Minnesota & M. Land & Improvement Co. v. City of Billings

• Decision Date: 21 October 1901
• Docket Number: 605.
• Citation: 111 F. 972
• Parties: MINNESOTA & M. LAND & IMPROVEMENT CO. v. CITY OF BILLINGS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

111 F. 972

MINNESOTA & M. LAND & IMPROVEMENT CO. v. CITY OF BILLINGS et al.

No. 605.

United States Court of Appeals, Ninth Circuit.

October 21, 1901

E. N Harwood, for appellant.

John B Clayberg and M. S. Gunn, for appellees.

The appellant was the complainant in a bill brought against the appellees to restrain the city of Billings from enforcing a special tax which by an ordinance of the city had been levied and declared a lien against the complainant's property. The bill alleges that the appellant was the owner of a large number of lots within the town site of the city of Billings and that that city, which is a municipal corporation of the state of Montana, created under and by virtue of an act of the legislative assembly of the territory of Montana entitled 'An act to incorporate the city of Billings,' approved March 10, 1885 (Laws 1885, p. 147), did, by resolution adopted and passed by its city council and approved by the mayor of said city on July 13, 1893, set apart, create, and establish as an improvement district designated 'Improvement District No. 1,' all of the territory embraced within the corporate limits of the city, and that thereafter, by an ordinance adopted and passed by the said city council and approved by the mayor on July 14, 1893, entitled 'An ordinance providing for the payment of the expense of improvements in improvement district No. 1, and prescribing the manner of proceeding therein,' a tax of $2.70 was assessed upon each and every lot of the area of 25 by 140 feet within said improvement district No. 1, and a proportionate amount upon each fractional part of a lot, which ordinance proceeded to prescribe the manner of assessing, levying, and collecting said tax. The bill sets forth the steps taken to collect and enforce the payment of the tax, and alleges that the appellant's property is about to be sold in such proceedings. It alleges, also, that the tax was illegally and wrongfully assessed and levied upon the appellant's property; that said special tax was levied for the purpose of creating a fund to construct drainage ditches within the said district, and extending beyond the corporate limits of the city; that the construction of said ditches is not authorized by any provision of the charter of said city or any statute applicable thereto; and that the creation of said improvement district was beyond the corporate powers of said municipality. Upon the issues created by the answer, and upon the proofs taken, the court found the equities to be with the appellees, the defendants therein, and dismissed the bill.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge, after stating the case as above, .

The validity of the proceedings whereby the special tax was levied by the city of Billings is challenged upon several grounds, one of which is that the statute which authorized the same violates the provision of the constitution of the United States which prohibits any state from depriving any person of property without due process of law, for the reason that it permits the exclusion of the consideration of the benefits of the improvement to the property which is to bear the burden thereof. The statute (section 440g) provides that the city council shall enact by ordinance that the expense of such improvements shall be paid by the entire district; each lot therein to pay by special assessment the quotient found by dividing the whole expense by the entire number of lots; the assessment on each lot to be proportioned to its area. But section 428 of chapter 22, as amended by the act of 1893, provides as follows:

'For the purpose of payment of expenses, including all damages and costs incurred in taking of private property, and of making any improvement mentioned in the preceding sections, the city council may by resolution levy and assess the whole or any part not less than half of such expenses as a tax upon such property as they shall determine is specifically benefited thereby. ' Laws 1893, p. 130.

The same section makes further provision requiring the publication of the resolution and notice of the time when the city council shall meet to hear objections which may be made to the assessments. The meaning of the statute is that the city council is only authorized to assess and levy the expense of making the improvement as a tax upon such property as they shall determine is specifically benefited thereby, or, in other words, there must be in the creation of an improvement district a determination as to what property would be benefited thereby, and only such property may be included therein. This seems the reasonable construction of these provisions of the statute, but, if the provisions of section 440g are to be taken as standing alone and unaffected by any other section, they still do not create an assessment which is void, or which takes the property of the taxpayer without due process of law; nor is Village of Norwood v. Baker, 172 U.S. 269, 19 Sup.Ct. 187, 43 L.Ed. 443, authority to the contrary. That case involved the validity of a village ordinance which imposed upon the abutting property the entire cost of opening a street through the premises of a single property owner, whose land was condemned for the street. There had been no legislative determination as to what lands were benefited, no inquiry concerning the benefits by the village council, and no opportunity to the abutting owner to be heard on that subject. The court held that the exaction from the owner of the entire cost of the public improvement, in substantial excess of the special benefits accruing to him, was, to the extent of such excess, a taking of private property for public use without compensation. The limits of the doctrine of that case have been defined by the supreme court in the recent decision of French v. Paving Co., 181 U.S. 324, 21 Sup.Ct. 625, 45 L.Ed. 926,-- a case which involved an assessment substantially identical with that which is under consideration in the case at bar. It was a case where the cost of a pavement was apportioned, as against the lots fronting thereon, under a charter which required that the total cost of the work should be apportioned as a charge against the abutting lots according to their frontage on the improvement, without reference to any benefits which might accrue to the property upon which the charge was made. It was contended, under the authority of Village of Norwood v. Baker, that such assessment was void; but the court held otherwise, quoting with approval Dill. Mun. Corp. Sec. 752, as follows:

' * * * Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the abutting or other property specially benefited, and, if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of their lots, is, according to the present weight of authority, considered to be a question of legislative expediency.' The decision in French v. Paving Co. clearly determines the present question adversely to the appellant's contention.

The appellant denies the authority of the city to include the whole city in a single improvement district. The statute under which the improvement was made and the tax was levied as amended by section 1 of the act of 1893, authorizes the city council 'to create special improvement districts, within the city, designating the same by number, and to change the boundaries of said districts from time to time as the city council may deem expedient. ' Laws 1893, p. 121. This provision should be construed with reference to the object which was intended to be accomplished. It is contended by the appellant that because the word 'districts' is used in the plural, and authority is given to create special improvement districts 'within the city,' and to designate the same by number, the statute can only be complied with by creating at least two districts, and that the inclusion of the whole city in a single district is absolutely without authority of law. We think the statute should not be thus narrowed in its construction. It was intended to confer the broad power of creating special improvement districts, commensurate with the improvement which was required to be made therein. The word ...