Bidlingmeyer v. City of Deer Lodge

• Decision Date: 01 July 1954
• Docket Number: No. 9290,9290
• Citation: 274 P.2d 821,128 Mont. 292
• Parties: BIDLINGMEYER et al. v. CITY OF DEER LODGE et al.
• Court: Montana Supreme Court

Page 821

274 P.2d 821

128 Mont. 292

BIDLINGMEYER et al. v. CITY OF DEER LODGE et al.

No. 9290.

Supreme Court of Montana.

July 1, 1954.

Rehearing Denied Oct. 19, 1954.

P. E. Geagan and William N. Geagan, Butte, for appellants.

Joseph A. McElwain, Deer Lodge, for respondents.

ANGSTMAN, Justice.

Plaintiffs, as taxpayers upon property situated in the city of Deer Lodge, brought this action to enjoin and restrain defendants from selling bonds, letting any contract, or doing any act necessary to making Main street in the city of Deer Lodge a part of 'Federal Aid Highway' commonly known as U. S. highway No. 10 south.

A general demurrer to the complaint was sustained. Plaintiffs electing not to plead further, judgment in favor of defendants was entered from which plaintiffs have appealed.

Respondents on March 3, 1954, filed a motion to dismiss the appeal on the ground that no actual controversy now exists since every act and thing which plaintiffs sought to have enjoined has been fully and completely done and performed. The motion was supported by affidavit showing that bonds have been issued, a contract let for the making of the improvements and that the improvements have been made consisting of the asphaltic paving of Main street in the city of Deer Lodge.

Notwithstanding the fact that the work has been completed, plaintiffs contend that other issues remain in the case. They contend that there remains the question of whether the demurrer was properly sustained in view of the allegations pertaining to the legality of the assessments to pay for the improvements, and in view of the allegations made with respect to an alleged unauthorized attempt by the city to relinquish and abandon its governmental powers and duties with respect to its streets.

The complaint alleges that taxes and assessments levied upon and against property of plaintiffs are illegal and unlawful and violative of Article XII, § 11, of our Constitution, in that there is double taxation because the property included in special improvement districts No. 90 and No. 92 is also included in district No. 91. There are no fact allegations in the complaint showing or tending to show that the assessments are illegal or unlawful unless the claim of double taxation has merit.

The record shows that special improvement district No. 90 included all the property abutting on a portion of Main street and district No. 92 included all the property abutting on the remaining portion of Main street. Improvement district No. 91 included all the property in the city of Deer Lodge exclusive of streets, avenues, alleys and public places, and including that in districts Nos. 90 and 92. The resolutions creating the districts point out that the estimated cost of the entire improvement of Main street including the intersections would be $177,450, of which the Federal Government's bureau of public roads and the state of Montana highway commission would assume the sum of $129,500, leaving the balance of $47,950 to be borne by the improvement districts. Of that amount district No. 90 was to furnish $25,000, No. 92 $1,500, and No. 91 $21,450. District No. 91 was created as a means of raising revenue for the purpose of paying for the improvements at the intersections and was authorized by R.C.M.1947, § 11-2205. Assessments in districts Nos. 90 and 92 were based upon the lineal feet bordering on the street in question under R.C.M.1947 § 11-2214. The assessments were for different purposes and in no sense was there double taxation. One assessment was to raise money to defray the cost of the intersections and the other to defray the cost of the street where it abuts on privately owned property.

Likewise, though the point is unimportant here, this court has repeatedly held that section 11 of Article XII of our Constitution has no application to special assessments. Billings Sugar Co. v. Fish, 40 Mont. 256, 106 P. 565, 26 L.R.A.,N.S., 973; In re Valley Center Drain District, 64 Mont. 545, 211 P. 218; Walden v. Bitter Root Irrigation District, 68 Mont. 281, 217 P. 646; Thaanum v. Bynum Irrigation District, 72 Mont. 221, 232 P. 528.

Hence even though there were lack of uniformity of assessment (which the record does not show), it would be of no avail to plaintiffs in support of their contention that section 11 of Article XII, Montana Constitution, is violated.

Does the complaint state facts sufficient to show that there has been an unauthorized abandonment by the city of the powers and duties with respect to the regulation of Main street.

The complaint alleges that defendants, in order to have Main street paved, adopted resolution No. 483 on May 2, 1949, the important parts of which read: '2. That it will not pass any ordinances or laws fixing a speed limit on the above mentioned street of under 25 miles per four. 3. That it will not allow the erection of signs, semaphores or signals that will give preference to local routes which intersect with said above mentioned street with the exception of necessary traffic lights. 4. That it will require stopping of traffic at all intersections, streets and alleys before entering the above mentioned street, with the exception of those intersecting streets where traffic is regulated by traffic lights and when traffic lights are in operation. 5. That it will modify its City Ordinance to require parallel parking on the above mentioned street. 6. That it will require that all opening of the pavement be done under direct supervision of the State Highway Department to their complete satisfaction and that no opening of the pavement is to be done without prior authorization from the State Highway Department and upon posting an approved bond in an amount of one thousand dollars ($1,000.00).'

The complaint then alleges that the resolution is an unauthorized attempt to relinquish the city's powers and duties over and upon Main street. It alleges that the resolution would prevent the city from slowing or stopping traffic along Main street for the benefit, safety and protection of school children or other pedestrians by creating, establishing or marking a safety zone or 'through street' intersecting and crossing Main street. Other like allegations are made as to the effect of the resolution in question.

The general rule is that the police power of a municipal corporation cannot be divested by contract or otherwise. 37 Am.Jur., Municipal Corporations, § 276, p. 901. And generally speaking, it cannot be surrendered or delegated. Helena Light & Ry. Co. v. City of Helena, 47 Mont. 18, 130 P. 446. The source of the police power of municipalities is the state. 37 Am.Jur., Municipal Corporations, § 277, p. 902; Carey v. Guest, 78 Mont. 415, 258 P. 236; Helena Light & Ry. Co. v. City of Helena, supra. The state, having delegated authority over the city streets to the cities, R.C.M.1947, §§ 11-912, 11-1002, the latter have exclusive control over them (Carey v. Guest, supra), but the state may take away or revoke a part or all of the authority which it has delegated to the cities.

'A municipality, in exercising the police power granted to it by the legislature, acts as the agent of the state, and the legislature may at any time change its agent, and by another statute provide that a power previously exercised by the municipality shall be exercised by some other agency.' 37 Am.Jur., Municipal Corporations, § 279, p. 907.

And in 25 Am.Jur., Highways, § 254, p. 545, it is said: 'Subject to constitutional limitations, the state has absolute control of the highways, including streets, within its borders, even though the fee is in the municipality. Such power of supervision and control may be exercised directly by the legislature or may be delegated by it to subordinate or local governmental agencies, such as municipalities and quasi municipalities, or to park commissioners, police boards, or such other authorities as it deems fit, and any such delegation may be revoked or changed at will.'

This principle of law was succinctly declared under circumstances quite similar to those here in Cabell v. City of Cottage Grove, 170 Or. 256, 130 P.2d 1013, 1019, 144 A.L.R. 286, where the court, speaking through Mr. Justice Lusk, said: 'The argument, on behalf of the commission, is that the legislature has paramount control over all the public highways of the state, including city streets and county roads; that the legislature may exercise that control or may delegate it and may recall a power once delegated; that the legislature has recalled from cities the control over city streets taken over by the commission pursuant to the provisions of the highway code and vested that control in the commission; and that such control includes the authority now in question. The power and authority of the legislature thus asserted, to delegate and recall control over public highways, are not and cannot be disputed. (Citing cases.)' To the same general effect is Automatic Signal Advertising Co. v. Babcock, 166 Minn. 416, 208 N.W. 132, and see Tranter v. Allegheny County Authority, 316 Pa. 65, 173 A. 289.

We have held that city streets belong to the state and the city is but the trustee thereof. Headley v. Hammond Building, Inc., 97 Mont. 243, 33 P.2d 574, 93 A.L.R. 794; State ex rel. State Highway Commission v. District Court, 105 Mont. 44, 69 P.2d 112. And see Dietrich v. City of Deer Lodge, 124 Mont. 8, 218 P.2d 708.

The resolution complained of here was adopted pursuant to the authority found in R.C.M.1947, § 32-1609, reading: 'For and on behalf of the state of Montana, and in conformity with the requirement of section 1 of said act, the provisions of that certain act of congress approved July 11, 1916, known as the federal aid road act and entitled 'An act to provide that the United States shall aid the states in the construction of rural post roads, and for other purposes,' is hereby assented to. The state highway commission is hereby authorized to, for and on behalf of...