Cole v. City of Lewiston
| Decision Date | 20 December 1930 |
| Docket Number | 5625 |
| Parties | THOMAS W. COLE, Appellant and Cross-Respondent, v. CITY OF LEWISTON, a Municipal Corporation, et al., Respondents and Cross-Appellants |
| Court | Idaho Supreme Court |
MUNICIPAL CORPORATIONS-LOCAL IMPROVEMENT DISTRICT-CREATION OF-REMONSTRANCE-WHO MAY FILE-WITHDRAWAL.
1. Sole resident executor of two estates, having sole management by agreement of other executor and heirs, was qualified to sign remonstrance, as property owner, to creation of paving improvement districts (C. S., sec. 7481).
2. Court was justified in counting remonstrances to paving improvement districts filed by escrow vendees.
3. Property owner's statement that she desired to be neutral had effect of withdrawing protest to creation of paving improvement district.
4. Trial court's finding, supported by oral evidence, would not be disturbed on appeal.
5. Protest of property owner to creation of paving improvement district may be withdrawn so long as right to protest is open.
APPEAL AND CROSS-APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. W. F McNaughton, Trial Judge.
APPEAL AND CROSS-APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. W. F McNaughton, Trial Judge.
Appeal from a decree affirming an order directing the making of certain improvements in an improvement district and dismissing the appeal therefrom. Judgment for defendants. Affirmed.
Judgment affirmed. Costs to respondent. Petition for rehearing denied.
Tannahill & Leeper, R. E. Durham and George E. Erb, for Appellant and Cross-respondent.
A general agent has power to sign a remonstrance. (Mechem on Agency, 2d ed., secs. 739, 798; Duncan v. Hartman, 143 Pa. 595, 24 Am. St. 570, 22 A. 1099; Sencerbox v First Nat. Bank, 14 Idaho 95, 93 P. 369; Fishbaugh v. Spunaugle, 118 Iowa 337, 92 N.W. 58.)
Guardian is manager of estate and has authority to sign remonstrance. (C. S., secs. 7858-7862; Remington's Washington Statutes, sec. 1576; Page & Jones on Taxation by Assessment, sec. 788; Allen v. City of Portland, 35 Ore. 420, 58 P. 509.)
The signature on a remonstrance need not be the personal act of the owner, but may be accomplished by an agent. (Page & Jones on Taxation by Assessment, p. 787; Gleason v. Barnett, 115 Ky. 890, 61 S.W. 20.)
The purported withdrawal of Mrs. C. W. Shaff is not valid. (State v. Porter, 145 Ala. 541, 40 So. 144.)
A vendee in possession is an owner under the assessment statute. (Shaw v. Goben, 167 Mo.App. 125, 151 S.W. 209; Page & Jones on Taxation by Assessment, p. 786; Ahern v. Board of Improvement Dist. No. 3, 69 Ark. 68, 61 S.W. 575; Miller v. Imperial Water Co., 156 Cal. 27, 103 P. 227, 24 L. R. A., N. S., 372; McQueen v. City of Moscow, 28 Idaho 146, 152 P. 799.)
Verner R. Clements and Marcus J. Ware, for Respondents and Cross-appellants.
While a property owner may protest against an improvement through an agent, the protest to be effective must be made by a duly authorized agent of the property owner. (Page & Jones on Taxation by Assessment, p. 787; Gleason v. Barnett, 115 Ky. 890, 61 S.W. 20; City of Columbus v. Sohl, 44 Ohio St. 479, 8 N.E. 299; Findley-Kehl Inv. Co. v. O'Connor, (Mo.) 256 S.W. 798.)
The ratification by the property owner of a protest signed by one purporting to be his agent is ineffectual where the ratification is made after the time set for the hearing on the proposed improvement. (Kansas City v. Cullinan, 65 Kan. 68, 68 P. 1099; Minor v. Board of Control, 20 Ohio C. C. 4; Lipscomb v. Blanz, 163 Ark. 1, 258 S.W. 624.)
A guardian has no authority to protest against an improvement unless authorized by order of the court of his appointment. (C. S., secs. 7842-7883; 1929 Sess. Laws, chap. 279; Gerber v. Bauerline, 17 Ore. 115, 19 P. 849.)
The authority of a guardian is not recognized beyond the limits of the jurisdiction of the state of his appointment, except so far as such recognition is expressly conferred by statute. (Morgan v. Potter, 157 U.S. 195 15 S.Ct. 590, 39 L.Ed. 670; 1 Cooley's Constitutional Limitations, 8th ed., p. 63.)
No particular formality is required in the execution of a protest, and hence no particular form is required for the withdrawal thereof as long as the intent of the property owner is made manifest thereby. (Los Angeles Lighting Co. v. City of Los Angeles, 106 Cal. 156, 39 P. 535.)
A property owner protesting against a proposed improvement may withdraw his protest at any time before final action thereon. (McQueen v. Moscow, 28 Idaho 146, 152 P. 799; Davis v. Henderson, 127 Ky. 13, 104 S.W. 1009; County Court v. Pogue, 115 Ill.App. 391; Cowles v. School District, 88 Kan. 603, 129 P. 176; City of Sedalia v. Montgomery, 109 Mo.App. 197, 88 S.W. 1014; Id., 227 Mo. 1, 127 S.W. 50; State v. City of Independence, 114 Kan. 837, 221 P. 245.)
Hawley & Worthwine, Amici Curiae.
McNaughton, J., disqualified.
The City of Lewiston under its special charter, 1907 Sess. Laws, 349, initiated a paving improvement district, the expenses to be a charge against the property included within such improvement district.
The controversy herein, resulting from the opposition of certain taxpayers, involves only the question of how many property owners there were in such district, the validity of certain remonstrances and withdrawals of remonstrances, and the time when remonstrances or withdrawals might be filed with, and considered by the city council.
In compliance with sections 172-200 of the special charter, the date before which remonstrances had to be filed was fixed as 10 o'clock A. M. September 16, 1929. At that time, as it was afterward determined by the council, and the trial court upon appeal found upon sufficient evidence, thus disposing of this phase of the controversy, there were ninety-seven property owners within the territory of the proposed improvement district.
The appellant contends that there should have been counted as valid, the remonstrances filed by Arthur E. Clarke, as executor of the estates of J. P. Vollmer and S.E. Vollmer, respectively; five escrow vendees; two remonstrances filed by S. O. Tannahill as agent for the estates of Clara H. Kilham and Anna L. Brannon, respectively; and John Applewhite as the attorney or agent of F. W. Webster; and that the withdrawal of Mrs. C. W. Schaff from her previously filed remonstrance should not have been considered.
All of the withdrawals or remonstrances specified were on file prior to 10 o'clock A. M. September 16, 1929. At that time when the council met, the meeting was adjourned until 7:30 that evening, at which time two additional remonstrances had been filed, one by the Lutheran Church, and one by Dave C. Harvey. Four withdrawals had been filed by Iva S. Morton, W. E. Thayer, Franklin Grant and Wayne H. Carpenter.
Appellant takes the position that these withdrawals should not be considered because filed too late, but that the remonstrances should have been considered. The city inclines to the opposite view.
The charter, section 170, provides that if more than one-half of the owners of property remonstrate, the improvement may not be made. To organize the district no petition is necessary. The only action contemplated on the part of the property owners is thus of a negative nature, and is to prevent the formation of the district.
A. E Clarke was the only executor of the two Vollmer estates in this state, C. S., 7481, and by agreement of the other executor and the heirs and devisees he had the sole management and control of the estates, which justified the trial court in considering him as...
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