Armstrong v. Ogden City

Zane, C. J.: This is an appeal from an order of the court below sustaining a general demurrer to plaintiffs’ complaint, in which numerous facts are alleged, and a prayer for an [258] injunction restraining the levy of a tax for paving Twenty-Fifth street, in district No. 2, in Ogden City, and from a judgment of the court against the plaintiffs after they had ■elected to stand on their complaint. The plaintiffs claim-that the facts stated in the notice of intention to levy the ’tax were insufficient to authorize the levy. It is as follows: ■“ Notice of intention of the city council of Ogden City of creating a district for paving, and of paving and macadamizing the streets therein, and to defray the expenses of ■such improvement by local assessment. The city council ■of Ogden City, in the Territory of Utah, gives notice that it intends to make the following improvements, to wit: Pave and macadamize the following streets: Twenty-Fifth street, from the west line of Washington avenue to the west line of Wall avenue. This shall be known as ‘ Paving District No. 2.’ The boundaries of the district to be ■affected and benefited are lines running 150 feet back, and parallel with the outer lines of each side of the streets on «ach and every block, and for the full length thereof, therein. The estimated cost of such improvement is $40,000. For the payment of the costs and expenses thereof, the city council intends to levy local taxes upon the real estate lying and being within said paving district to the extent of the benefits to such property by reason of such improvements. The city council will, on March 29, 1892, at 10 a. m., hear objections in writing from any and all persons interested in said local assessments. By order of the city council. T. P. Bryan, City Recorder.” The statute requiring the notice and prescribing the statements it shall contain is as follows: “In all cases before the levy of any taxes for any improvements provided for in this áct, the city council shall give notice of intention to levy said taxes, naming the purpose for which •the taxes are to be levied, which notice shall be published at least twenjy days in a newspaper published within such [259] city. Such notice shall describe the improvements so proposed, the boundaries of the district to be affected or benefited by such improvements, the estimated cost of such ' improvements and designate the time set for such hearing. If at or before the time so fixed written objections to such improvements, signed by the owners of one-half of the front feet abutting upon that portion of the street, lane, avenue or alley to be so improved, be not filed with the recorder, the city council shall be deemed to have acquired jurisdiction to order the making of such improvements." Sec. 13, cap. 41, of Laws of 1890. The same language is found at section 1800, 2 Comp. Laws of 1888, except written objections are required, signed by the owners of one-half in value of the. property to be affected or benefited as shown by the last assessment roll. In the notice set forth in the complaint, the intention to levy the tax is expressed, and the purpose of the. tax, the description of the improvements proposed, the boundaries of the district, the estimated. cost, and the time set for such hearing,' aré" all given with sufficient certainty. The plaintiffs also alleged in their complaint that the owners of one-half of the front feet abutting on the street named filed with the recorder written objections to the improvements in question before the time designated in the notice for hearing objections to them. The demurrer admitted this allegation. The filing of such objections, in writing, as alleged, signed by the owners of one-half of the front feet abutting on the street, deprived the city council of jurisdiction to order the improvements. We are of the opinion that the court erred in sustaining the demurrer to the plaintiffs’ complaint, and in entering judgment against the plaintiffs. The judgment and order appealed from are reversed, and the cause is remanded, with costs to plaintiffs. BartCH, J., concurred.