23 S.D. 538 | S.D. | 1909
This action involves the validity of certain special assessments made for local improvements in paving certain streets in the city of Deadwood, The plaintiffs, protesting property owners affected by such assessments, brought this action in the circuit court of Lawrence county for t(he purpose of having set aside and declared unlawful the said assessments, and to permanently enjoin the city treasurer from collecting the same. The defendants answered, and a trial was had before the circuit court without a jury, resulting in findings and judgment in favor of the defendants. The plaintiffs, as appellants, bring the cause to, this court by appeal, challenging the legality of the findings and judgment of the trial court.
It is further contended by the appellants that, when the resolution to declare the said public improvement necessary was before the city council, no yea and nay vote was taken upon the passage of said resolution, as required by section 1209, Rev. Pol. Code; but in this contention we are of the opinion that the appellants are in error. It appears from the .record that the city auditor made the following entry ip the minutes of the proceedings relative to the passage of said resolution: “Roll was called on the above resolution, with the following result: Members voting in favor of said resolution: Messrs. Fargo, Croghan, Benner, Moffitt, Schlicht-ing, Seim, Treber, a,nd Hogarth. The entire council being present and voting, the resolution was declared passed.” It was held in the case of Milbank v. Surety Co., 21 S. D. 261, 111 N. W. 561, that a resolution with the same record thereof as in the case at bar was in substantial compliance with section 1209, Rev. Pol. Code. It appears from the record that the city of Deadwood has eight members of the council. It appears that eight members voted in favor of this resolution. That' is equivalent to1 stating that eight members voted yea.
Plaintiffs attack the “front-foot” rule for computing the amount of the special assessment against each parcel of land as unequal
Appellants further contend that the special assessment in question is void, because more than one street, and streets of different widths, were included in the resolution and in the same paving district. In this contention we are of the opinion that appellants are right. This speqies of special taxation, under whatever rule, is fraught with such opportunities of confiscation and inequality that justice to property owners demand's that statutes on this subject should receive a strict construction, and that every statutory requirement should be strictly complied with, and construed to the -end that inequalities and confiscations should be reduced to the minimum. We are of the opinion that under section 1303, Rev. Pol. Code, po authority or power i;s granted to include more than one street in a single pavement iniprovement or district. The language of the statute is: “Whenever á city council shall deem it necessary to pave * * * or otherwise improve any street, alley, or highway * * * within the city limits, for which a special assessment is to foe levied, the city council shall by resolution declare such work or improvement necessary. * * *” We think the legislature used the ¡singular “street” advisedly and intentionally, and could not have intended that.two or more streets of unequal widths might be coupled together and made to constitute a single assessment district, thereby compelling the property owner of a little, narrow, cross or side street to- pay a portion of the expense of paving the big, wide main street. Hutchinson v. Omaha, 52 Neb. 345, 72 N. W. 218. It appears from the record that the paved' portion of West Lee street is 8 feet wide, and that the paved portion of Main
It is contended further by appellants that the resolution by which the said special assessment was declared to be necessary did
It is next contended by the appellants that the assessments in question are void because the city auditor did not have on file an estimate of the work to be done. Section 1246, Rev. Pol. Code, provides that: “The city auditor shall make or cause to be made an estimate of the work proposed to be done by the city, * '* * and before the levy by the city council of any special tax upon property in the city, of any part thereof, shall report to the city council a schedule of all parcels or lots of land which may be subject to the proposed special tax or assessment, and also, the amount of such ¡special tax or assessment which it may be necessary to levy oh such lots and parcels of land.” This section of our statute,
It is further contended -by appellants that the resolution declaring the said pavement necessary, passed April 8, 1907, and under which said contract was made and said work done, was repealed by a subsequent resolution, passed June 3d following; but we are inclined to the view that the subsequent resolution was intended as supplementary or amendatory to the resolution of April 8th.
The judgment of the circuit court is reversed, and the cause renianded, and the circuit court is hereby ordered and directed to enter judgment permanently enjoining the collection of .said special assessments.