Bowdich v. City of Albuquerque

• Decision Date: 05 July 1966
• Docket Number: No. 7729,7729
• Citation: 1966 NMSC 133,416 P.2d 523,76 N.M. 511
• Parties: William Earl BOWDICH et al., Plaintiffs-Appellees, v. The CITY OF ALBUQUERQUE, a Municipal Corporation, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 523

416 P.2d 523

76 N.M. 511

William Earl BOWDICH et al., Plaintiffs-Appellees, v. The CITY OF ALBUQUERQUE, a Municipal Corporation, Defendant-Appellant.

No. 7729.

Supreme Court of New Mexico.

July 5, 1966.

Frank Horan, Botts, Botts & Mauney, Gerald R. Cole, Albuquerque, for appellant

Pete V. Domenici, C. LeRoy Hansen, Albuquerque, for appellees.

OPINION

CHAVEZ, Justice.

This is an appeal from a judgment of the district court which decreed that the assessment roll adopted by defendant-city on March 26, 1963, was void and invalid.

In the spring of 1962, the voters of Albuquerque approved the issuance of storm sewer bonds. The construction of the sewer project required that substantial portions of Third Street be torn up in order to install a storm sewer. The city commission considered the age, condition, variance in width, and the fact that the street would be a direct route from a freeway to the downtown area; and decided that an overall savings could be effected by uniformly widening and rebuilding the street at the same time that the sewer work was being done.

On July 10, 1962, the city commission adopted a resolution directing an engineering firm to draw preliminary plans, cost estimates, and an assessment plat on such a project. These items were filed with the city clerk and a resolution, making the provisional order for the improvement, was adopted on August 7, 1962.

A protest hearing was set for September 4, 1962. Notice of the hearing was published in an Albuquerque newspaper and sent to each of the property owners. The meeting was held, the protests were heard, and the city commission, at their meeting of September 25, 1962, overruled the protects.

On March 12, 1963, an ordinance was adopted by the city commission, providing for the manner of giving notice of filing of the assessment roll. A resolution was adopted setting a hearing for objections to the assessment roll on March 26, 1963. The commission adopted a total assessment of $130,782.87. In no case did the assessment against any parcel in the paving area exceed the estimated benefits conferred on that property, and appellees do not contend that they did.

The assessment roll was published on March 26, 1963, and this action was filed on April 12, 1963.

The trial court concluded, as a matter of law, that appellees' complaint was timely filed; that appellees had properly protested the assessment roll and each assessment therein, as well as the amount levied on each parcel of property in the area; that the provisional order method of assessment did not vest the City of Albuquerque with the power to assess the owners in the area for the cost of removal and replacement of pavement, curbs, gutters and sidewalks; that the assessment for the cost of removal and replacement of the pavement, curbs, gutters and sidewalks was arbitrary, capricious and confiscatory. The trial court held that the proceedings under which appellees' properties were assessed were irregular and invalid, and that the assessment on each parcel was, therefore, irregular and invalid.

Appellant contends that several errors in these conclusions require a reversal of the judgment. Initially, appellant contends that all attacks made by appellees' complaint are barred by the limitation periods in § 14--37--18, N.M.S.A., 1953 Comp., or § 14--37--20, N.M.S.A., 1953 Comp. (Supp.1963). We shall treat our interpretation of the applicability of these statutes as they apply to appellees' attacks on the assessment noted below.

The major thrust of appellant's appeal is its contention that the trial court erred when it concluded: (1) That the city could not remove and replace the streets, gutters, curbs and sidewalks, and assess the property owners in the area for the cost under the provisional order method; and (2) that the city acted arbitrarily, capriciously, confiscatorily and irregularly, so as to invalidate the assessment roll.

We first consider the question of whether the provisional order method for street improvement vests a municipality with the power to remove existing paving, gutters, curbs and sidewalks, to replace them, and to assess the property owners of the area for the cost.

The powers of a municipality are derived solely from the state. Town of Mesilla v. Mesilla Design Center & Book Store, 71 N.M. 124, 376 P.2d 183; City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 389 P.2d 13. Appellant contends that appellees attacked the method of paving, not the power itself, and are barred by the portion of § 14--37--18, supra, which provides:

'* * * any person interested, may file a written protest or objection * * * as to the propriety and advisability of making such improvements, as to the costs thereof and manner of payment therefor, and as to the amount thereof to be assessed against said property.

'Any person filing a protest or objection as aforesaid, shall have the right, within thirty (30) days after the city council or board of trustees has finally passed on such protest or objection, to commence an action or suit in any court of competent jurisdiction to correct or set aside such determination, * * *.'

The statutory grant of power to improve streets, which is given to municipalities by § 14--37--16, N.M.S.A., 1953 Comp., vests only when the proper method to implement that power is adopted. The municipality has no right to exercise that power unless it follows the prescribed method. To suggest that appellees' failure to object vested a power in the appellant is not in accord with our rule, that all municipal powers are derived from the state.

The steps which a municipality shall take, when the governing body of the city feels that the interest or their municipality requires that any 'streets, alleys, or any part thereof * * * be graded, graveled, paved, macadamized, sidewalked, lighted, or in any manner improved' are outlined in part in § 14--37--16, supra.

The term 'paved,' when used in a municipal resolution, includes the construction of curbs and gutters as a necessary part of the project. Feldhake v. City of Santa Fe, 61 N.M. 348, 300 P.2d 934. The term 'paved' in § 14--37--16, supra, has the same meaning.

But do the terms 'paved' and 'sidewalked' in the same section bestow upon appellant city the right to remove existing improvements of this nature, replace those improvements, and assess the area property owners for the cost?

Appellees direct our attention to the fact that New Mexico has two methods by which municipalities may improve their streets, the provisional order method adopted in 1903 (§ 14--37--16, supra) and the petition method adopted in 1913 (§ 14--37--23, N.M.S.A., 1953 Comp.). The latter method employed the specific term 'repaving' in describing the powers which a city might obtain through consent of a majority of the property owners in the area. (The proportion of required owner-consent was raised to 66 2/3% in 1949.) While it is true that these statutes have been reconsidered at times, and the term 'repave' has not been added to the enumerated actions possible under the provisional order method until recently (§ 14--32--3, 1965 Pocket Supp.), we do not consider this fact conclusive.

In Pennsylvania, a statute with words similar to those appearing in our statute has been interpreted and the meaning of the word 'pave' was found to exclude the power to repave. City of Philadelphia v. O'Brien, 176 Pa.Super. 235, 107 A.2d 587; City of Philadelphia v. Pachelli, 168 Pa.Supra, 54, 76 A.2d 436. Hamilton, Law of Special Assessments, § 249, pp. 211--212, confirms this statement, but says:

'* * * In Pennsylvania it is the rule that repaving is not a charge upon an abutter, but this is not the general rule. The power to make local assessments upon property specially benefited, is a continuing one, in the absence of charter restrictions, and abutting owners may have the cost of repaving, as well as of paving, streets assessed upon their property.'

State ex rel. Wheeler v. District Court, 80 Minn. 293, 83 N.W. 183, supports this concept. In that case the court held that the power to grade, fill, level, pave, curb, wall, widen, contract, alter, and straighten any street, levee, alley or highway, included the power to repave.

In Edgington v. City of Memphis, 152 Tenn. 152, 274 S.W. 548, the court found that the power to open, widen, extend, grade, curb, gutter and pave, included the power to repave and assess adjoining property owners. It cited authorities expressing the same concept, that the power to pave is a continuing power and it is not exhausted when initially exercised.

In Gillespie v. Fuller Const. Co., (Tex.Civ.App.1933), 66 S.W.2d 798, the court held that the charter which gave the city the power to improve 'any street * * * by filling, grading, raising, macadamizing, remacadamizing, paving, repairing, or otherwise improving the same' allowed the city to repave. It also accepted the continuing power theory.

McQuillin, Municipal Corporations, Vol. 14, 3rd Ed., § 38.16, adopts this same view and says that repaving is a continuation of the paving power and the benefited owners may be assessed for the cost. This, we believe, is the majority view and is the one which our legislature intended when it adopted the provisional order method of street improvement, regardless of its later adoption of another method. Likewise, the same view is as applicable to the term 'sidewalked' as to the term 'paved.'

Appellees argue that such an interpretation gives appellant the power to remove adequate improvements, in good condition, and replace them whenever it desires. Further, they say, the city can do so in a manner which benefits the city as a whole more than the property owners on whom the cost is placed.

The findings of the trial court indicate that such was the situation in the instant case, but this is true only...