Blount v. City of Laramie, 4201

• Citation: 510 P.2d 294
• Decision Date: 24 May 1973
• Docket Number: No. 4201,4201
• Parties: Marion BLOUNT et al., Appellants (Plaintiffs below), v. CITY OF LARAMIE, a municipal corporation, et al., Appellees (Defendantsbelow).
• Court: Wyoming Supreme Court

Page 294

510 P.2d 294

Marion BLOUNT et al., Appellants (Plaintiffs below), v. CITY OF LARAMIE, a municipal corporation, et al., Appellees (Defendantsbelow).

No. 4201.

Supreme Court of Wyoming.

May 24, 1973.

Rehearing Denied June 27, 1973.

John J. Rooney of Rooney & Horiskey, Cheyenne, for appellants.

Thomas S. Smith, Laramie, Dean W. Borthwick and Michael W. McCall of Borthwick & McCall, Cheyenne, for appellees.

Before PARKER, C. J., and McEWAN and McINTYRE, JJ.

Mr. Justice McEWAN delivered the opinion of the court.

This is an appeal concerning Local Improvement District No. 12 in the City of Laramie, Wyoming, which matter has previously been twice before this court. Mealey v. City of Laramie, Wyo., 472 P.2d 787; Mealey v. City of Laramie, Wyo., 485 P.2d 1019. The 'downtown improvement district' was originally created by the adoption of City Ordinance No. 355, ¹ to which we referrred in our first opinion. However, subsequent to the second case the city went through the procedures to enact an 'amended ordinance' (No. 383). ² After our decision in the second case the city, on August 20, 1971, received bids for the construction of the proposed improvements in Improvement District No. 12, which bids exceeded the statutory cost limitations. Ordinance No. 355 estimated the cost of the improvements at $991,509.30, while the cost estimates in Ordinance No. 383 were $1,119,073.00. Except for a reflection of the cost situation and various changes which would appear to have been an attempted correction of matters with which fault had been found in this court's previous opinion, 472 P.2d 787, 794-795, the amended ordinance was identical in form and language to Ordinance 355. The same statutory procedural requirements necessary for initiating an improvement district by the statutory resolution-of-intention method (§ 15.1-337, W.S.1957, C. 1965) were followed.

On April 18, 1972, the present plaintiffs herein filed action for declaratory judgment and injunctive relief. Defendants moved to dismiss on the ground that all the issues presented in the complaint were res judicata, and, further, that the complaint failed to state a claim upon which relief could be granted. Following the court's refusal to grant the defendants' motion, they denied generally and were later permitted to amend their answer to add the affirmative defenses of res judicata and collateral estoppel. The cause came on for hearing before the trial court upon a stipulation of facts by the parties, the court finding generally for the defendants and against the plaintiffs.

On appeal to this court the plaintiffs delineate their arguments for reversal as follows:

1. Sufficient protests, remonstrances and objections were received to require abandonment of the district.

2. On the face of the amended ordinance the cost of improvements will exceed the estimation thereof in the original ordinance by more than 10 percent and is therefore illegal, being in violation of § 15.1-337, W.S.1957, C. 1965.

3. An enactment cannot be amended, as here, to change or abrogate vested rights or to change a legislatively authorized but restricting action.

4. The second ordinance was an amended ordinance and not a new one.

5. The boundaries of an improvement district cannot be set without regard to the benefits to be received as between those in the district vis-a-vis those outside of the district.

6. The methods here proposed for apportioning the assessment are illegal or unconstitutional.

7. The improvements here contemplated are not local in nature.

8. The matter is not res judicata.

9. The doctrine of mutuality of estoppel (collateral estoppel) is irrelevant to this case.

10. The doctrine of stare decisis is not here applicable.

11. The decision of the lower court was inconsistent and the findings and results thereof were mutually exclusive of each other.

12. Modifications of basements cannot be a subject of a local improvement district.

13. The ordinance was illegally passed as an emergency enactment.

Plaintiffs' first three points are linked with their fourth charge, that the ordinance was an amended ordinance and not a new one and stand or fall with it. In that regard, the trial court specifically found that the ordinance was new, complete in every detail; and we view such finding as correct. Where it is evident that a subsequent act seeks to revise the entire subject matter, embracing all that was intended to be preserved in the old and omitting what was not so intended, the last act supersedes the former and repeals it by implication. State v. Cantrell, 64 Wyo. 132, 186 P.2d 539, 542; White v. North Yakima, 87 Wash. 191, 151 P. 645, 647; 6 McQuillin, Municipal Corporations, p. 320 (3 Ed., 1969 Rev. Vol.). For the reasons stated, we hold plaintiffs' points one through four to be without merit. ³

As to points five, six, and seven, the trial court found that the matter of contemplated improvements not being local in nature as well as the issues of district boundaries and method of apportioning the assessments were previously disposed of when the improvement district was before this court. Plaintiffs, however, insist that res judicata and stare decisis have no part here. We address outselves then to whether or not the trial court was in error in holding (1) the plaintiffs who were represented in the previous class action by plaintiff Mealey were foreclosed by res judicata, and (2) the plaintiffs who did not object to the original ordinance and were not represented by the class action were bound upon the basis of stare decisis.

In that connection, plaintiffs argued that the present matter is neither between the same parties nor upon the same matter as the previous cases and insisted that they were not represented by Mealey in the prior lawsuit because it was a spurious class action suit, and observed that at the time of that lawsuit Rule 23, W.R.C.P., had not been amended. It is to be observed that Wyoming in this instance has followed the Federal Rules of Civil Procedure, adopting Federal revisions thereof, the Federal committee having concluded 'that the terms 'joint,' 'common or secondary,' and 'several,' which appeared in former Rule 23(a) and provided the basis of the 'true,' 'hybrid,' and 'spurious' classification that developed during the 1938 to 1966 period 'proved obscure and uncertain.' * * *' 7 Wright and Miller, Federal Practice and Procedure: Civil § 1753, p. 539 (1972). We have had occasion to discuss the problem previously, and the pronouncements there made are applicable here. The first lawsuit initiated by Mealey falls under the 'true' classification, having involved the enforcement of an alleged right which was joint or common, the judgment similarly affecting all members of the class, and being binding thereon. Beadle v. Daniels, Wyo., 362 P.2d 128; Hansen v. Smith, Wyo., 395 P.2d 944. Actions by those assessed or taxed by a municipality are different in effect from most other actions. Here, had Mealey been successful in her contentions in either of the prior suits the city could not have said that the improvement district was invalid only as to Mealey and excluded her property from the improvement district and then proceeded with it. The two prior suits were more than contests over the validity of the improvement district as it applied to Mealey's property. If the contentions as raised by Mealey in the two prior suits had been resolved, as she had asked, such determination would have been binding upon the city as to all persons and property located within the improvement district. If it was binding upon the city as to the entire improvement district it must necessarily, as a two-edged sword, be binding upon all those parties owning property in the improvement district.

No contention was made that all members of the class were not adequately represented in the prior litigation or that they would, other than the basement and emergency ordinance questions, raise new or different matters, or raise them in a different fashion. Plaintiffs merely asked that we again consider the same questions as raised in the prior litigation.

With respect to plaintiffs' position that the doctrine of stare decisis is not here applicable, they also linked their allegation that the decision of the trial court was inconsistent and the findings and results thereof were mutually exclusive of each other, it being urged that the trial court embraced the theory that the second ordinance for the improvement district was a new ordinance, and that a new and different ordinance made new rights and relations and injected new facts. We see no merit in plaintiffs' view. The second ordinance was essentially the same as the first and dealt with Improvement District No. 12. It is true that the second ordinance injected new and different matters, that is, modifications of basements and the passage of the ordinance as an emergency enactment, but these received the consideration of the trial court and are the subject of plaintiffs' points 12 and 13. Scant attention is directed by plaintiffs to the passage of the ordinance, it merely being alleged that the introduction and passage of the ordinance within the hour because of the possible effect of inflation, rather than following the dictates of § 15.1-15, W.S.1957, (1971 Cum.Supp.), providing for at least ten days to elapse between the introduction and final passage of every ordinance except emergency ordinances, emphasizes the unreasonable, arbitrary and capricious actions taken with reference to the entire matter. We cannot agree. While the ten days is certainly infinitesimal compared to the years which have passed since the Laramie City Council initiated action on this improvement district, we do not fault the council for doing what little they could to cut the delays brought upon them.

As to the matter of the basements, the trial court found:

'* * * Apparently as a matter of grace down through the years, the city has...