Pool v. Town of Townsend

MR. JUSTICE HOLLOWAY delivered the opinion of the court., This suit was instituted to secure an injunction restraining the town of Townsend and the county treasurer, as ex-officio collector of taxes for the town, from enforcing the payment of a tax to defray the expense of certain special improvements made pursuant to proceedings taken by the town council in 1913. Plaintiff alleges that he is, and at the time special improvement district No. 4 was sought to be created was, the owner of fractional lots 5, 6, 7 and '8 in block 17, Original town site of Townsend, with an area of 14,069 square feet. The history of the" council proceedings is then recited, and it is alleged that on September 29, 1913, the council passed a resolution, levying a tax upon the property within the dis [303] triet, apportioning to plaintiff the amount of tax due upon his property upon the basis of 14,069 square feet, but that thereafter, in 1914, the council wrongfully, and without notice to plaintiff, changed the apportionment, and for that year levied the tax against his property upon the basis of 28,400 square feet of area; that plaintiff tendered the amount justly due, but the tender was refused, and defendants threaten to sell his property in order to realize the larger.' amount demanded. The answer admits that the tender was made' and refused, and that defendants intend to proceed to sell plaintiff’s property unless restrained, and generally denies all the other material allegations of the complaint. The trial resulted in a judgment in favor of plaintiff, and defendants appealed. In so far as plaintiff’s attack is directed to the procedure by the town council, it is without avail. The same questions were presented and determined adversely to the contentions made, in Harvey v. Town of Townsend, 57 Mont. 407, 188 Pac. 897. Defendants insist that plaintiff is estopped to complain [1] because he made no protest to the creation of the district; but there was no occasion for protest if plaintiff was satisfied, but his failure to protest against proceedings which involved a tax based upon an area of 14,069 square feet cannot be urged against his right to be heard to question the town’s authority to increase the area and his tax proportionately. He might have been willing in 1913 to pay the tax based upon an area of 14,069 square feet, and altogether unwilling to pay the tax for 1914 based upon an area of 28,400 square feet, and he certainly is entitled to be heard to question the council’s right to make the increase without his knowledge or consent. Upon the trial it developed that in addition to fractional lots 5, 6, 7 and 8, plaintiff owned certain fractional lots in the Potts-Harrison addition, which adjoin fractional lots 5, 6, 7 and 8, and that these two groups of fractional lots apparently make out four full-sized lots, though this does not appear defi [304] nitely. It appeared, further, that the boundaries of special improvement district No. 4 were intended to include the fractional lots in the Potts-Harrison addition, as well as the fractional lots in the original town site. The only controverted question now before this court involves the legality of the council’s proceedings in attempting to include the territory in the Potts-Harrison addition. If that addition was a part of the town at the time the district was created, plaintiff cannot complain. He is called upon to pay only his just proportion of [2] the expense. If, however, the addition was not a part of the town in 1913, and was not subject to the jurisdiction of the council for the purpose of creating the improvement district which included a portion of it, then plaintiff is entitled to be heard upon his contention that the tax based upon the area included in the ■ fractional lots in the addition is void ab initio. The record discloses that the plat of the Potts-Harrison addition was filed in the office of the county clerk and recorder of Broadwater county on August 4, 1908, but was not approved by the mayor and council of Townsend until April 30, 1914, several months after district No. 4 was created. Counsel for defendants insist that, even though the statute [3] was not followed, there was a common-law dedication and acceptance of the streets and alleys within the addition, and Kaufman v. City of Butte, 48 Mont. 400, 138 Pac. 770, is cited in support of the contention; but it is one thing to dedicate the streets and alleys to public uge as highways and quite another thing to bring the addition within the town’s limits and subject the property to the payment of town taxes. “In this state there is no common law in any case where the law is declared by the Code.” (Sec. 6213, Rev. Codes.) If, then, the Codes provide the means by which an addition becomes a part of a city or town and subject to its jurisdiction, the means so provided must be held to be exclusive. Section 3212, Revised Codes, provides: “Whenever territory adjoining any incorporated city or town is surveyed, and laid [305] off into streets or blocks as an addition thereto, upon filing the map or plat thereof in the office of the county clerk, said territory may become a part of such city or town, upon the approval of the mayor and a majority of the council indorsed thereon.” The meaning of this language is too plain to admit of doubt [4] or controversy. The filing of the plat did not operate to bring the addition within the town. It became a part of the town and subject to the jurisdiction of the council only when the plat was approved by the mayor and council and the approval indorsed thereon. Since this plat was not approved until long after district No. 4 was created, it follows, as of course, that the property of plaintiff within the Potts-Harrison addition was not a part of the town at the time the district was created, and was not subject to the jurisdiction of the council, and cannot be made subject to the payment of the tax sought to be imposed upon it. (Farlin v. Hill, 27 Mont. 33, 69 Pac. 239.) Counsel for defendants insist that the question just determined was not raised by the pleadings; but so far as the record discloses, plaintiff did not know upon what theory defendants refused his tender of the taxes due upon his property within the original town site. Furthermore, it does appear that the question whether the Potts-Harrison addition was within the town was injected into this proceeding by defendants themselves, as is indicated by the question propounded to the witness Louis K. Pool. In any event we think the question was properly before the court, even though plaintiff’s complaint might have been made more definite and certain. A great deal of evidence was introduced upon the subject, and plaintiff ought not to be subjected to a burden of taxation imposed by the council upon property not subject to its [5] jurisdiction. The judgment entered in this instance, however, restrains the collection of the entire tax, and in this respect is too comprehensive. [306] The cause is remanded to the district court, with directions to modify the judgment so as to restrain the collection of the tax in so far as it is computed upon an area in excess of 14,069 square feet, and, when so modified, will stand affirmed. Each party will pay his own costs of this appeal. Modified and affirmed. Mr. Chief Justice Brantly and Associate Justices Hurly and Cooper concur. Mr. Justice Matthews, being disqualified, takes no part in the foregoing decision.