Branting v. Salt Lake City

• Citation: 47 Utah 296,153 P. 995
• Decision Date: 01 December 1915
• Docket Number: 2780
• Court: Supreme Court of Utah
• Parties: BRANTING v. SALT LAKE CITY

153 P. 995

47 Utah 296

BRANTING v. SALT LAKE CITY

No. 2780

Supreme Court of Utah

December 1, 1915

Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by L. Franklin Branting against Salt Lake City, a municipal corporation.

Judgment for plaintiff. Defendant appeals.

REVERSED, and complaint dismissed.

H. J Dininny, City Attorney, and W. H. Follard, Assistant City Attorney, for appellant.

Dey Hoppaugh & Fabian, for respondent.

FRICK J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The plaintiff, hereinafter called "respondent," commenced this action in equity. In his complaint he asked the court to annual certain ordinances and proceedings which were passed and adopted by the authorities of Salt Lake City by virtue of which a certain local improvement, to wit: a sewer, was ordered constructed, and a special tax was assessed and levied upon the abutting property to defray the cost of constructing the same. Hereinafter both the city authorities and said city will be referred to as "appellant" merely.

The plaintiff, in his complaint, among other things, alleged:

"That he brings this action for himself and for all others similarly situated who choose to join him and contribute to the expense hereof and become parties hereto."

The complaint is very long, and the proceedings which are assailed are set forth with much particularity and detail. We shall, in the course of opinion, refer to such matters as are deemed material.

While it is not disputed in the complaint that the appellant had compiled with all the jurisdictional steps required by our statute to authorize it to order the sewer constructed and to make the assessment and to levy the special tax to pay therefor, yet it is alleged that the appellant exceeded its jurisdiction or authority in making an assessment and in levying a tax in excess of a certain amount as hereinafter stated. The appellant set up various defenses to the action, and to those we deem material we shall refer later.

The facts, as found by the court, are not in dispute; but the conclusions of law and judgment in favor of respondent are vigorously assailed by the appellant. The particular statute upon which the tax proceedings are based has frequently been considered by this court. In Armstrong v. Ogden City, 9 Utah 255, 34 P. 53; Jones v. Foulger, 46 Utah 419, 150 P. 933, and again in Stott v. Salt Lake City , 47 Utah 113, 151 P. 988, the statute is set out in full, and the steps which are deemed jurisdictional are there set forth. The question that is raised in this proceeding by the respondent was, however, not considered in any of those cases.

While it is conceded that the appellant complied with all the provisions of the statute in ordering the improvement in question, it is nevertheless insisted that when it levied the special tax it exceeded its authority, in that it assessed and levied the tax for a larger amount than it was authorized to do. This question arose as follows: By an examination of our statute (Comp. Laws 1907, section 273) it will be seen that in publishing the original notice of intention the appellant was required to state, among other things, "the estimated cost of the improvement." The appellant complied with that requirement, but in describing the district which was affected by the improvement it stated the number of linear feet to be 54,978 and the estimated cost of the improvement which was to be paid by said 54,978 feet as $ 71,471.40, or $ 1.30 per front foot. The improvement, that is, the sewer in question was ordered, and the notice aforesaid was published in the year 1906. After the notice was published, but before a contract to construct the sewer could be entered into, and before the special assessment was made and the tax levied, the Legislature of this state adopted an amendment to the law as then existing, which amendment provided:

"That any levy of a special tax for special improvements shall not be made until the cost of such improvement shall first have been ascertained by contract, duly let to the lowest responsible bidder, after publication of notice, * * * and the cost of such improvements shall not exceed to the property owner the amount of the contract entered into for the performance of the work." Chapter 127, Laws of Utah 1907, p. 194.

By another statute (Comp. Laws 1907, section 274) which was then in force it is provided:

"All special taxes to cover the cost of any public improvement herein authorized shall be levied and assessed on all blocks, lots, parts of blocks and lots, lands, and real estate bounding, abutting, or adjacent to such improvement or within the districts created for the purpose of making such improvement, to the extent of the benefits to such lots," etc.

After the law was amended, but without publishing a new notice of intention, the appellant advertised for bids as required by the statute for the construction of the sewer in question, and the lowest responsible bid it obtained for the construction of the sewer amounted to $ 2.15 per front foot. The contract was accordingly let to the lowest bidder for the amount aforesaid. After the cost was ascertained as required by the statute, the appellant duly made the assessment and levied the tax, amounting to $ 2.15 per front foot, upon all of the abutting property, including the respondent's. Before making the assessment, however, appellant, as provided by Comp. Laws 1907, section 265, duly published notice to the taxpayers, in which notice it named a time and place when and where any taxpayer who felt aggrieved could be heard respecting the justness or validity or equality of the assessment and levy of the tax as aforesaid. The respondent did not appear nor offer any objection to the assessment and levy of the tax as proposed, and the tax was accordingly assessed and levied to the amount of $ 2.15 per front foot, which was in excess of the estimated cost, as before stated. After the sewer was completed, the respondent connected several of his properties therewith, and without objection or protest paid into the city treasury a sum equal to $ 1.30 per front foot, but refused to pay more; and to avoid paying the same has instituted this action to annual the proceedings whereby the tax was assessed and levied as aforesaid.

Respondent's counsel contend that while appellant could legally assess and levy a tax against the property benefited to the amount of the estimated cost of the sewer, to wit: $ 1.30 per front foot, yet it had no authority to assess and levy a tax in excess of that amount, and that therefore the difference between $ 1.30, the estimated cost per front foot, and $ 2.15, the actual cost of the sewer per front foot, is void. In other words, counsel insist that appellant exceeded its authority in assessing a tax in excess of $ 1.30 per front foot. Upon the other hand, appellant's counsel contend that, inasmuch as the appellant had fully complied with all the requirements of the statute in ordering the improvement and in assessing and levying the tax in question, what the respondent complains of is, at most, an irregularity, and not a jurisdictional defect. The real question for determination therefore is whether appellant lost or exceeded its power or jurisdiction in assessing the tax in excess of the original estimated cost of the sewer.

There is no question here of fraud, or bad faith, or that the sewer did not actually cost $ 2.15 per front foot, or that respondent's property is not benefited to that extent; but the sole question hinges upon the proposition just stated.

Counsel for respondent have cited cases in which it is held that in case a statute requires that the estimated cost be given such requirement is jurisdictional, and that the taxing power has no legal authority to assess a tax in excess of the estimated cost, regardless of the actual cost of the improvement. A number of cases to that effect are cited, among which are City of Chicago v. Wilder, 184 Ill. 397, 56, 56 N.E. 395 N.E. 395, and other Illinois cases; Kerr v. City of Corsicana (Tex. Civ. App.) 35 S.W. 694; Hawthorne v. City of Portland, 13 Ore. 271, 10 P. 342; Gilmore v. Hentig, 33 Kan. 156, 5 P. 781; and Gainesville v. McCreary, 66 Fla. 507, 63 So. 914. While the foregoing cases are not all that are cited by counsel, yet those referred to sufficiently illustrate the theory upon which the courts base their decisions in holding that the estimates as published were jurisdictional and could not be exceeded in levying the tax. We remark that, with the exception of two or three of the cases just referred to, no estimates were published as required by the statute, and in the cases where such estimates were published they were so defective that they could not be considered as estimates. The taxpayer therefore was practically left in the situation as if no notice or estimate had been published. There are, however, at least two cases cited wherein it is squarely held that an assessment and tax may not be made or levied in excess of the published estimate. Several cases from the Supreme Court of Washington are also cited, namely: Chehalis v. Cory, 54 Wash. 190, 102 P. 1027, 104 P. 768; same case in 64 Wash. 367, 116 P. 875; and Collins v. City of Ellensburg, 68 Wash. 212, 122 P. 1010 at 1010-1014. We shall see, however, that the cases from Washington can have no controlling influence under our statute. The foregoing cases are all based upon statutes which essentially differ from ours. While it is true that our statute requires an estimate of the cost of the contemplated improvement to be published, yet the purpose and effect of such estimate is quite different under different statutes. With the assistance of the briefs and arguments of coun...