Denning v. City of Moscow

• Decision Date: 10 November 1905
• Citation: 11 Idaho 415,83 P. 339
• Parties: DENNING v. CITY OF MOSCOW
• Court: Idaho Supreme Court

83 P. 339

11 Idaho 415

DENNING v. CITY OF MOSCOW

Supreme Court of Idaho

November 10, 1905

WRIT OF PROHIBITION-WILL NOT ISSUE WHEN.

1. Where it is shown that the city authorities are acting within the scope of the authority given therein by statute, the writ will be denied.

2. The writ will not issue to prohibit the officers of a city from levying and assessing city property subject to assessment for the payment of certain bonds, and certify such levy and assessment to the county tax collector for collection "as other taxes are collected" under the provisions of subdivision 10 of section 2 (Sess. Laws 1900) and section 86, page 209 (Sess. Laws 1899).

(Syllabus by the court.)

ORIGINAL action for a writ of prohibition. Denied.

Writ denied.

S. S Denning, for Petitioner, cites no authorities not cited in the opinion.

J. H Forney, for City of Moscow, cites no authorities not cited in the opinion.

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

The plaintiff filed his application for a writ of prohibition. The facts are agreed upon and we are asked to construe certain provisions of the acts of the legislature, seventh session, and of the eighth session. The facts as agreed upon are that "S. S. Denning is the owner of a certain lot of real estate situated within the corporate limits of the city of Moscow. That the said lot of land has been duly assessed and a tax has been levied thereon by the city council of said city of Moscow for the purpose of constructing, maintaining and operating a sewerage system; that if the said city council shall certify the sewerage assessments to the county tax collector of Latah county, state of Idaho that thereby the said assessments will be increased upon property of the said S. S. Denning to the extent of one and one-half per cent, and upon all other property within the corporate limits of the said city of Moscow to the extent of one and one-half per cent costs of collection. That this application is made for the purpose of ascertaining from this honorable court, whether such assessments shall be collected by the proper officers of said city of Moscow or whether the said city council shall certify all such assessments and taxes as are now due to the tax collector of Latah county and collected in the same manner as other city taxes are collected."

It is hereby further stipulated that the bonds heretofore mentioned were to be paid in five equal annual installments, and that no installment has yet been levied. That the city has paid all of its installments upon its municipal property, and that the city is not now, neither have they ever been, indebted under subdivision 3 or 4 of section 2 of the Laws of 1893, page 32, by expending from the general funds any money in consideration of the benefits accruing to the general public by reason of such sewerage improvement, nor has any ordinance ever been passed since the passage of the construction ordinance "providing for the payment of the costs and expenses thereof by installment, instead of levying the entire tax for special assessments for such costs at any one time."

The writ was not issued, the stipulation in its last clause asking that the case be heard as to whether or not the writ shall issue. The action is against the city of Moscow to prohibit the mayor and city council from certifying an assessment and levy to the assessor and tax collector of Latah county for the purpose of paying the first installment of certain sewerage bonds issued under the provisions of an act of the legislature in 1903. Counsel for plaintiff in his brief says: "There is but one question presented," and that is: "What is the proper mode of assessing, levying and collecting the several installments on the bonds in accordance with the act of 1903?" It is shown by the application that during the year 1902 the city council of the city of Moscow duly levied and assessed certain taxes for sewerage improvements and for the purpose of constructing, maintaining and operating a sewerage system within the corporate limits of the city of Moscow; that there is now due and unpaid on said sewerage assessments the sum of $ 28,000.

Counsel for plaintiff insists that by the provisions of the law of 1903, there are two schemes, either of which may be followed for the payment of the indebtedness contracted in the building of the sewer as against the property...