Whittaker v. City of Deadwood

McCOY, J. 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. — 542 — It is contended by the appellants that, after the city council of the -city of Deadwood had passed resolutions declaring suc,h public improvement necessary, more .than- a majority of the property owners affected by (such -special assessment filed with the city auditor written protests against such improvement. It appears from the record that the said public improvement comprises a total frontage of 7,475 feet and that within the time prescribed by section 1303, Rev. Pol. Code, owners of 3,374 feet of the property fronting on the portions of said streets intended to be paved filed their written protests against the said improvement. The plaintiffs further contend that 774 feet of the amount of said frontage is public property not liable for such special assessment, and should not be counted in estimating a majority of the ownership of the property affected, and that, after deducting the said 774 feet frontage, the protesting plaintiffs constituted a majority of the property owners affected by -such special assessment, and that by reason thereof the defendant, its city council and officers, had no authority or jurisdiction to proceed with or complete said special assessment. In this contention we are of the opinion that the plaintiffs are in error. It appears from the record that, of the said 774 feet claimed to be exempt from said ¡special assessment, 225 feet thereof belongs to the United States, and that the remaining 549 feet belongs to the city of Deadwood, the -school district of Deadwood, and Lawrence county; and, while we are of the opinion that the 225 feet owned by the United States government is exempt from said special assessment, we are also of the opinion that the property fronting on -such pavement owned by Lawrence county, the school district o-f Deadwood, and the city of Dead-wood is not exempt. A special assessment for a local improvement by a municipal corporation against the property of the county or municipality is not within the meaning of section 5, aid. 11, State Const., providing that the property of the state, county, and municipal corporations, both real and personal, shall be exempt from taxation. It has been held -by this court (Winona & St. P. Ry. Co. v. Watertown, 1 S. D. 46, 44 N. W. 1072) that special assessment for local street improvement is not taxation. It has been held .in many other jurisdictions under similar provisions that special assessment for local improvement is — 543 — not taxation, and that such special assessment is not in conflict with a Constitution or statute exempting such property from taxation. McLean County v. Bloomington, 106 Ill. 209; Adams Co. v. Quincy, 130 Ill. 566, 22 N. E. 624, 6 L. R. A. 155, and note; Society v. Mayor, 116 Mass. 181; Sioux City v. School Dist., 55 Iowa 150, 7 N. W. 488; Edwards & Co. v. Jasper Co., 117 Iowa, 365, 90 N. W. 1006, 94 Am. St. Rep. 301; Washburn & Co. v. Minnesota, 73 Minn. 343, 76 N. W. 204; New Orleans v. Warner, 175 U. S. 140, 20 Sup. Ct. 44, 44 L. Ed. 96; Yates v. Milwaukee, 92 Wis. 352, 66 N. W. 248. In McLean County v. Bloomington, supra, it is held that the municipality was authorized to make special assessment for local improvements, without restriction to the ownership of the property to be assessed. The power conferred upon cities to make special assessments under section 1299, Rev. Pol. Code, is not restricted as to the ownership of the property against which the levy may be made. 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 — 544 — and up just. The “front-foot” rule is estblished by the statute of this state (Rev. Pol. Code, § 1304), and the following of any other rule of computation would- be invalid. Bluffton v. Miller, 33 Ind. App. 521, 70 N. E. 989. The constitutionality of the “front-foot” rule has many times been assailed ip other jurisdictions, and the great weight of authority seems to be in favor of its validity. 28 Cyc. 1157. The identical statuté exists in North Dakota, and was assailed in Rolph v. Fargo, 7 N. D. 640, 76 N. W. 242, 42 L. R. A. 646, and again in Webster v. Fargo, 9 N. D. 208; 82 N. W. 732, 56 L. R. A. 156, and by able and exhaustive opinions held constiiu-tional. 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 — 545 — street is 43 feet wide, and that the actual cost of pavement varied from i$i.6o per front foot on West Lee to $9.49 on Main; but by including all these streets together in one paving district, and dividing the total expense by the toal number' of front feet on all the streets included in the district, the average cost per front foot is $7.64. A party owning a 25-foot lot facing Main street, and also abutting lengthwise 100 feet on West Lee (street, would pay $955 special assessment, while his neighbor, on an inside lot, of the same size, facing on Main street, would pay $191. The party whose lot abutted lengthwise on West Lee street, would pay $604 more than the cost of the 100-feet pavement abutting on'West Lee street, and which $604 would go to pay the expense of paving on Main or other wider street. We are of the opinion that 'the Legislature never contemplated any such inequality, and that no more than one street should be included in a single paving district. In some jurisdictions ft is held that streets of different widths may be joined in one improvement distinct. In speaking of this rule in Illinois, the court, in Springfield v. Green, 120 Ill. 269, 11 N. E. 261, and in Wilbur v. Springfield, 123 Ill. 395, 14 N. E. 871, says: “While many streets and parts of streets are embraced in one scheme of improvement adopted in the city, yet we regard them as parts of the ¡same improvement. The city authorities, in adopting the ordinance, must have found as a matter of fact that these streets were all similarly situated with respect to the improvement proposed, so as to justify1" the treatment of them as one single improvement. They were all to be paved with the same material in the ¡same manner, and the fact that there was a difference of a few feet in the width of some of them, in our opinion, would make no difference.” But if such streets were so situated as not to justify such procedure, by not being similarly situated and the difference in width being; very materially different, the Illinois court does not state what the rule would be. This rule in Illinois seems to be hedged around and qualified by such conditions that would make it inapplicable to the case at bar. It is contended further by appellants that the resolution by which the said special assessment was declared to be necessary did — 546 — not ¡sufficiently describe the improvement of work to be done, in that it did not •specify the thickness of the concrete foundation or the height of the curbing. While sectioji 1303 does not prescribe what the form or substance of the resolution shall be, yet it seems to be generally held, in the absence of statutory requirement, that the resolution must reasonably inform the property owner that he is to be a-ssessed, and must describe generally the nature and extent of the improvement, and the resolution may refer to plans and specifications on file. If the improvement is a sewer, the diameter should be stated ,and if a curbing, the height, length, and thickness, so that the property owner might determine for himself what the probable expense might be, in order that he might determine whether or not to enter protest against the improvement. 28 Cyc. 981; Atlanta v. Gabbett, 93 Ga. 266, 20 S. E. 306; Holden v. Chicago, 172 Ill. 263, 50 N. E. 181. Although this last case is based upon a statute of Illinois requiring that the ordinance should show the nature and description of the improvement, still this statute is the same as, and is not broader or different than, the jule in the absence of such a statute prescribing such form. We are of. the opinion that this objection to the said resolution is well taken— that a resolution of this character should specify the extent of the work or improvement, by showing height, width, and thickness, or should appropriately refer to the plans and specifications therefore then on file. The matter of the height or thickness goes to the extent of the improvement, and should be ¡stated in the resolution. 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, — 547 — by its express terms, is a competent part of and relates to the procedure of special assessments, and should be construed in connection with all the other parts of the statute relating to that subject. It seems to be generally held that a statutory provision 'of this character is mandatory, and constitutes a condition precedent to the making of such special assessment. 28 Cyc. 986; Hentig v. Gilmore, 33 Kan. 234, 6 Pac. 304; Moss v. Fairbury, 66 Neb. 671, 92 N. W. 721; Pound v. Chippewa Co., 43 Wis. 63; Boonville v. Cosgrove, 95 S. W. 314; Dallas v. Atkins, 32 S. W. 780; Ives v. Omaha, 51 Neb. 136, 70 N. W. 961; Henderson v. Omaha, 60 Neb. 125, 82 N. W. 315; Kirksville v. Coleman, 103 Mo. App. 215, 77 S. W. 120; Paterson v. Nutley, 72 N. J. Law, 123, 59 Atl. 1032. The plain import of the statute is that before any levy is made the city auditor .shall make a schedule showing all lots of land against which the assessment or levy is to be made, and showing an estimate of the amount which it may be necessary to assess against each lot. This must be done while the matter is in the “proposed” stage, and as a necessary step preceding the levy. The utility and purpose of such schedule is obvious. It furnishes a basis for the contract and levy, and after having been made becomes a public record for the inspection of interested parties, that they may be informed as to what is proposed to be done, what the estimated cost of the improvement will be, and what property is proposed to be taxed. This schedule or estimate, thus prepared by the auditor, by the express terms of the statute must be certified under oath of the auditor, and is the prima facie evidence of what property is liable to the special assessment. From the record it appears that no schedule of estimate, as required by section 1246 or otherwise, was ever made or kept on file by the city auditor, and we are of the opinion that without .such schedule and estimate the said contract and special assessments are absolutely void. 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. — 548 — ■ It is contended by respondents that some of the questions raised by appellants in their briefs are not sufficiently raised by proper assignment of error; and, while the assignments of error are not so specific iin some particulars as they might be, yet we are of the opinion that the assignments of error are sufficient to .raise all the questions .passed upon by this decision. 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.