City of Kalispell v. School Dist. No. 5 of Flathead County

• Decision Date: 15 March 1912
• Citation: 122 P. 742,45 Mont. 221
• Parties: CITY OF KALISPELL v. SCHOOL DIST. NO. 5 OF FLATHEAD COUNTY.
• Court: Montana Supreme Court

122 P. 742

45 Mont. 221

CITY OF KALISPELL v. SCHOOL DIST. NO. 5 OF FLATHEAD COUNTY.

Supreme Court of Montana

March 15, 1912

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

Action by the City of Kalispell against School District No. 5 of Flathead County. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

D. F Smith, of Kalispell, for appellant.

X. K Stout, of Kalispell, Albert J. Galen, Atty. Gen., and W. H Poorman, Asst. Atty. Gen., for respondent.

HOLLOWAY J.

Some time prior to the commencement of this action, the city council of Kalispell, by ordinances duly passed and approved, created three special improvement districts, the first for constructing sewers, and the other two for building sidewalks. These districts included property belonging, to and used by school district No. 5 of Flathead county for public school purposes exclusively. The school district resisted the efforts of the city to collect any portion of the expense incurred for the improvements, and this action resulted. The cause was tried upon an agreed statement of facts. The district court found in favor of the school district and rendered judgment, from which the city appealed. There is but a single question presented, viz.: Is the property of the school district which is used exclusively for public school purposes exempt from paying assessments for special improvements?

Under constitutional and statutory provisions similar to our own, like questions have been before the courts for many years, and it seems somewhat strange that at this late day the statutes should be found in the same chaotic condition as they were 30 years ago, when the extreme difficulty of properly solving the question propounded above was first called to public attention. These special assessments, though a species of taxation, are not taxes; and it is held uniformly that constitutional and statutory provisions exempting property from taxation have no application to special assessments for improvements which, presumptively, add to the value of the property involved an amount equal to the assessment levied. However, the courts are about evenly divided numerically upon the question whether property devoted exclusively to public use is liable for these special assessments. Many respectable authorities hold such property exempt. Any attempt to explain or reconcile the conflicting decisions is useless. The leading cases most frequently cited in support of the exemption are: Board of Improvement v. Little Rock School Dist., 56 Ark. 354, 19 S.W. 969, 16 L. R. A. 418, 35 Am. St. Rep. 108; Pittsburgh v. Sterrett Subdistrict School, 204 Pa. 635, 54 A. 463, 61 L. R. A. 183; Worcester Co. v. Worcester, 116 Mass. 193, 17 Am. Rep. 159; Atlanta v. First Presbyterian Church, 86 Ga. 730, 13 S.E. 252, 12 L. R. A. 852; City of St. Louis v. Brown, 155 Mo. 545, 56 S.W. 298; Big Rapids v. Supervisors, 99 Mich. 351, 58 N.W. 358; City of Toledo v. Board of Education, 48 Ohio St. 83, 26 N.E. 403; Witter v. Mission School District, 121 Cal. 350, 53 P. 905, 66 Am. St. Rep. 33. Neither the California nor Ohio court gives any reason for its conclusion. The decision from Arkansas was rendered by a divided court; the Chief Justice delivering a forceful dissenting opinion. The Georgia case is not directly in point. The other courts above proceed generally upon the theory that property devoted to public use is presumptively exempt from any sort of tax or assessment; that, though the state may consent to have such property charged, it does not do so, unless, by express legislative authority or by clear implication, it has manifested such intention; that there is an implied exemption in favor of such property; that even a statute in general terms, such as our own section 3396, Revised Codes, which apparently charges all property within the improvement district with its ratable proportion of the expense of the betterment, does not apply to property devoted to public use, particularly so in cases where the Legislature has provided that the assessment becomes a lien upon the property affected. But these courts have encountered difficulty in suggesting any valid reason for the conclusion reached. The Supreme Court of Georgia, in Atlanta v. First Presbyterian Church, above, apparently appreciating this difficulty, has with perfect frankness explained its position --which we think is fairly characteristic of the other courts named--as follows: "That the public property of the United States, the state, the county, or the city was intended to be dealt with thus is so improbable that we can have no hesitation in holding that an implied exception as to all public property can and should be ingrafted upon the act by construction." Even these courts which thus imply an exception in favor of property devoted strictly to public use hold that property, such as churches, hospitals, cemeteries, and the like, though exempt from taxation, are nevertheless subject to special assessments for improvements.

Some of the leading cases holding that property devoted exclusively to public use is liable for special assessments are Franklin Co. v. Ottawa, 49 Kan. 747, 31 P. 788, 33 Am. St. Rep. 396; Adams Co. v. Quincy, 130 Ill. 566, 22 N.E. 624, 6 L. R. A. 155; Edwards v. Jasper Co., 117 Iowa, 365, 90 N.W. 1006, 94 Am. St. Rep. 301; In re Howard Avenue, 44 Wash. 62, 86 P. 1117, 120 Am. St. Rep. 973, 12 Ann. Cas. 417; Hassan v. Rochester, 67 N.Y. 528; Board of Education v. People, 219 Ill. 83, 76 N.E. 75; Roosevelt Hospital v. New York, 84 N.Y. 108; New Orleans v. Warner, 175 U.S. 120, 20 S.Ct. 44, 44 L.Ed. 96. These courts proceed upon the...