costs Smith, Harnsberger, Smith Lan- & W. A. ments. der, appellees. for PARKER, J., Before C. and HARNS- authority, Pursuant to such coun- BERGER, McINTYRE, and GRAY July 27, 1963,adopted cil on a resolution de- JJ. claring pro- proceed its intention to with the opinion Mr. GRAY delivered the Justice gram purpose and for to create im- an cf the court. provement district the boundaries of which appeal corporate This case involves an a sum- from to be with the coterminous mary judgment However, entered trial court city. because of the limits appellees, below, on behalf defendants divergent nature plain- by appellants, separated proposed action commenced was the same below, e., taxpayers categories, tiffs and owners of real residential street into four i. property Lander, Wyoming, paving, paving, arterial curb street similarly situated, incidental im- gutter, drainage themselves others enjoin provements. further undertaken cost was The total estimated $2,322,171.00. the defendants to establish a sum The resolution local proposed to be specifically ment district of construc- names the streets ting installing paved the nature generally certain and describes therein; thereof work to assess the costs and extent of the construction special general The information benefits to the owners same done. pro- respect within the other the district. furnished The posed September resolution also and enacted an ordi- protests; council has determined that recites that the nance which overruled in es- proposed will confer proposals sence carried into effect the con- intention; benefits owners of tained in the resolution of within and sets meth- engineer prepare plans the district forth the directed assessing proposed specifications od benefits. projects. for the several paving, it With to residential street Soon thereafter and before proposed to assess the costs on each one- steps complete were taken contiguous improved half block street matter, complaint plaintiffs filed their respect to square-footage on a basis. With validity launching a frontal attack portion paving, arterial of the cost street pro- proceedings already taken equal paving to the cost of residential street posed to be taken the defendants. will be basis assessed on the above described general basis of their *4 excess, any, be proposed and if to the provisions enumerable constitutional prop- of the against assessed all assessable defendants; by that the violated the square- erty within the on a district —also au- proceeding defendants were without footage for curb and basis. Assessments fraudulent, arbitrary thority of and in a law gutter proposed to capricious manner; defend- and and that respect made on a lineal-foot basis. With prem- jurisdiction without in the ants were proposed drainage for the assessments sought determina- ises. The relief was a improvements, de- and incidental the the tion that the resolution of intention and only the a limited within termined that area force or ordinance were void of no and specially by district would be benefited effect; enjoined from that defendant be fixing after the bound- and matter; proceeding in and for the by aries a course and distance of the area expendi- alleged illegal an accounting of description proposed levy an assess- tures. on a ment the therein all defendants, The amended answer square-footage basis. substance, allegations in denied the place The fixed and resolution also a time pertaining charges complaint to the several protests for considering by plaintiffs prayed advanced objections proposed improvements to the this, Following be dismissed. provided serving for notice also summary filed a defendants motion for by prescribed in manner proceeding 56, pursuant Wyoming judgment to Rule statute. Rules of Civil Procedure. Attached relating filing copy The of motion was a certified tran protests by by property subject script proceedings real owners of of all of taken importance pro- with and the is of the resolution assessment statute, ordinance, together supporting ceeding. our W.S. with affida Under 5, upon by bearing regularity of such as amended S.L. vits fif- proceedings. juncture if owners of more than At a critical point plaintiffs’ ty percent property complain in Un reached action. of such controverted, writing, proposed project as must be less the factual matters so presented by Ac- That was not here. defendants were sufficient—as abandoned. done protests by and with cording the record the made em- later determined the trial court only approximately agree com braced of which we show substantial one-fourth —to pliance statutory require applicable proposed improved street area paving gutter approxi- creation curb and ments for the and establishment improvement mately special Conse proposed for district. one-third area quently, plaintiffs their if were to succeed drainage and other There- upon claims, than direct attack upon special council met other their session statutes, they which, longer no making could rest of an complaint. others, allegations may appear necessity. the mere of their be, Vipont may Mining though appear Co. v. Uranium Research That it does not Development Co., record, Wyo., the situation of some them, necessary parties It was to come assessed in the prescribed herein, forward in manner “set and the learned counsel for specific plaintiff only duty showing forth facts that there is a not zealous their such, but, genuine 56(e), perhaps trial.” Rule affected issue also hardship W.R.C.P. such condition of known to them, urging been insistent plaintiffs That failed to meet this points us the correctness of their quite apparent. only burden is re fully ap- of view. We understand and sponse filing made was the of five affidavits preciate arising the situation often district, made owners in the We, by sym- above mentioned. moved stating in substance as conclusion pathetic counsel, feelings no less than they pay would be unable to as glad would be too to meet and proposed sessments because of their de remedy such conditions whenever aris- pressed situation; financial an unsworn ing, if legally could do so. But the county setting statement assessor perform court has to the function as- forth the assessed valuation of certain lots signed to it Constitution within the district state; laws of this and in this case the *5 1963; year pic and a few unidentified remedy, necessary, if sought which is palatial tures of the modest and the in the counsel, by the sought learned must be way improvements upon prop of certain n at the legislative hands of the branch represented pro erties within the government, of the prerogatives, whose posed plaintiffs. district counsel for exercised in accordance with the Con- wholly Such matters are without eviden- stitution, right usurp.” we have no to tiary in presenting value facts that aid For such reasons and the further plaintiffs in litigation. assuming this Even . reason proceedings of the town that the assessed valuation of certain of the council herein presump are clothed with a properties purposes for ad valorem tax was tion of regularity; agree special we with the properly court, before the there is no re finding of the trial court genuine that no quirement so far as we can find that com issue of concerning material fact pels to take such matters into con sufficiency regularity fixing sideration in determining remained the case. Whatever re issues assessment of benefits. With re questions mained Consequent of law. spect response, to the other facets of the ly matter before us is whether or improve upon we could not if we tried not the correctly trial court decided those by Judge answer made Blume to similar Co., issues. Lieuallen v. Northern Utilities contentions in Casper, Bass v. of 28 Wyo., 949, 953; 368 P.2d Fugate Mayor v. 387, Wyo. 1008, 205 rehearing P. denied Council Buffalo, of Town Wyo., 208 P. opinion wherein in the on 76, 81. petition rehearing it was stated: “We are not unmindful of the Simply fact that because a case here reaches proceedings for local on mean, assessments are that state record not does importance taxpayers of vital course, questions that serious and difficult affected. inequality We realize that presented are not They for solution. are easily burden possible, and that even usually and such expect the case. We it. thereof, great hardship absence ought But it in not to be difficult in the first imposed often on holders just questions stance to ascertain are what illy who can afford properly to contribute toward before us and merit consideration.
915 up, counsel also and if invokes other constitutional point job them It is counsel’s support claimed to been have violated preciseness done with it is not proceedings. It is avail its pertinent by cogent argument and ed axiomatic, course, inquire can do to that we do not authority little we there it able questions constitutional rectify claimed into unless neces- effort to aid counsel their sary disposition Stoll case. part court. Sheridan of the trial error on the 973; County 969, Q. Chicago, Power B. R. Dist. v. & Stolldorf, Wyo., 384 P.2d dorf Co., Wyo. 61 157 Con- P.2d 1000. County Board of Commissioners Miller v. phase sequently, presen- P.2d on this Wyo. counsel’s County, 337 of Natrona tation, requisite prime run into to furnish we It is on this score that lending support the record facts here state difficulty presentation made argument. seen, have As we by plaintiffs’ counsel. burden been has not met. fact Issues of up his illustrate, take let us first To tendered were not conten- most these intention resolution of insistence despite assumptions tions counsel’s “invalid, unconstitu ordinance are contrary. statutes and void” because the tional foregoing general From the observations pro rely sustain the which defendants probably we made clear that find we void.” ceedings are “unconstitutional appeal, no merit and for such rea- specifies point en support In counsel separate, not or- son shall undertake to provi fourteen constitutional masse some ganize discuss all multifarious violated. that are claimed have been sions plaintiffs’ matters behalf. thrust us obviously wholly unrelated Some are Nonetheless, per- because of their counsel’s mentioned, question. if scarcely are Others advancing regardless sistence his views all, ar argument. in his at Those that previous holdings regardless of our gued passion, in the with vehemence might record, state of the not main, previous ignore run counter up amiss to take of his few contentions pronouncements holdings and of this court. simply point plaintiffs why out cannot occa plain fact is that on at least three *6 prevail. general proposition we have sus sions as a towns, right tained the of the cities example, brief For counsel’s statutes, local keeping with these create proper argued fail to fix is that the statutes against assess districts the as the nature and extent of standards special the real therein as benefits violating improvements made, to be thus improvements. McGarvey of such the cost equal protection process clause due Treasurer, Swan, City 120, Wyo. v. 17 96 P. course, Of clause of the constitution. 697; Casper, supra; v. Chi Bass of standards, general furnish but statutes do Ry. cago North & Western Co. v. lack of detail. counsel’s Riverton, 84, County, Wyo. 246 Fremont 70 state, that, case we said in this the Bass In 789, 792, 247 P.2d interest in P.2d 660. Of plenary granted cities and towns have been case mentioned is last this statement: power We found as to local “ * * * However, judicial deci- a inhibitions such no constitutional legislation authorizing sions such power. delegation Concerning such special generally assessments have be- said, 1016, grant also P. that we at 205 crystallized so seem come it would improve “of the determination extent question day to be rather late included in it” is ment and what shall be ” * * * authority. their legislative power rests the exercise of legislative discretion Furthermore, in the ready be found answer will true, no it follows that That specific council. mat- in those cases most leaving details to the impropriety results In ters raised counsel. addition power it exceeds such statutes, and unless plaintiffs’ direct attack 916 fraudulent, proper apportionment
or exercises its discretion in a
according to the
”
* * *
arbitrary
capricious
provided
or
manner —which as
rule
by our statute.
we have seen is not shown here —the courts
In
perhaps
this connection
should
men-
McGarvey
will not interfere.
also
See
tion that
argument
of counsel is direct-
Swan, City Treasurer,
Wyo.
96
17
principally
ed
proposal
at the
to include
715; McQuillin, Municipal
P.
13
714 -
improvements
“arterial
paving”
street
Corporations,
(3 Ed.);
37.25
§
C.J.S. within the district.
It is contended
Municipal Corporations
§
“general”
rather
than
Again
“local.”
we have held that this is
says
Counsel
not true as a matter of law. Gorrell v.
they
statutes are deficient in that
fail to
City Casper, Wyo.,
840-841.
provide
hearing
question
for a
on the
question
as whether or not the
proposed improvements
whether the
result in
council’s
determination that
“special
property proposed
benefits” to the
ments were local
fraudulently
was made
assessed and to furnish standards from
arbitrarily is not before us. There are no
which such a determination can be made.
facts from which such an inference could
specious
drawn.
argument
Such
indeed in view
holding
Chicago
of our
in the
& North
leaving
Before
this matter of no
Ry.
pointed
Western
there
Co. case. We
hearing
tice and
we should not be under
legislature
out that the
itself
§
departing
stood as
from what we said in
W.S.1957—which has since been amended
the Bass case.
It was there held that due
aug
S.L.
process required
hearing
notice and
at some
menting
15-465—deter
stage of the proceeding in order that owners
specifically
property special
mined
the real
might question
validity
justness
ly
benefited
the assessments for
benefits. How
said,
that connection we
at
9X7 fraud, require such statutory absent assessments were not anot of that factor is tion subj ect to attack. There provision, collateral all the constitutional is to the ment. As applying the Mc more reason for the same rule to stated in- complete answer is stages preliminary case, we said where Garvey P. where assessments at 96 city is is shown as it here that the have reference provisions “such jurisdiction premises taxation, not had was do restrict general lawfully proceeding. power levying assessments.” of unfounded However, of counsel’s because by plaintiffs’ is It further contended coun- city council members attack sel that the entire void Sec go a further. little in this we the reason that the individual defendants W.S.1957, by 15-465, amended Ch. as tion unlawfully occupying the offices of 1963, pro Wyoming, of 12(b), S.L. § mayor councilmen at the time the of allocation. methods vides alternative adopted resolution of intention method, of meth or combination Whatever ordinance argument enacted. The is two- ods, prima facie utilized results is fold. equal Without uniform allocation. It first that re is advanced arbitrary is or showing clear that statute classification of Town of Lander on respect, grave injustice in this results 7, 1963, March class the first say showing, No such it is void. we cannot brought its dissolution and that about from find it Consequently made. has been duly on the town date elected officials attack difficult to understand counsel’s occupied usurpers. their as There is offices The record shows of the council. members true, course, no merit in this. that It is by compliance the statute substantial brought about certain the reclassification void, not council. the statute If city’s government form changes in the be void. action of the council cannot powers. and its Nevertheless it continued entity. public corporate as exist the same yet another answer There Municipal Corporations 36b. § C.J.S. plaintiffs prevailing up prevents from 15-36, W.S.1957, Furthermore, relating to § point. the conten this The substance of provides: “The the matter of reclassification goes their assess to the own tion amount government of such shall continue assessments, by way, ments. The authority reorganization, until the which made, yet. not been before made. When regular holding shall of a be effected city council,, hearing confirmation under the act.” election sitting must held the council true, insists, if it were as counsel Even equalization board for the brought the reclassification about vacancies protests considering proposed assess offices, fills the vacan these that statute statute, By W.S.1957, ments. by appointment reorganiza until cies 145, 13, amended S.L. completed. tion is “correct, empowered such board is revise, raise, lower, modify argument facet of the' change other or part thereof, mayor and two members roll or set the terms of aside May roll ended on and order that such the town council assessments novo, they appear occupied made such offices body de as to such from that date on shall just equitable, proceed illegally. argued it is then to con In this connection *8 W.S.1957, provid- by protes firm the same ordinance.” If a substance that § aggrieved by tant hold ing officials of a town shall the decision- of the that elected board, provision are appeal made office . “until their successors elected 3, qualified” courts.' We in the is in of Art. held Bass case that those contravention adequate providing part were 32 of Constitution § determining equalizing “no extend the term assessments that law .shall that, public purposes For of the any officer.” the district and
918 premise that accept multiple counsel’s district for
argument improvements. First, we 1963, 9, fill May held on was actions are no election as a matter of law unrea- sonable, mayor councilmen arbitrary and two capricious. offices of And second, as occupants continued to act particular and that the instance during improperly all of the has attempted such officers to create two agree with However, improvement not we do herein. districts in proceeding. one no occasion find conclusion. We counsel’s Reasonableness question. the constitutional to consider The act under which the council has Laramie, City of 58 May In v. proceeded, 145, 1963, S.L. of Wyoming, 300, 314, 240, refer we made Wyo. 131 P.2d “improvement” describes the term any as though an officer even ence to the rule that local improvement kind. See Ch. appointed under unconstitution might 145, E,1 S.L. of It 1963. statute, facto nevertheless a de he was al impossible for me to think of an by prior performed him officer and acts ment in one 'city corner of as un judicial holding the statute decision a local with opposite to the extreme they in so far as were valid constitutional corner. public third volved the interests So, assuming argued persons. even Four kinds of specified unconstitutional, it does not such statute is council’s declaration of intention. proceed They (1) a matter of law follow as are: Residential paving; street mayor (2) and the members ings taken arterial street paving; (3) curb and prior gutter this action improvements; (4) drainage Shull, v. 179 Ark. See also Stevens incidental void. Fifty-eight dif- 1258; 1020, 1018, 766, 64 A.L.R. portions 19 S.W.2d ferent of streets are described for 651, Neligh, Neb. City 155 Freeman v. change existing 67, 71; City Albuquerque 53 N.W.2d street grades elevations or at loca- some Co., Supply 24 N.M. 174 P. Water tions. 217, 225, a fur A.L.R. 519. But there is (v) In 12(b) act, legis- of the 1963 rejecting argu counsel’s ther reason lature has undertaken to authorize more recently just held the case ment. We than one to be combined in Sheridan, Wyo., 392 Crawford v. single-improvement district when the coun- injunction not a P.2d cil determines that such a combination is question right of proper remedy efficient and goes economical. It without public person holding exercising a office or saying that such determination must be within the state. reasonable and arbitrary capricious. not been made contentions have If Several other interpreted, statute were otherwise it unnecessary by plaintiffs, think it but we would violate the require- constitutional opinion. extend this Suffice process ments due of law. Kalman v. say reviewed and consid- Western Telegraph Company, Wyo., Union find to be ered those contentions and them 390 P.2d 726-727. See also State v. without merit Freight System, also. Cater’s Motor 27 Wash.2d
Judgment affirmed. 15-541, W.S.1957, pro- Sections 15-530 to vide making for the local (dissenting). Mr. McINTYRE Justice types city improvements other case, my general, In view of this there are two to be financed the issuance of why ap- give people city. reasons the court should not voted bonds proval 15-531, W.S.1957, specifically pro- or sanction to the actions of the Section attempt except local-improve- council in its include the entire vides that no bonds bonds, local-improvement provided law, of Lander in one ment shall *9 proposi- capricious improvements for until and as matter of a issued law. That city been apparent has submitted council issue the same has so acted is tion from defendants’ a vote. own affidavits and to such from us, record summary before and judg- exempt intent is to legislative obvious The ment granted should not been people necessity of a vote from plaintiffs. only issued for im- those bonds which are strictly provements classed as which can be District A Within District improvement If is local and the local. particular A illustration the manner in 145,property city proceeds owners under Ch. city effectively which the pos- has avoided protests if project are can defeat the protests sible is shown the manner in by legal of over one- filed owners of record attempts which it improve- to establish two subject property half the area of the (one ment districts other) within the under Wyom- S.L. of See Ch. assessment. guise pretense and of one so-called lo- ing, 1963. cal-improvement district. reasonableness is where the test of This city purports council to establish city apparent. is fair If the and becomes Local Assessment District No. 1 and to reasonable, being if without ar- it acts ' describe its bounds, boundaries metes and bitrary capricious, will follow the or it including City therein all Lander. local-improvement statutes and spirit of the city In its recognizes ordinance the property genuine a give each owner improvements states that the various protest fide whatever im- bona chance separate and distinct substantial differ- provement for. is assessed he character, location, ences method of as- n improvement or combination When the sessment and otherwise. par- strictly local Section pertains 7 of the ordinance property owner, has a chance to ticular he drainage boundaries of the and incidental prevail upon neighbors call his improvement area. It declares: “There is protest support either them or hereby within created the boundaries of said However, city’s proposal. when im- Lander, Local Assess- provement or he which ment District pur- No. an area for the is assessed combined with numerous and pose of determining property to be uni- divergent other all of which formly drainage assessed for and incidental $2,322,171.00,. fifty-eight cost than more expenses.” The boundaries of this area an extending locations over entire bounds, are described metes and is 4,182 inhabitants, then his chances of expressly entirely area stated that such lies prevailing property sufficient owners to within the of Lander the District. approve reject proposal or the combined Thus, by simple expedient calling effectively taken from him. drainage improvement and incidental possible There could be no reason for the district an “area” rather than an city improvements council to include all district, is, ment which it the council cre- considered to be desirable combination actually (regardless ates what is of the name package, city, of one taking in entire it) improvement given an within district hopes unless to avoid bond issues improvement I district. know of no people voted and at the same time statutory authority action. Sec- hopes adopt system an assessment under 12(b) (v) only tion more than one authorizes impossible, practically so, which it is single to be in a combined pro- dissident defeat owners to improvement district. posal by filing protests. of affirmative also, arbitrary I am still with the dealing, me, To action in which the council’s subter- unreasonable manner fuge unreasonable, arbitrary therefore has taken from certain owners
920 case, protest. legislature opportunity repeal and bona fide saw fit fair lucid, my point take all pertaining order more I to an enlarged In to make dis- trict, particularly property within the case of owners W.S.1957. See 145, 17, improvement “area.” S.L. of drainage and incidental That 1963. pretense no properties being has left authority assessed for Their are district, Lander particular improvements. enlarged for an these and it now strictly is confined legal If half of this owners of over improvement district as properly can improve- protested drainage against the area local-improvement classed aas district. they improvements, ments and incidental to defeat in all fairness be entitled should though Even may restrictions be absent opportunity That may Ch. 145 as to how far a them, however, by reason of the taken from go separate combining and distinct local placed fact that all requirements due purported in one The result district. process prohibit restrain and such combina- hopeless, a situation so understandable it is tions unreasonable, arbitrary as become particular property may that these owners capricious. Kamps, Wyo. Pirie v. 68 protest they though not have tried to even 927, 929, 229 P.2d 647; In 26 A.L.R.2d re might bonds if a voted bond Lutker, Okl.Cr., 274 P.2d See had election been held. generally discretion, to abuse of Thompson Conwell, Wyo., Casper, Wyo., In Gorrell v. cases cited statutory pro- therein. P.2d we discussed enlarged then in visions effect for an dis- If the combination is such that it effec- undoubtedly legislature trict. We said tively away any prop- takes from group of contemplated protest that a the owners erty opportunity owners a reasonable over one-half of situated in they defeat for which local-improvement either the district or the assessed, then it is unreasonable and enlarged (which district includes the small- arbitrary. The combination of er) prevent would be further sufficient to case, my ments involved in the instant proceedings. opinion I am still same opinion, clearly has that effect. expressed by court at the entire time, e., protest by i. that a the owners compel These considerations me take of over one-half of the area should smaller plain- position prevent proceedings. be sufficient to summary judg- tiffs has merit. I think the Subsequent to the decision and Gorrell ment for defendants should be reversed prior to the actions council in not affirmed.