Bass v. City of Casper

• Decision Date: 20 July 1922
• Docket Number: 1056
• Parties: BASS v. CITY OF CASPER
• Court: Wyoming Supreme Court

208 P. 439

28 Wyo. 387

BASS v. CITY OF CASPER

No. 1056

Supreme Court of Wyoming

July 20, 1922

28 Wyo. 387 at 420.

Original Opinion of April 11, 1922, Reported at: 28 Wyo. 387.

Rehearing denied.

BLUME Justice. KIMBALL, J., concurs. POTTER, C. J., being ill, did not participate in the final consultation herein.

OPINION

ON PETITION FOR REHEARING

BLUME Justice.

1. Counsel for plaintiff have argued one point at greater length than heretofore and have gone into greater details in regard thereto. Their contentions, in short, as we understand them are these: that under the zone assessment system, as contemplated in Section 1984 of our statute, the outer limit of the fifth zone necessarily is the outer limit, laterally, not only relative to any particular street, but in an absolute sense; that therefore, under the law, no more than one street, generally speaking, can be embraced in a district; that in no event can parallel streets be so included; that since these provisions, which are claimed to be jurisdictional, have been violated, the council necessarily adopted an arbitrary method of assessment, which, therefore, is not only illegal, but unconstitutional, as well. Several opinions decided by the Supreme Court of the United States are cited, that an arbitrary method of assessment will not be tolerated. Counsel call especial attention to that portion of said Section 1984 of our statute, reading as follows:

"The fifth subdivision shall include all lands, if any, within the district lying between a line drawn parallel with and 120 feet from said street margin and the outer limit of said local improvement district as hereinbefore described."

Of course, there may not be any fifth, or any fourth, zone, by reason of the depth of the lots, but in order not to further obscure a subject already sufficiently obscure, we shall leave that factor out of consideration, except to say that were it not for the italicized clause referring to the fifth zone, there would be no possible ground for the contention of counsel. This italicized clause would seem to lend color to the claim of counsel, and, anxious to arrive at conclusions only that are right, we have given full and careful reconsideration to this subject. And in view of the importance of this clause, we shall not apologize for the length of this opinion on rehearing.

We have shown fully, in the original opinion herein, that several sections of our statute clearly contemplate that more than one street may be embraced in a district. We cannot ignore these provisions of the law, and must, if possible, give effect to them. We must, therefore, if we can, construe Section 1984 in harmony therewith, so that all provisions of the law on this subject may stand. Counsel have attempted to elucidate the subject. They say:

"There necessarily must be two sets of zones, and only two, paralleling the street on which the improvement is made, and which will include the entire area of the district. They need not necessarily be in straight lines; that is to say, they may change directions, and thus turn into another street, and another, so long as this one system of parallel zones is maintained."

Unfortunately, the explanation is not adequate. Make a map with streets and blocks. Suppose a street, and its parallel zones, running north and south. Then, at the northern point, turn to the west along a street running in that direction at an angle of 90 degrees. The zones cannot be kept parallel and continuous. One zone area, under the law, will overlap another at the turning point to the extent of the distance of one half block, stretching from the turning point on the north to the south, on the westerly side. The nearer the angle of change is to 180 degrees, the less of the zone area will overlap. Theoretically, therefore, in order to keep to the "one system of parallel zones," only one street, with substantially no change of direction, could be included in the district, and the provisions of law that more than one street may be embraced therein would be absolutely nugatory. If the council of a city should desire to improve all the streets surrounding an ordinary city block, it would be compelled, if counsels' theory is correct, to create at least two, and probably four, separate improvement districts--a conclusion to which, unless the law is clear, we should not want to subscribe. Nor are the general economic features persuasive of counsels' view. They contend that under our law a man living on one street where little grading is done should not be compelled to help pay for making a fill on a parallel street five blocks away. They would admit that a street, running, for instance, north and south, for a distance of five blocks, may be included, for improvement purposes, in one district. Little work may be necessary to be done on the south end thereof, but a great fill may have to be made at the north end. Still, counsel would admit that the man living at the south end could be assessed for part of the heavy expense made necessary at the north end, even though his route of travel might seldom lead in that direction. It might well happen, that an improvement, made five blocks away on a parallel street, would be of much greater benefit to him than the improvement made on the north end of the street on which he lives.

If we substitute the plural "streets" for the singular "street" in Section 1984, as we are authorized to do under Section 1968 and other sections of the statute, and leaving out all words and sentences not necessary for a clear understanding of the point under consideration, the first part of Section 1984 would read about as follows:

"The assessment district shall include all the property between the termini of said improvement, abutting upon or proximate to the streets proposed to be improved to a distance back from the marginal lines thereof to the center line of blocks facing or abutting thereon. All property included within said limits shall be held to be the property specially benefited by such local improvement and shall be the property to be assessed to pay the cost and expense thereof, which cost and expense shall be assessed upon all of said property so benefited in accordance to the special benefits conferred on such property in proportion to area and distance back from the marginal line of the streets improved. Said local improvement, for the purpose of ascertaining the amount to be assessed against each separate lot, shall be divided into subdivisions or zones, paralleling the margin of the streets to be improved."

Then follow the provisions providing five subdivisions, and including the provisions for the fifth zone or subdivision above quoted. Thus far and thus read, it would seem clear that this section in no wise bears out the contention of counsel, but sustains the contrary view thereof.

The primary purpose of this section is to fix and determine what in Section 2031 is called the "assessment zone" which includes five zones or subdivisions, and to fix the relative proportion of benefits to them and the amounts each of these subdivisions respectively shall pay. The clause relied upon by counsel that the outer limit of the fifth zone is the "outer limit of said local improvement district as hereinbefore described," must therefore be construed in that light. The words "as hereinbefore described" refer to the previous provisions of Section 1984, and, as we have seen, these provisions may well be held to contemplate that various streets, including parallel streets, may be included in the district.

The section, after defining the relative position and area of the first four zones, proceeds, in the clause mentioned, to define the relative position and boundaries of the fifth zone. It is clear, therefore, that the purpose of the section is not to define the boundaries of the whole district as such, but the boundaries of zones or subdivisions, and whatever is said in connection with the fifth zone as to outer limits is said relative to the marginal line of the street, and the inner line of the fifth zone, and further, in order to determine what, for purposes of assessment, should be computed as part of the area of the fifth zone adjacent to a street. In other words, it would seem that the term "outer limit of said improvement district" is equivalent to the outer limit of the "assessment zone, " referring to the relative position which this limit bears to the particular parallel street to which it is immediately adjacent. In a sense at least, the outer line or margin of the fifth zone must necessarily, for assessment purposes, everywhere and at every point, no matter along what street, be the outer limit of the district relative to the street immediately adjacent. Where there is an alley, this alley divides one zone area from another; if there is no alley, the two adjoining subdivisions called "fifth" are still divided by an imaginary line, they belonging, for assessment purposes, to two different zone areas. Hence we conclude that the term "outer limit of the local improvement district" seems to be used as a term relative to a particular street, and was intended to designate the outer limit of the zone area adjoining such street. In this way--and we know of no other--force and effect may be given to the apparently conflicting provisions of the statute. The question, in short, simply is whether the term "outer limit of the local improvement district" shall be understood in a relative sense or in an absolute sense. In view of all the provisions of the law, while the question is not, perhaps, free from doubt, we incline to the former view. We might say further, that, since several sections of the statute clearly contemplate that several streets may be embraced in...