218 P. 1049 | Mont. | 1923
delivered the opinion of the court.
On March 2, 1923, the city council of Helena duly passed a resolution of intention to create special improvement district No. 139, in < said city, for the paving of Neill Avenue, from Park Avenue to Main Street, and certain described portions of Main Street and Fuller and Sixth Avenues. In fixing the limits of the proposed district, the platted boundaries of the several parcels of land embraced therein were not followed, but a line was fixed at a distance of twenty-five feet from the front of the streets to be improved — that is, the district embraced a strip twenty-five feet wide along each side of the included streets. The total area of the district
Within the time designated in the resolution when objections and protests against the creation of the district could be made, the plaintiffs, and other property owners, representing 62,618 square feet of the land embraced therein, filed their protests. In due time the city council considered the protests filed, determined that they were insufficient in area to affect the proceeding, and thereupon finally passed the resolution of intention, and also a resolution creating the district. Thereafter a contract for the construction of the
On May 29, 1923, the plaintiffs commenced this suit, seeking to have the action of the city council in creating this special improvement district and in entering into the contract with the defendant construction company declared null and i void, and to enjoin the defendants from proceeding further thereon. Upon the filing of the complaint, an order was issued requiring the defendants to show cause why the prayer of the complaint should not be granted. To this complaint the defendants filed an answer on June 15. The order to show cause came on for hearing on the nineteenth day of June, whereupon the defendants filed a motion to quash the same, on the ground that the complaint did not state facts sufficient to warrant the issuance of an injunction. The matter was argued to the court and submitted under stipulation of counsel that final judgment might be entered upon the merits. On June 21 the court made an order sustaining the motion to quash the order to show cause, and directed judgment on the merits to be entered in favor of the defendants. In accordance with this order, judgment was entered on June 22, from which the plaintiffs have appealed.
The first contention of plaintiffs is that the city council did
As to the area embraced in the lots set aside for park purposes: The power to determine whether or not the public interest or convenience requires the creation of a special improvement district is vested in the city council by section
'While counsel state in their brief that “this is but an arbitrary declaration of the legislature, attempting to confer upon the city council a power which it does not itself possess,” no authority is cited to sustain the statement, and we can perceive no reason to support it. If the city property is required to share its proportionate part of the expense of the improvement, there is no more reason why it should be excluded in determining whether sufficient protests have been filed than there would be if it was held in private ownership.
The legislature having declared that property owned by a county, city or town shall be considered the same as other property in determining whether sufficient protests against the creation of the district have been filed, it would seem to follow that it intended that such property should be assessed tbe same as other property to pay for the improvements; but, irrespective of such a legislative declaration, by the decision of this court in City of Kalispell v. School District No. 5, 45 Mont. 221, Ann. Cas. 1913D, 1101, 122 Pac. 742, this- state is committed to the doctrine that the property of a public corporation is subject to assessment for special improvements,
As to the strip of land owned by the Great Northern Rail-
The answer in paragraph 3 denies “That such strips or parcels of ground are excluded from assessment by the city of Helena, and denies that such strips or parcels are not liable for the payment of the cost of special improvements contemplated by said resolution.” And in paragraph 5 it alleges: “That in truth and in fact, and in legal effect, by virtue of the agreement between the city of Helena and the Great Northern Railway Company with reference to the parcels of land described in paragraph 9, the city of Helena itself * * * is liable for the payment of the tax or special improvement assessment for the special improvement district contemplated by said resolution against the said lots or parcels described in paragraph 9 as being the property of the Great Northern.” And in paragraph 8 of the answer it is alleged: “That said lots and parcels are to be and will be assessed, and said assessment will be paid by the city of Helena, in the same proportionate amounts as the assessment upon the other lots in said district are paid.”
The contract between the city and the Great Northern Railway Company is not made a part of the pleadings, and all that the record discloses concerning it is set forth in
Plaintiffs’ next contention is that the action of the city
The city council is authorized by section 5227, Revised Codes of 1921, to fix the boundaries of the special improvement district to be created, and there is nothing in the statute which indicates that the size of the lot actually owned by the individual shall determine what portion thereof shall be included. Having the power to fix the boundaries of the district, the council must have the right to fix the same, independently of the ownership of the particular tracts or
As to a great majority of the lots embraced in the district, the ratio between the frontage and area is substantially different; for instance, the block on the east side of Main Street, between Eighth Avenue and Sixth Avenue, is divided into fourteen lots or parcels of varying widths. The depth of the lot on the north end of the block, whose side extends along Eighth Avenue, is eighty-six feet, while the depth of the lot on the south end of the block, whose side extends along Sixth Avenue, is 123.1 feet. The increase in the depth of the lots from Eighth Avenue to Sixth Avenue is constant, so that in every instance the south line of a lot is longer than its north line.
The area of a lot with a twenty-five feet frontage on Main Street at the north end of this block would be approximately 1,914' square feet, while the area of a lot with similar frontage at the south end of the block would be approximately 2,462 square feet, or a little more than twenty-three per cent greater than the area of the lot at the north end. Yet it does not appear from the record but that the benefit to the two lots is equal. So that to have included the total area of each of these lots in the district would have made the lot at the south end of the block pay over twenty-three per cent more than the lot at the north end of the block for the same benefit; whereas, by including only the front twenty-five feet of each of these lots, the cost for equal benefit will be substantially identical. What is true of the lots in this block is likewise true of a large majority of the lots in the entire district, as shown by the map.
Under the facts of the case it cannot be successfully asserted that the council, in fixing the boundaries of the district as it did, abused its discretion or acted in an arbitrary manner.
Section 5226, Revised Codes of 1921, provides: “The city council is hereby authorized and empowered to create special improvement districts, and order the whole, or any portion or portions, either in length or width, or any one or more of the streets, avenues, alleys * * * of any such city, * * * paved or repaved, * * * surfaced or resurfaced. # * * >> And section 5227, regarding the resolution of intention, provides: “The city council may include in one proceeding under one resolution of intention and in one contract any of the different kinds of work mentioned in this Act, and any number of streets and rights of way, or portions thereof. ’ ’
Whether the construction of the improvements in question would result in special benefit to the various' lots and parcels of land embraced in the district was primarily a question for determination by the city council “and its order for the construction of the improvements at the expense of the abutting property owners was a determination that plaintiffs’ property is specially benefited — a determination with which the courts will not interfere, except upon the ground of fraud or such manifest abuse of discretion as amounts to arbitrary action.” (Stettheimer v. City of Butte, 62 Mont. 297, 204 Pac. 1039.)
Since there is no element of fraud in the ease, it is only
It is a matter of common knowledge that the value and
What is said of Neill Avenue is equally applicable to the portion of Sixth Avenue in question, which, according to the map, likewise connects Main Street with what appears to be the platted portion of the western part of the city of Helena. These and other proper considerations may have
The burden was upon plaintiffs to make a showing that
The judgment of the district court of Lewis and Clark county is affirmed.
Affirmed.