Cowan v. State ex rel. Blanchar, 2135
| Citation | 55 Wyo. 427,100 P.2d 427 |
| Decision Date | 26 March 1940 |
| Docket Number | 2135 |
| Parties | COWAN ET AL v. STATE EX REL. BLANCHAR |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Natrona County; JAMES H. BURGESS Judge.
Mandamus proceeding by the State, on the relation of E. O. Blanchar and others, against J. F. Cowan and others, as mayor and councilmen of the city of Casper, Wyoming. To review a judgment granting a peremptory writ, defendants bring error.
Affirmed.
For the plaintiffs in error, there was a brief by Hagens & Wehrli of Casper, and oral argument by Mr. Wehrli.
The City of Casper is without jurisdiction to make a reassessment, the ordinance providing therefor not having been passed within ten years of the adjudication of the invalidity of the original assessment. Sec. 22-1545, R. S. A valid assessment cannot be levied, except in accordance with the statute applicable thereto. 44 C. J. 492, § 2822; 44 C. J. 493, § 2823; 44 C. J. 596, § 3001; McQuillen Municipal Corporations (2d Ed.) Vol. 5, p. 598; Prevo v City of Hammond (Ind.) 116 N.E. 584; Wilt et al. v Beeter (Ind.) 111 N.E. 926; Turner v. Sievers (Ind.) 126 N.E. 504; Birmingham v. Wills (Ala.) 59 So. 173; Pettit v. Duke (Utah) 37 P. 568; Moore v. City of Nampa, 18 F.2d 860; Bass v. City of Casper (Wyo.) 205 P. 1008. An assessment not made within the time permitted by statute is void. 44 C. J. 781, 782, §§ 3366, 3368; McQuillen on Municipal Corporations, (2d Ed.) Vol. 5, § 2230; Pierce v. City of Huntsville (Ala.) 64 So. 301; King v. Board of Aldermen (Mass.) 142 N.E. 698. Section 22-1545, R. S. is not merely a statute of limitations, but is of the essence of the right itself, and in such case, when the time has run, the right is extinguished, and there is no relief from the operation of the statute. 37 C. J. 686; Hester v. City of Brockton, 146 N.E. 224; Melnik v. Perwak (Mass.) 4 N.E.2d 329; Westcott v. Young (Mass.) 175 N.E. 153; Shinn v. New York, C. & St. L. Ry. Co. (Ohio) 156 N.E. 230; De Martino v. Sieman (Conn.) 97 A. 765; Davis v. Mills, 194 U.S. 451; Automobile Sales Company v. Johnson (Tenn.) 122 S.W.2d 453; Bartlett v. Manor (Ind.) 45 N.E. 1060. There is no room for doubt as to the intent of the legislative enactment. King v. Board of Aldermen (Mass.) 142 N.E. 698; Frye v. Town of Mt. Vernon, 84 P. 864; Bass v. City of Casper, 28 Wyo. 387. Relator's bonds were issued under the provisions of Chapter 120, Laws 1915, now Article 15 of Chapter 22, R. S. 1931, except a portion thereof which appears in Article 16 of said Chapter 22. At the time these bonds were issued and at the time of their acquisition by relators, Section 22-1614, R. S. 1931 was in effect. Purchasers of these bonds were warned by the statutes as to their remedy in case of non-payment. 81 F.2d 452; City of Olympia v. Knox (Wash.) 95 P. 1090; Frye v. Town of Mount Vernon, supra. Relators' action is barred by the statute of limitations. Article 15, Chapter 22, § 1545, R. S. The commencement of actions is defined by Section 89-301, 416, 417, R. S. Mandamus is a civil action. 38 C. J. 542, 543; Pioneer Canal Company v. Akin, 27 Wyo. 88; Sec. 89-4501, 4503, 4507, R. S. The commencement of an action relates back to the date of the issuance of summons. Sec. 89-416, 417, R. S. The action was instituted more than ten years after the only adjudication of the validity of the assessment which has ever been made, to-wit on May 17, 1927, and is therefore barred by the statute. Mandamus will not lie to coerce discretionary action on the part of a public officer or board, where the legal right thereto is not clear. State v. Ellis, 37 Wyo. 124.
For the defendants in error, there was a brief by R. N. Ogden of Casper, Wyoming, and Carl M. Little of Portland, Oregon, and oral argument by Mr. Ogden.
The statutes authorize reassessments. Sec. 22-1542 and 1544, R. S.; Henning v. Casper, 57 P.2d 1264; Blanchar v. City of Casper, 81 F.2d 452. There is no conflict in the evidence as to insufficiency of the original assessments to pay the bonds. The defense of the statute of limitations is urged under Sec. 22-1545, R. S. The controlling date of the commencement of time under the limitation statute is April 19, 1928. Mandamus procedure is prescribed by Sec. 89-4503, R. S.; State v. Barber, 32 P. 14. The action was commenced two months prior to the expiration of the ten year period. Vincent v. McElvain (Ill.) 136 N.E. 502; Smith v. Ormsby, 72 Am. St. Rep. 110; Belton v. Sterling (Tex.) 50 S.W. 1027. Prior to the filing of the petition for mandamus, and on November 10, 1936, relators had made the statutory written demand on the city for reassessment, with no right of action until the City had acted upon the demand, or until a reasonable time had elapsed without action. There is nothing in the record to disclose that the city had acted thereon to this time, except by its resistance to the present action. The limitation period did not commence until the city had taken final action. Ex parte Russell, 20 L.Ed. 632; 25 C. J. 1131; 2 Words and Phrases, 2nd Series, p. 562; Lewis v. City of Seattle, 69 P. 398; Hemen v. City of Ballard, 47 P. 970; Klump v. Thomas, 162 F. 853; Irvine v. Bankard, 181 F. 212; Pennock v. Wilson, 216 P. 847. The petition was filed more than fourteen months before the expiration of the ten year period, starting April 18, 1928. The right to make a reassessment was not barred. Shaw & Hodgins v. Waldron, 104 P. 272; In re Improvement District, 147 P. 201; Bank & Trust Co. v. Johnson (Fla.) 136 So. 452.
This is a mandamus action on the relation of holders of special assessment bonds to compel the Mayor and Councilmen of the City of Casper to make a reassessment to cover a deficiency in the original assessment for payment of the bonds. After a trial, a peremptory writ was issued as prayed in the petition, and defendants prosecute error. Their contention is that they do not now have power to make a reassessment.
The improvement was paving. The district was created, assessment made, work completed and bonds issued under an act of 1915 which appears as sections 22-1501, et seq., R. S. 1931. The council is authorized, and by mandatory language directed, to make reassessments whenever "the amount assessed shall not be sufficient." Section 22-1542. Defendants rely on a limitation placed on this authority by section 22-1545, which reads as follows:
"No city or town shall have jurisdiction to proceed with any re-assessment or supplemental assessment unless the ordinance ordering the same shall be passed by the council or other legislative body of such city or town within ten years from and after the time the original assessment for any such improvement was finally held to be invalid, insufficient or for any cause set aside, in whole or in part, held void or its enforcement denied directly or indirectly by the courts; or, in the case of supplemental assessments, from and after the time that it was finally determined that the total amount of the valid assessments levied and assessed on account of any such improvement was insufficient to pay the whole or that portion of the cost and expense thereof to be paid by special assessment."
Defendants cite authorities holding that an action for mandamus to compel a reassessment is barred if not commenced within the period during which the assessing body is authorized to reassess. See Frye v. Mt. Vernon, 42 Wash. 268, 84 P. 864; State ex rel. Seymour v. Slater, 53 Wash. 608, 102 P. 651. We assume that this is so, and inquire whether the present action was commenced within ten years after it was "finally held" or "finally determined" that the original assessment was insufficient. The facts material on the question were stipulated. The paving district included the right of way of a railway company. The company contested the assessment by proceedings in which an appeal was taken to the district court where a trial was had and, on May 17, 1927, a judgment entered in favor of the railway company, "annulling the assessment theretofore made against its right of way." An appeal from the judgment was taken to the supreme court, and thereafter while the appeal was pending the parties agreed that it would be dismissed on consideration of payment of $ 20,000 by the railway company to the city on behalf of the paving district. The agreement was carried out. The appeal was dismissed on April 18, 1928, and on the next day the assessment against the railway company's right of way was credited with $ 20,000. The stipulation of facts recites: "That by said settlement and dismissal of said action between the railway company and said city, the judgment of the District Court became binding and final, and it was no longer possible for the city or these relators to enforce the payment of the original lien on behalf of Paving District No. 14 against the right of way of the railway company; that in consequence, the assessment liens in Paving District No. 14 were and are insufficient * * * to pay the bonded indebtedness existing against the properties in said improvement district, and deficiency exists accordingly."
There is here an apparent mistake in the reference to "dismissal of said action." The word "action" should read "appeal." The action was not dismissed but, on the other hand, the judgment therein "became binding and final" by the settlement that included a dismissal of the appeal. As the parties have stipulated that the judgment of May 17, 1927 became final on April 18, 1928, it is perhaps unnecessary for us to say that we agree that the stated conclusion follows from the stipulated facts theretofore recited. The controversy between the railway company and the city was not terminated until the settlement was perfected, and...
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