Byrns v. City of Moscow

• Decision Date: 13 March 1912
• Citation: 21 Idaho 398,121 P. 1034
• Parties: BAYARD T. BYRNS, Plaintiff, v. CITY OF MOSCOW, IDAHO, et al., Defendants
• Court: Idaho Supreme Court

121 P. 1034

21 Idaho 398

BAYARD T. BYRNS, Plaintiff, v. CITY OF MOSCOW, IDAHO, et al., Defendants

Supreme Court of Idaho

March 13, 1912

CITIES-TOWNS-PAVING STREETS - CONSTRUCTING SIDEWALKS-MUNICIPAL BONDS-LIMITATIONS OF INDEBTEDNESS-MUNICIPAL DEBTS-SPECIAL ASSESSMENTS.

(Syllabus by the court.)

1 Secs. 1 and 2, art. 12, of the constitution of this state grant to the legislature power and authority to provide for the incorporation, organization and classification of cities and towns, and such cities and towns have such power and authority as are provided by the laws enacted by the legislature.

2. The only limitation upon the power of the legislature is that it cannot authorize a city or village to incur any indebtedness or liability in any manner or for any purpose exceeding in that year the income and revenue for it for such year without the assent of two-thirds of the qualified electors thereof voting at an election.

3. It is within the power and authority of the legislature of the state to provide for the incorporation and organization of cities and villages, and to authorize such cities and villages to make public improvements such as paving, grading and guttering streets and the building of sidewalks and the construction of curbing, and providing that the cost of such improvements may be paid from the general levy of taxes, or by means of special assessments made against the property specially benefited, and that municipal bonds may be issued for the purpose of raising such revenue with which to pay for such improvements, and that all such regulations and matters are entirely within the power of the legislature and may be provided for by proper legislation.

4. Rev Codes, sec. 2238, grants full power to cities and villages organized under the general law of the state to make contracts for the construction and building of such public improvements enumerated in such act, and to levy special assessments within an improvement district formed, for the full debt thereof, in proportion to the benefits derived to said property by said improvements, sufficient to cover the total cost and expenses of the work to the center of the street, and includes the construction of sidewalks, curbs paving and gutters.

5. This same section, however, in paragraph 2 of subd. 6, requires that the expense of all improvements in the space formed by the junction of one or more streets or wherein one main street terminates in or crosses another main street, and also all street crossings and cross-walks, shall be paid by the city or village, and the latter is a city or village indebtedness and must be paid by the city or village.

6. Where streets are paved and the assessments are made against the abutting property according to the benefits, as provided in Rev. Codes, sec. 2238, improvement district bonds may be issued by the city upon the council passing proper ordinance authorizing the same without submitting the question of issuing the bonds to the electors or taxpayers of either the improvement district or the city, but where the cost and expenses are to be paid by the city and bonds are to be issued for the purpose of raising revenue to pay the same then such question must be submitted to the electors and taxpayers of the city and must be by them authorized by proper vote. Rev. Codes, secs. 2315, 2316, and subsequent sections, as amended by Laws of 1909, p. 174.

7. Where several propositions with reference to the issuing of municipal bonds are to be submitted to the electors for vote, the same may be done in a single ordinance for that purpose, by stating such propositions separately so that the electors may express their desire and vote upon each singly. Where, however, the propositions to be determined are distinct and different propositions and are to be determined under different provisions of the statute, then there should be a separate ordinance with reference to each proposition.

8. Rev. Codes, sec. 2323, and the subsequent sections, which were originally adopted as the act of March 5, 1895, are repealed by the act of March 13, 1911.

An original application for writ of prohibition. Writ allowed.

Costs awarded to plaintiff.

W. M. Morgan, for Plaintiff.

This court has heretofore placed a construction upon chap. 12 of the code and upon sec. 3 of art. 8 of the constitution, and has decided that if the issuance of bonds creates an indebtedness or liability, then the city cannot issue them without a vote of the people. (Veatch v. City of Moscow, 18 Idaho 313, 21 Ann. Cas. 1332, 109 P. 722.)

G. G. Pickett, for Defendants.

The law in the case we understand to be that "different acts of the legislature unless repugnant will be construed together in pari materia, as providing two methods of improvements." (28 Cyc. L. & Pr., p. 972, and cases cited.)

The latter of two acts passed at the same session of the legislature controls when they are inconsistent. (Thomas v. Collins, 58 Mich. 64, 24 N.W. 553; Watson v. Kent, 78 Ala. 602; Hearn v. Brogan, 64 Miss. 334, 1 So. 246; Jeffersonville etc. R. R. Co. v. Dunlap, 112 Ind. 93, 13 N.E. 403.)

STEWART, C. J. Sullivan, J., concurs.

OPINION

STEWART, C. J.

This is an application for a writ of prohibition. It is alleged in the affidavit that the plaintiff is an actual bona fide resident in and taxpayer of the city of Moscow, Idaho, and that he resides upon and owns lots and lands subject to assessment and taxation in, and included in, the proposed improvement district, mentioned and described in a copy of an ordinance of the city of Moscow which is attached to the affidavit, and that said district embraces the property of the plaintiff and others, abutting upon and contiguous and tributary to Polk street, between the north line of C street and the south line of Third street, in the city of Moscow.

The affidavit also states, further, the fact that the city of Moscow is a municipal corporation, organized and incorporated under the general laws of the state of Idaho relating to the incorporation of cities, and is not organized or incorporated under any special or local laws; and that the defendants are the mayor and common council of said municipality; that on the 27th day of February, 1912, the city council of said city passed an ordinance which was duly approved by the mayor declaring the intention of the city and its city council to pave Polk street from the north line of C street to the south line of Third street, and that said mayor and city council threaten to and will, unless restrained and prohibited from so doing by order of court, proceed to pass and enact an ordinance for such improvement, and create and establish a local improvement district to be called "Local Improvement District No. 1," which will embrace all the property fronting or abutting on or tributary to said Polk street between the north line of C street and the south line of Third street, including the property of plaintiff. The cost and expense of such improvement will be taxed and assessed against all property in such local improvement district, including the property of plaintiff; and that unless said mayor and common council are prohibited and restrained they will incur such indebtedness against said Local Improvement District No. 1 in the year 1912, in an amount greatly in excess of the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose; and that they also threaten, unless restrained and prohibited, to provide for the cost and expense of paving and otherwise improving said street, other than the junctions and intersections thereof with other streets, by installments, instead of by levying the entire tax or special assessment for such costs at one time, and that for such installments they will issue in the name of the said city of Moscow improvement bonds of the said improvement district, which said district will include the adjoining, contiguous and approximate property to said Polk street, between the north line of C street and the south line of Third street, including the property of plaintiff, and that said bonds will be issued and negotiated and disposed of without first calling an election either of the voters of said city of Moscow or of said improvement district to determine by their votes the question of whether said bonds should be issued and negotiated and sold; and that they will levy a special assessment each year sufficient to redeem the installments of such bonds next thereafter maturing, and said assessments will be levied and made upon and against the real estate within said improvement district, including the property of the plaintiff; and said bonds when issued will be sold, and said assessments made and levied will become a lien and encumbrance upon the property of plaintiff.

And it is further alleged that unless said mayor and common council be prohibited and restrained, they will cause the junctions and intersections of streets within said district to be paved and repaired, and cause to be made and repaired storm sewers in said streets within said improvement district, which storm sewers are a part of the general improvement thereof; and that they will incur an indebtedness and liability against the city of Moscow in the year 1912 in an amount exceeding the income and revenue provided for it for such year, without the assent of the qualified electors of said city or district, and will dispose of such bonds of the city of Moscow in order to raise money with which to pay the cost of paving said street intersections and junctions and of building and repairing said storm sewers, and will levy and cause to be levied assessments against plaintiff's property in order to...