30 Mont. 220 | Mont. | 1904
after stating the case, delivered the opinion of the court.
Two questions only are presented for out consideration: (1) Appellants contend that the statute authorizing the creation of this improvement district and providing what property should be assessed to defray the cost of the improvement is unconsti-’ tutional, in that it deprives the appellants of their property without due process of law. (2) It is contended that the city had no authority to proceed further after appellants and the other property owners had presented to the council their written objections in Exhibit B, above.
The particular objections urged against it axe that it fixes by arbitrary rule the proportion of the tax which a particular, piece of property shall bear, and that it affords no opportunity to the property owner to showr that in fact his property is not benefited to the extent of the tax imposed, and the following rule from 2
Much confusion and uncertainty have arisen from the diverse views expressed by different courts upon these statutes providing for special assessments to pay for improvements made by municipalities, and, no matter what rule has been adopted, great difficulty has been encountered in its application. "Who shall determine what property is actually benefited, and the extent of that benefit? And is the property owner entitled to a judicial determination of these questions ? In the paragraph succeeding the one quoted above, Dillon, in his work on Municipal Corporations, says: “(4) When not restrained by the constitution of the particular state, the legislature has a discretion, commensurate with the broad domain of legislative power, in making provisions for ascertaining what property is specially benefited, and how the benefits shall be apportioned.”
If, then, there are no constitutional restrictions in the way (and we are unable to find any in the constitution of this state), and nothing in the nature and circumstances of the particular case to make an assessment upon the property benefited in proportion to its superficial area work a manifest injustice, it may now be regarded as settled as within the competency of the legislature to provide that the assessment shall be so made (Dillon on Mun. Corp. Sec.. 761, Subd. 7; Adams v. City of Shelbyville, 154 Ind. 467, 57 N. E. 114, 49 L. R. A. 797, 77 Am. St. Rep. 484), and laws imposing this tax upon the property legislatively determined to be benefited, as in the Act under consideration, are not open to the objection that they deprive the owner of his property without due process of law. (2 Cooley on Taxation, 1181.)
This decision was immediately followed by Tonawonda v. Lyon, 181 U. S. 389, 21 Sup; Ct. 609, 45 L. Ed. 908; Webster v. Fargo, 181 U. S. 394, 21 Sup. Ct. 623, 645, 45 L. Ed. 912; Cass Farm Co. v. Detroit, 181 U. S. 396, 21 Sup. Ct. 644, 645,
In the present instance there is no allegation or proof that in the proceedings which resulted in making the improvement complained of and in assessing the appellants’lot for a portion of the cost thereof there has been any disregard of the provisions of the statute, or any city ordinance, or that appellants’ property has been charged differently from that of the other lot owners; nor is it alleged in the complaint that the portion of the cost of the improvement assessed against appellants’ lots in point of fact exceeded the benefits especially accruing to. their property by reason of such improvement having been made.
The complaint is made that only one-half of lot 10 was included in the resolution creating the district, but upon the hearing it was shown that as a matter of fact that lot had been assessed for its entire area, and that the assessments then due had been paid. So that, even assuming that a mistake was made in the description of lot. 10 above, plaintiffs are not in a position
We find no error in the record. The order is affirmed.
Affirmed.