Ellison v. City of Lamoure
| Decision Date | 27 March 1915 |
| Citation | 30 N.D. 43,151 N.W. 988 |
| Parties | ELLISON v. CITY OF LAMOURE et al. |
| Court | North Dakota Supreme Court |
The Legislature, in exercise of its general powers, may direct, subject to constitutional restrictions, that the cost of local improvements be assessed upon property benefited, and this power may be delegated to municipalities.
The Legislature may also confer upon such municipalities the power to levy special assessments upon property benefited to pay the cost of such improvements, and may leave to municipal officers the determination of what property is benefited, and hence liable to assessment, and the amount of such benefits.
A sewer is constructed in the exercise of the police power for the health and cleanliness of the city, and the police power is exercised solely at the legislative will.
The determination of a territorial district to be taxed for a local improvement is within the province of legislative discretion.
In this state, the Legislature has conferred upon the city council the power to establish a system of sewerage, create sewer districts, and determine the necessity for the construction of sewers.
The Legislature has created the special assessment commission a tribunal to determine the benefits, if any, accruing to the various parcels of land within the sewer district, and reserved in the city council the power to review the action of the special assessment commission in the assessment of such benefits.
A special assessment commission, appointed under statutory authority and acting regularly in the discharge of its statutory duties, is exercising functions quasi judicial in character, when it assesses the benefits to lands in the sewer district.
A city council, in reviewing the action of the special assessment commission in assessing such benefits, is also exercising functions quasi judicial in their character.
When the special assessment commission and city council have, in all things, proceeded in accordance with the statutory requirements, their action is final, after the assessment has been confirmed and approved by the city council, unless assailed for fraud, or other ground for equitable interference.
Such equitable action must be brought within six months after such assessment is approved by the city council; otherwise it is barred under the provisions of section 3715, Compiled Laws.
Appeal from District Court, La Moure County; Coffey, Judge.
Action by E. O. Ellison against the City of La Moure, a municipal corporation, and another. From judgment for defendants, plaintiff appeals. Affirmed.S. E. Ellsworth, of Jamestown, for appellant. W. J. Hughes, of La Moure, for respondents.
This is an action to set aside a special assessment for the construction of a sewer in the city of La Moure and to enjoin the defendants from enforcing the collection thereof. The defendants prevailed in the district court, and plaintiff appeals and asks for a trial de novo. The material facts are not in dispute. No attack is made upon the regularity of the proceedings of the special assessment commission or the city council, but, on the contrary, it is conceded that these proceedings were had in accordance with the provisions of the statutes relative thereto. The special assessment commission assessed the amount of the benefit resulting to plaintiff's property at $920.52, and levied a special assessment against such property in the sum of $751.52. It is admitted that the plaintiff appeared before the special assessment commission at a meeting held under the provision of section 3726, Compiled Laws, and objected to the assessment, that such objections were overruled by the commission,and that thereafter, on or about March 18, 1911, the commission returned to and filed the assessment list in the office of the city auditor of said city of La Moure. The plaintiff appealed from the action of the commission, and thereafter, at a hearing before the city council, held on April 26, 1911, under the provisions of section 3728 of the Compiled Laws, the plaintiff appeared and presented his protest against the assessment, but the city council, after such hearing, approved and confirmed the findings of the special assessment commission including the assessment against plaintiff's property. Plaintiff took no further proceedings in the matter until he commenced this action on March 13, 1912, almost 11 months after the assessment had been so confirmed and approved by the city council. There are no allegations in complaint that the special assessment commission or the city council were in any manner guilty of fraud, and plaintiff's counsel expressly admits that no such contention is made, but asserts that the assessment was so grossly excessive as to be fraudulent as a matter of law.
The property involved consists of a 40-acre tract of land situated within the city limits of the city of La Moure. It appears that a large portion, if not the whole, of this tract was at one time platted, but the plat was subsequently vacated. This tract lies directly south of Fourth street in the city of La Moure. The sewer in question is laid in Fourth street along the entire north side of the property involved herein. Directly across the street from the tract involved are various lots and blocks, some improved and some unimproved. It is not contended that the amount assessed against plaintiff's property is greater or disproportionate to that assessed against the property abutting on the sewer on the other side of the street. The only buildings on the tract involved are the buildings of the plaintiff. It is conceded by counsel for the respective parties that at some prior date a special assessment was levied against the plaintiff's property for a very much greater sum than the one involved in this action, and that upon a hearing before the city council, it sustained plaintiff's protest and refused to approve the assessment as then made by the special assessment commission, and at the request of the plaintiff and his counsel the entire assessment was referred back to the special assessment commission, and that the assessment involved herein was then subsequently made.
Plaintiff called as one of his witnesses a member of the special assessment commission, who testified that before the assessment in question was levied the commission carefully examined the various tracts of land and assessed the benefits accruing to each tract from the construction of the sewer.
[1][2] It is well established that the Legislature in exercise of its general powers may direct, subject of course to constitutional restrictions, that the cost of local improvements be assessed upon property benefited, and may delegate this power to municipalities. It may also confer upon such municipalities the power to levy special assessments upon property benefited to pay the cost of such improvement, and may leave to the municipal officers the determination of what property is benefited and hence liable to assessment. 28 Cyc. 1102, 1103. The law may provide for hearing, before the body which levies the assessment, and after such hearing may make the decision of that body conclusive. Although in imposing such assessments the municipal authorities may be acting somewhat in a judicial character, yet the foundation of the right to assess exists in the taxing power, and it is not necessary that in imposing an assessment there must be a hearing before a court provided by the law in order to give validity to such assessment. Hibben v. Smith, 191 U. S. 310, 321, 24 Sup. Ct. 88, 48 L. Ed. 195. See, also, Chadwick v. Kelly, 187 U. S. 540, 23 Sup. Ct. 175, 47 L. Ed. 293.
Section 3697 of the Compiled Laws authorizes the city council to establish a system of sewerage, and section 3698 grants the power to create sewer districts. In this case it is conceded that such system of sewerage was established and such sewer district created. It is also conceded that the property involved herein is all situated within the sewer district so created by the city council.
[3][4] There is no claim in this case that the city authorities did not have jurisdiction to establish the sewer and do all things necessary for its construction. In Paulsen v. City of Portland, 149 U. S. 30, 13 Sup. Ct. 750, 37 L. Ed. 637, it is said:
.”
The only question sought to be raised in this action is that the property was not benefited, or...
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...body and its judgments are final unless fraud or some other ground justifying equitable interference is shown to exist. Ellison v. La Moure, 30 N.D. 43, 151 N.W. 988. while this court has held that the judgment of the special assessment commission is not conclusive, and will be set aside by......
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Wirtz v. Nestos
...and security and the consequential increase in revenue-producing business. See State v. Newark, 27 N. J. Law, 190; Ellison v. La Moure, 30 N. D. 43, 151 N. W. 988;Rolph v. Fargo, 7 N. D. 640, 76 N. W. 242, 42 L. R. A. 646. The fund, thus created, is a public fund, created through the exerci......