City of Fargo v. Gearey
| Decision Date | 04 February 1916 |
| Docket Number | 1915 |
| Court | North Dakota Supreme Court |
Appeal from the District of Cass county Pollock, J.
Reversed.
This case was taken for investigation and study in the practice court of the Law Department of our State University, and very creditable briefs were filed herein by consent of counsel by the following members of the Law Department, viz.: P. R Bangs, J. Carl Loudon, C. F. Kelsch, Earl McFadden, and Franklin Page for plaintiff; and J. J. Mulready, C. F Peterson, B. O. Angell, Walter Schlosser, P. M. Paulson, and E. A. Sweggum for the Park Commission.
Judgment set aside. Proceeding dismissed.
W. J Clapp, for appellants.
Public property, used for public purposes, is not subject to special assessments. Because the property here involved belongs to a municipal corporation and is only held for public use, it is not subject to this attempted special assessment. 4 Dill. Mun. Corp. 5th ed. § 1446; Pittsburg v. Sterrett Subdist. School, 204 Pa. 635, 61 L.R.A. 183, 54 A. 463; La Grange v. Troup County, 132 Ga. 384, 64 S.E. 267, 16 Ann. Cas. 885; Board of Improvement v. School Dist. 56 Ark. 354, 16 L.R.A. 418, 35 Am. St. Rep. 108, 19 S.W. 969; Worcester County v. Worcester, 116 Mass. 193, 17 Am. Rep. 159; Big Rapids v. Mecosta County, 99 Mich. 351, 58 N.W. 358; San Diego v. Linda Vista Irrig. Dist. 35 L.R.A. 40, conclusion of note; Clinton v. Henry County, 115 Mo. 557, 37 Am. St. Rep. 415, 22 S.W. 494; Louisville v. Leatherman, 99 Ky. 213, 35 S.W. 625; Mt. Sterling v. Montgomery County, 152 Ky. 637, 44 L.R.A.(N.S.) 57, 153 S.W. 952; Edwards v. Ocala, 58 Fla. 217, 50 So. 421; 1 Bl. Com. 262; Endlich, Interpretation of Statutes, §§ 161, 163; 1 Kent, Com. 13th ed. 460; Boston Seaman's Friend Soc. v. Boston, 116 Mass. 189, 17 Am. Rep. 153.
The park district of the city of Fargo, being a municipal corporation, has exclusive jurisdiction over its parks, there cannot be at the same time, within the same territory, two distinct municipal corporations exercising the same powers, jurisdiction, and privileges. Laws of 1907, chap. 179; Pol. Code, art. 24; Comp. Laws 1913, §§ 4055, 4063; West Chicago Park Comrs. v. Chicago, 152 Ill. 392, 38 N.E. 697; Willcock, Mun. Corp. 27; 1 Dill. Mun. Corp. 4th ed. § 184; Grant, Corp. 18; Taylor v. Ft. Wayne, 47 Ind. 274; Strosser v. Ft. Wayne, 100 Ind. 443; State v. Winter Park, 25 Fla. 371, 5 So. 818; Paterson v. Society for Establishing Useful Mfrs. 24 N.J.L. 385; Rex v. Pasmore, 3 T. R. 199, 1 Revised Rep. 688; 15 Am. & Eng. Enc. Law, 1007.
Park boards have no authority to levy taxes or otherwise provide for street improvements done by the city. Comp. Laws 1913, § 4059.
Park commissioners cannot be compelled to perform an illegal act, and are not estopped from making objections to the levy at this time. United States v. County Ct. 99 U.S. 582, 25 L.Ed. 331; Robertson Lumber Co. v. Grand Forks, 27 N.D. 556, 147 N.W. 249.
A municipal corporation cannot be held to have waived a jurisdictional defense. 3 Dill. Mun. Corp. 5th ed. § 1194.
The city, and not the park district, can and must pay or provide for the assessments. Comp. Laws 1913, § 3723; Louisville v. Leatherman, 99 Ky. 213, 35 S.W. 625; West Chicago Park Comrs. v. Chicago, 152 Ill. 392, 38 N.E. 697.
Emerson H. Smith, for respondent.
The law contemplates that all benefited property located within the assessment district shall be assessed, without expressly excepting any property, either public or private, save that of the United States. Rev. Codes 1905, § 2796; Comp. Laws 1913, § 3721; Re Howard Ave. North, 44 Wash. 62, 120 Am. St. Rep. 973, 86 P. 1117, 12 Ann. Cas. 417; Edwards & W. Constr. Co. v. Jasper County, 117 Iowa 365, 94 Am. St. Rep. 301, 90 N.W. 1011; Scammon v. Chicago, 42 Ill. 192; Newberry v. Detroit, 164 Mich. 413, 32 L.R.A.(N.S.) 303, 129 N.W. 699; Whittaker v. Deadwood, 23 S.D. 543, 122 N.W. 590; New Orleans v. Warner, 175 U.S. 138, 44 L.Ed. 106, 20 S.Ct. 44; Roosevelt Hospital v. New York, 84 N.Y. 112; Franklin County v. Ottawa, 49 Kan. 747, 33 Am. St. Rep. 396, 31 P. 788; Higgins v. Chicago, 18 Ill. 276; McLean County v. Bloomington, 106 Ill. 209; Adams County v. Quincy, 130 Ill. 566, 6 L.R.A. 155, 22 N.E. 624; Sioux City v. Independent School Dist. 55 Iowa 150, 7 N.W. 488; Hassan v. Rochester, 67 N.Y. 528.
Section 176, state Constitution, does not relate to local assessments, but only to general taxation. Webster v. Fargo, 181 U.S. 394, 45 L.Ed. 912, 21 S.Ct. 623.
A "way" technically speaking, is the passage over the lands of another. Postal Teleg. Cable Co. v. Southern R. Co. 90 F. 32; Dennis v. Wilson, 107 Mass. 593; Chollar-Potosi Min. Co. v. Kennedy, 3 Nev. 372, 93 Am. Dec. 409.
The statutes give to the city much greater powers than to the park board; these officers do not perform the same duties; the park commissioners and the city council do not possess the same jurisdiction, nor are the functions of their offices the same. Sargent County v. Sweetman, 29 N.D. 256, 150 N.W. 876.
The city had the power and authority to assess the park district as an integral part of assessment, and its procedure was that authorized by law. Comp. Laws 1913, § 3721; Edwards & W. Constr. Co. v. Jasper County, 117 Iowa 365, 94 Am. St. Rep. 301, 90 N.W. 1006.
The appellant should pay for the benefits received by it, the same as any other property owner. Edwards & W. Constr. Co. v. Jasper County, 117 Iowa 365, 94 Am. St. Rep. 301, 90 N.W. 1008; Scammon v. Chicago, 42 Ill. 192; McLean County v. Bloomington, 106 Ill. 209.
The park district should bear its own burden, in proportion to its share in the benefits derived from the assessment. Newberry v. Detroit, 164 Mich. 413, 32 L.R.A.(N.S.) 303, 129 N.W. 699.
Fargo, acting by its city council, has levied special assessments aggregating $ 8,099 against Island park within said city for paving of streets bordering upon Island park. Part of the cost of the paving has been thus assessed against private property owners and the balance against the city park. Fargo had adopted a park district system and with it a park commission. That commission and the individual members thereof, these defendants, have at all times refused to recognize the jurisdiction of the city or its council or special assessment commission acting under it, to levy or enforce these special assessments against Island park. Thereupon they were mandamused to include installments of special assessments due and falling due, and to thus make provision in 1914 for the payment of past, present, and future installments of these special assessments against the park. Upon trial a peremptory writ was awarded directing them to levy a tax upon the park district for said purposes. The appeal is from the judgment thereon.
Logically the first question presented is concerning the exercise of the power of special assessment so far as a decision thereon is necessary. Defendants challenge the jurisdiction of the city commission to act and claim the right themselves, and that under the principle that there cannot be at the same time within the same territory two distinct municipal corporations exercising the same powers, jurisdiction, and privileges over the same subject-matter, the city council was without jurisdiction to act, and was but invading the province of the park commission in so doing. A careful investigation of statutes and authority sustains their contention. As the matter is primarily one of interpretation of statutes to arrive at where the power to levy these special assessments has been vested, it is well to consider the scope, purposes, express powers granted, and limitations reserved and implied, all concerning the exercise of such powers, and determining any apparent conflict of jurisdiction in the matter. The statutes, §§ 4055-4063, contemplate a radical change in the distribution of governmental authority. Certain powers are taken from the city council and vested in an elective park commission. The present statute providing for their election obviates the unconstitutionality of the 1905 act, as passed upon in Vallelly v. Park Comrs., 16 N.D. 25, 15 L.R.A. (N.S.) 61, 111 N.W. 615, holding portions of the 1905 act, the initial legislation on the subject of park commissions, unconstitutional in that it authorized a local appointive instead of elective body, to levy taxes for local improvements. The present act is comprehensive, and designed as complete legislation on that subject. It was intended that those cities adopting it should have a park commission with certain sole and exclusive powers incidental and necessary to the acquirement, maintenance, control, and improvement of city parks, boulevards and ways. Under it the park district by its commission exercises to the full the statutory powers granted and as corporate agents for the city. The park district is at least coextensive with the city limits. The legislature has endeavored to grant powers to the park commission beyond city limits. Sess. Laws 1915, chap. 71. Nowhere in the act can there he discerned any intent that any of its powers should be exercised under the supervision, control, or direction of any other body or agent of the city. It creates an exception to the general law governing cities, applicable to those cities only who adopt it. To that extent the general law governing cities must be taken as amended by its provisions as to those cities electing to proceed under it, as in the case at hand. It is the corporate agent for the administration of city parks, possessing all...
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