Bass v. City of Casper

• Decision Date: 11 April 1922
• Docket Number: 1056
• Citation: 28 Wyo. 387,205 P. 1008
• Parties: BASS v. CITY OF CASPER
• Court: Wyoming Supreme Court

205 P. 1008

28 Wyo. 387

BASS v. CITY OF CASPER

No. 1056

Supreme Court of Wyoming

April 11, 1922

Rehearing Denied July 20th, 1922, Reported at: 28 Wyo. 387 at 420.

APPEAL from the District Court, Natrona County; CYRUS O. BROWN Judge.

Action by Walter L. Bass on behalf of himself and of others similarly situated, against the City of Casper and its treasurer to enjoin the collection of special assessments for street improvements and to remove the cloud of title caused by said assessments. There was a judgment for plaintiff and defendants appeal. Other material facts are stated in the opinion.

Reversed and remanded.

R. M Boeke and Nichols & Stirrett, for appellant.

The only question involved is one of jurisdiction; the Wyoming statute provides notice and opportunity to object, 1, to the creation of the district, and 2, to the confirmation of the assessment roll; plaintiff failed to make any protest at any time but acquiesced in defendants action. The evidence is not pertinent for the reason that if the city had jurisdiction defendants are estopped in law to raise objections. If the city had no jurisdiction plaintiff was not required to file protest. The resolution of intention was sufficient to advise all taxpayers of the nature of the improvement contemplated; cases cited by respondent relate to statutes where but one notice is required, whereas two notices are required by our statute; the resolution of intention complied with the statute; the court erred in not sustaining the demurrer of defendants to the amended petition. The proceedings of the city are conclusive. (Sec. 1988, Comp. Stats.) The legislature has power to devise a means necessary for the levy of assessment for local improvements if notice constituting due process of law is given. (Watkinson v. Vaughn, 186 P. 753.) The court erred in not sustaining the motion for judgment on the pleadings. Not all of the requirements of the statute are jurisdictional; the resolution of intention conferred jurisdiction. (Hinzeman v. City of Deer Lodge, 193 P. 395; 1 Elliott, R. & S. 329; City of Bartlesville v. H. J. Holme, 9 A. L. R. 627; Kerket v. Bocher, 20 Okla. 729; Branting v. Salt Lake City, 153 P. 995.) The assessment must be made upon an estimate which may be more or less incorrect. (Supreme Court v. State, 43 Wis. 389.) The notices were sufficient to constitute due process of law. Plaintiff waived his right and is estopped by failing to make objections at the proper time. (Denver v. Dumas, 80 P. 114; Caldwell v. Mountain Home, 156 P. 909; Milliken v. Crail, 98 N.E. 291; Hansen v. Missouri Valley, 160 N.W. 340; Minnesota Co. v. Billings, 111 F. 972; Cooper v. San Francisco, 162 P. 631; Wahlgreen v. Kansas City, 21 P. 1068; Duffy v. Saginaw, 64 N.W. 581; Moore v. Yonkers, 9 A. L. R. 590; Partee v. Paving Co., 9 A. L. R. 606.) The statute is constitutional. (Webster v. Fargo, 181 U.S. 394.) The proceedings are not open to collateral attack. (Moore v. Yonkers, supra. Hildreth v. Longmont, 105 P. 107.) Objections that the property was not within the assessment district must be made if at all at the hearing upon the assessment roll and is not an object upon which to base a collateral attack. (Beckett v. Morse, 87 P. 408; Cosgrove v. Chicago, 235 Ill. 358; Wells v. Wood, 114 Cal. 255.) The judgment of the lower court should be reversed.

George W. Ferguson, and Michael W. Purcell, for respondent.

There is no evidence that the city has created improvement districts since 1915 under Chapter 120, Laws 1915, nor evidence that the city engineer computed the amount due, nor evidence that plaintiff acquiesced in the action of defendants in making the improvements. Plaintiff is not in the position of a property owner who knows that an improvement is being made which will be assessed against the property, and stands by and accepts the benefits and afterwards objects to paying for the improvement. The plans do not set forth the nature of the work in detail. There was no evidence that the bonds had been issued and sold. The alleged improvements were done under the provision of Chapter 120, Laws 1915. The resolution of intention was sufficient under the statute. 1971 Comp. Stats., and subsequent sections, 1972 to 1983 prescribed the form of procedure. Improvement district No. 4 embraces a number of parallel streets running both east and west and north and south. The city was without jurisdiction in disregarding the law in the formation of the improvement district; in the calculation of the amounts of the assessments and in the manner of levying the same; the cost of the alleged improvement is not chargeable to the property but should be paid out of the general fund. The resolution of intention was insufficient to confer jurisdiction. The statute was taken from Washington state. (City Seattle v. Jones, 163 P. 12.) The assessments should have been made under the Zoning method. If a district be formed under this law by two or more parallel streets, separate accounts of the cost should have been made. The statute requires the engineer to make the assessment whereas in the present case it is made by a mere employee; the assessment is void and subject to collateral attack. (Watkins v. Zwietusch, 3 N.W. 35; City of Whatcom v. Bellingham Co., 38 P. 163; City New Whatcom v. Bellingham Co., 38 P. 1024; Robertson Co. v. City Grand Forks, et al., 147 N.W. 249.) A grading assessment is void unless there be a legally established grade. (Joyes v. Shadburn, 13 S.W. 361; Brewster v. City of Peru, 54 N.E. 233; Chicago & N. P. R. Co. v. City Chicago, 51 N.E. 596; Craig v. Gannaway, 61 N.E. 1072.) A street grade can be established only by formal action of the city. (Leadville v. McDonald, 186 P. 715.) It must be made by resolution or ordinance. The resolution of intention must be certain in its terms. (25 R. C. L. 155; 28 Cyc. 998; Henderson v. City of Sheridan, 191 P. 350; Byers v. City of Sheridan, 191 P. 351.) The plea of estoppel is not well taken. The lack of reasonable certainty in the notice goes to the jurisdiction of the city to make the improvement. A complete description of the proposed work in the resolution of intention is not required in Belton v. Gilleran, 38 P. 881; Beck v. Ransome Co., 184 P. 431, was a paving case wherein the question of jurisdiction arose and the assessment held void for defects in the resolution of intention in not describing the nature of the improvements. Buckley v. City of Tacoma, 37 P. 441 sustained a collateral attack on the same ground, also Whitaker v. Deadwood, 122 N.W. 590. Parallel streets cannot be included in an improvement district. (Whitaker v. Deadwood, supra.) Collateral attack for insufficiency of the resolution in describing improvements was sustained in the following cases: Bennett v. City of Emmetsburg, 115 N.W. 582; Kirkville v. Coleman, 77 S.W. 120; City of Boonville v. Stephens, 95 S.W. 314; Cass v. Treasurer, 46 N.E. 729. Unauthorized action, even though acquiesced in will not estop the tax payer from attacking the assessment. (McQuillin Mun. Corps., 2120-2124; City of Bluffton v. Miller, 70 N.E. 989.) The following cases bear upon the question of the sufficiency of the description of proposed improvements to confer jurisdiction. (Kline v. Tacoma, 39 P. 453; Hawthorne v. Portland, 10 P. 342; Chicago v. Huleatt, 114 N.E. 1021; San Jose Co. v. Auzerais, 39 P. 859; City of Atlanta v. Gabbett, 20 So. 306.) Where no resolution of intention had been passed and lots were wrongfully included, the tax was held illegal. (Southern Surety Co. v. Jay, 178 P. 95; McRaven v. Clancy, 171 S.W. 88.) In City of Newport v. Klatch, 224 S.W. resolution of necessity held to be mandatory and jurisdictional where the contract was void, collateral attack sustained. (Ford v. Excelsior Springs Co., 223 S.W. 960.) Where no estimate of the cost had been made, held to be subject to collateral attack. Muskogee v. Samuel, 188 P. 669, also where the street had not been dedicated and accepted. (Allan v. Spokane, 184 P. 312.) Where the mayor had not signed the resolution. (Hinzeman v. Deer Lodge, 193 P. 395.) For insufficient notice. (Davis v. Commissioners, 137 P. 114.) Wrongfully including property, (N. P. Ry. Co. v. City of Walla Walla, 194 P. 962), and where lands were not taxable, (Raish v. University of California, 174 P. 952.) Where not more than one street was included in the district, (Hutchinson v. City of Omaha, 72 N.W. 218.) Collateral attacks were sustained against special improvement tax in the following cases: Seattle v. Seattle, 97 P. 1093; Rogers v. City of Salem, 122 P. 308; Liebermann v. City of Milwaukee, 61 N.W. 1112; Albuquerque v. Zeiger, 27 P. 315; Keys v. Neodesha, 68 P. 623. Curative acts in laws of this character may cure any defect that does not go to the jurisdiction of the board over the proceeding. (City Street Imp. Co. v. Pearson, 185 P. 962.) If the city be without jurisdiction the owner is not estopped from objecting to the assessment. (9 A. L. R. 778.) Jurisdictional defects were excluded from the operation of Section 1988 Comp. Stats. The curative sections of the act are unconstitutional. There was no authority for assessing the cost of curbing to individual property as no provision therefor appears in the statute. Such provision appears in the sidewalk statute, 2739 C. S. The requirements of the statute must be substantially obeyed or its service does not constitute the notice essential to due process of law. The law was not complied with in initiating the improvement process, since the resolution did not prescribe the proposed improvement. It is the plain intention of the law that the character, kind and extent of improvements should be stated to advise the tax payer of what should be done in order that he may make protest. We approve of the...