Hensley v. City of Butte

MR. JUSTICE HOLLOWAY delivered the opinion of the court. This action was commenced in the district court of Silver Bow county by the plaintiff, Lavinia Hensley, against the city of Butte and the city treasurer to restrain them from selling certain real estate belonging to her, for taxes levied for special improvement purposes. The complaint, among other things, alleges that the plaintiff owned the property in controversy; that on March 1, 1899, the city council of Butte passed, for publication, council resolution No. 231 creating special improvement district No. 3, defining its boundaries and including plaintiff’s property therein, stating-the purpose for which the district was created, and fixing March 8, 1899, as the time when, and the council-room the place where, interested parties might appear and object to the final adoption of the resolution; that at such last-named time and place this plaintiff and other owners, representing more than one-half of the area of the property to be assessed to defray the cost of such improvement, did appeal be [210] fore the city council and did object to the final adoption of the resolution and to the making of such improvement; but notwithstanding this objection the city council assumed to pass finally such resolution, and thereby assumed to create such district, and afterward by resolution assumed to levy and assess against plaintiff’s property a tax of $465.06, and, the same not having-been paid, the city treasurer advertised her property for sale and will, unless restrained by the court, proceed to sell the same. A temporary restraining order and an order to show cause why an injunction pendente lite should not issue, were issued and served. The defendants answered specifically denying that the plaintiff or any of the property owners appeared before the city council and objected to the final adoption of the resolution, or to the creation of the improvement district, admitting some of the allegations of the complaint and denying others. Upon the hearing on the return of the order to show cause the plaintiff offered evidence in support of the allegations of her complaint which were put in issue. An objection was made by the city attorney to the introduction of any evidence by the plaintiff, upon the ground that she has a plain, speedy, and adequate remedy at law, under sections 4024, 4025, and 4026 of the Political Code, and therefore is not entitled to relief in equity. This objection was sustained, the temporary restraining order vacated and an injunction pendente lite refused. From the order so made the plaintiff appeals. There is but one question presented which requires consideration. The objection to the introduction of any evidence confessed, for the purposes of the objection, the truth of the allegations of the complaint which were sufficiently pleaded. The allegation in the complaint is, that the plaintiff and other owners, representing more than one-half the area of all the property which would be assessed to defray the cost of said improvement, did appear before the city council at the time and place mentioned in the notice, and “objected to the making of said improvements.” We think this allegation sufficient, and, being so, and the truth of it being admitted for the purposes of [211] the objection made, it is apparent that the city council had no authority to proceed to finally pass the resolution or to levy or attempt to collect the tax, and that such tax so levied was absolutely void under any circumstances. The city council assumed to proceed under the provisions of House Bill No. 204, approved March 8, 1897 (Session Laws, •1897, p. 212), section 31 of which, among other things, provides: “If at such meeting, objections are made to the making of such improvement, by owners, or agents representing more than one-half in area of all the property which would be assessed to defray the cost of said improvement, the improvements shall not be made at that time, and at no time during a period of six months thereafter.” Assuming that the same rule of law is applicable do an assessment for special improvements as applies to a general tax, the query is presented: Was the plaintiff’s remedy at law exclusive, or could she properly invoke equitable relief by injunction? This identical question was lately before this court in Montana Ore Purchasing Co. v. Maher, 32 Mont. 480, 81 Pac. 13, and sections 4023, 4024, 4025, and 4026 of the Political Code were construed. This court there said: “A consideration of sections 4023 and 4026 leads us to believe that the phrase ‘irregularly levied or demanded’ was used by the legislature advisedly, and as prescribing the limits wherein the statutory remedy is exclusive, as distinguished from those cases of illegal taxes the collection of which may be restrained by injunction. In other words, if the action of the assessor or board of equalization was such that the tax complained of is manifestly void under any circumstances, injunction will lie to restrain its collection; but, if the error complained of is only an irregularity on the part of the assessor, the board of equalization, or the treasurer, which may be subject to explanation so as to cure the apparent defect, or, in other words, where the tax complained of is not necessarily void under all circumstances, then the remedy provided by sections 4024 and 4025, namely, payment under protest and an action to recover back is exclusive, except in those unusual cases mentioned in section 4026.” [212] Applying that rule to the facts of this case, and it appearing that the assessment was void, plaintiff properly invoked the aid of equity, and the court erred in excluding testimony in support of the allegations of her complaint. The order is reversed and the cause remanded for further proceedings. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Milburn concur.