McKenzie v. City of Mandan

Bruce, J. This case has been here before. 27 N. D. 546, 147 N. W. 808. On the former appeal we held that the provisions of § 2780, Revised Codes 1905, Comp. laws 1913, § 3705, that the. city council “may require bidders to state the rate of interest the warrant shall bear” were mandatory. We, however, incidentally stated that the defect in the advertisement in this respect might be cured by the fact that all the bids were in fact lipón a cash basis and gave the rate of interest which the warrant, if any, should bear. The present appeal is from an order sustaining’ a demurrer to the answer and entering judgment in favor of the plaintiffs. The question at issue is the sufficiency of paragraph 4 of the answer, which alleges that; “as to paragraph 8 of said complaint, the defendant admits that the advertisement for bids did not call for bids upon a cash basis or require the bidders to state the rate of interest the warrants should bear to be accepted by them in payment for the work, but defendant alleges the fact to- be that the said assessment is not invalidated by the said omission for the reason that part of the proposals for bids which the city commission acted upon and considered at the time of the awarding of the contract was in fact upon a cash basis, and the rate of interest was in fact stated in the said proposals for bids.” We are satisfied that the allegation of the answer was not sufficient [109] to overcome the objection raised in 27 N. D. 546. We have no means of knowing the nature of the other bids and therefore of knowing the full effect of the omission in the advertisement. The advertisement being irregular, the burden of proof and of allegation is certainly upon the city to show that no detriment was occasioned thereby. Counsel for respondent also raises the question that the language used in the opinion in 27 N. D. 546, was too sweeping and should be modified so as to state that a defect in the advertisement can in no event be cured, even though all the bidders bid upon a cash basis and state the rate of interest, if any others are precluded from bidding on account of a belief that, because of the defect in the advertisement, any contract that would be entered into would be illegal. We believe that there is merit in this contention, and that the language of the opinion should be so modified. Our conclusion from what we have above stated is that the trial court did not err in sustaining the demurrer to the complaint. We are of the opinion, however, that he should not have entered the judgment which is appealed from, and that our statutes do not contemplate that one who has been benefited by an improvement shall escape all liability because of an error or omission in the proceedings. Section 3713, Comp. Laws 1913, provides that “in all cases where any assessment, or any part thereof, as to any lot, lots or parcels of land assessed under any of the provisions of this article, or of any law of any city prior to this article, for any cause whatever, whether jurisdictional or otherwise, shall be set aside, or declared void by any court, the city comicil shall, without unnecessary delay, cause a reassessment or new assessment to defray the expense of such improvement to he made, . . . and in all cases . . . where any court shall hereafter set aside or declare void any assessment upon any lot or parcel of land for any cause, the said lot or parcel of land may be reassessed or newly assessed from time to time, until each separate lot, piece or parcel of land has paid its proportionate part of the costs and expenses of such improvement, as near as may be; provided, that when any special assessment shall be declared void, or set aside by judgment of the supreme court, for a cause affecting other like assessments, all assessments so affected may he vacated by resolution of the city council, and thereupon a reassessment of the property affected [110] thereby shall be made as herein provided, and may bear interest as* hereinbefore provided.” Section 3714, Comp. Laws 1913, provides that “no error or omission which may be made in the proceedings of the city council, or of any officer of said city in referring, reporting upon, ordering or otherwise acting concerning any local improvement provided for in this article, or in making or certifying any assessment, shall vitiate or in any way affect aivy such assessment, but if it shall appear that by reason of such error or omission substantial injury has been done to the party or parties claiming to be aggrieved, the court shall alter such assessment as may be just and the same shall then be enforced Section 3715, Comp. Laws 1913, which seems directly applicable to the present action reads as follows: “Whenever any action or proceeding shall be commenced and maintained before any court to prevent or restrain the collection of any special assessment or part thereof, made or levied by the officers of any city for any purpose authorized by law, . . . and such assessment shall be held to be void by reason of noncompliance with this article, the court shall determine the true and just amount which the property attempted to be so assessed by said special assessment should pay, to make the same uniform with other special assessments for the same purpose, and the amount of such assessments as the same appears on the assessment list thereof, shall be prima facie evidence of such true and just amount, and judgment nmst be rendered and given th&refor against the party liable for such special assessment, without regard to the proceedings had for the levy thereof, and such judgment shall be a lien upon the property upon which a special assessment shall have been levied, of equal force and effect as the lien of special assessments, and the lien of such special judgment shall be enforced by the court in such action; provided, that no action for either of said purposes shall be maintained unless it is commenced within six months after such special assessment is approved, and in case of such assessment heretofore approved, within six months after this article takes effect.” . It seems clear from a perusal of these statutes that instead of entering the judgment appealed from, the court should have made a reassessment as far as the plaintiff is concerned under the provisions of § 3715, and upon the canceling of the tax or special assessment for [111] merly levied should have required the payment of this new amount. The statute requires, in such a case, an assessment against the objector of “the true and just amount which the property attempted to be so assessed by said special assessment should pay, to make the same uniform with other special assessments for the same purpose.” It is clear, however, that in determining the amount the plaintiff shall pay, the total cost of the improvement should not be arbitrarily fixed at the amount actually paid for the work or at the amount of the bid which was accepted, but at the reasonable cost of such improvement, but not exceeding the contract price. The judgment of the District Court is reversed and the cause is remanded for further proceedings according to law and as outlined in this opinion.