Fisher v. City of Minot

• Decision Date: 23 June 1971
• Docket Number: No. 8709,8709
• Citation: 188 N.W.2d 745
• Parties: H. H. FISHER and Bert H. Van de Streek, on behalf of themselves and all other taxpayers of the City of Minot, State of North Dakota, Plaintiffs and Appellants, v. The CITY OF MINOT, a municipal corporation, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 745

188 N.W.2d 745

H. H. FISHER and Bert H. Van de Streek, on behalf of themselves and all other taxpayers of the City of Minot, State of North Dakota, Plaintiffs and Appellants, v. The CITY OF MINOT, a municipal corporation, Defendant and Respondent.

Civ. No. 8709.

Supreme Court of North Dakota.

June 23, 1971.

Syllabus by the Court

1. When an appellant demands a trial de novo and a retrial of the entire case in an appeal from an action tried to the court without a jury, the findings of the trial court will be given appreciable weight by the Supreme Court, especially where such judgment is based upon the testimony of witnesses who appeared in person before the trial court.

2. It is within the power of the legislature of the State to create special taxing districts, and to charge the cost of a local improvement, in whole or in part, upon the property in said districts, either according to valuation, or superficial area, or frontage.

3. 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.

4. In ascertaining the intent and general purpose as well as the meaning of a constitution or a part thereof it should be construed as a whole, and all doubt as to the constitutionality of a statute including doubts arising from the constitution as well as from the statute should be resolved in favor of the validity of the statute and the statute will be upheld unless it clearly appears that it violates some provision of the constitution.

5. In this jurisdiction an opportunity to be heard with right of review upon the question of assessments for benefits is all that is required to satisfy the due process provisions of the Constitutions of the United States and North Dakota.

6. A judicial review of the question of benefit or detriment to the property owners within the parking district is premature until after the special assessment commission has caused to be made a complete list of the benefits and assessments and has confirmed the list for certification to the office of the city auditor.

7. For the reasons stated in this opinion, the one man, one vote doctrine does not apply in this case.

8. For the reasons stated in the opinion, the judgment of the district court is affirmed.

Pringle & Herigstad, Minot, for the plaintiffs and appellants.

Bosard, McCutcheon, Kerian & Schmidt, Minot, for the defendant and respondent.

PAULSON, Judge.

This is an appeal from a taxpayers' class action requesting the district court to enjoin the City of Minot from proceeding with the construction of a municipal parking lot in downtown Minot, and to dissolve the special improvement district which was established to fund the construction of such lot. Two other suits were brought against the City of Minot for the same purposes and were consolidated with the instant case for trial.

The action came on before the court without a jury on February 22, 1971, and at the close of the plaintiffs' case the court granted the motion of the City of Minot to dismiss the action. Appellants H. H. Fisher and Bert H. Van de Streek appealed from the judgment dismissing the action and demanded a trial de novo of the entire case in this court. This case arose out of the decision of the City of Minot to construct a large surface parking lot in its downtown area which would cover one-half of a city block. For a considerable period of time prior to the City of Minot's decision to construct this parking lot, numerous newspaper articles and local radio and television programs relating to merchants and downtown property owners who sought additional parking were published and broadcast. The City of Minot is operated under a city council-city manager form of government, with fourteen aldermen, a city manager, and a mayor.

The sequence of events pertaining to the action taken by the City of Minot is as follows:

On June 1, 1970, the City of Minot adopted a resolution creating Parking Improvement District No. 4.

On September 30, 1970, the Minot City Engineer, Burt Peckham, submitted to the Minot city council in writing the figures based upon the engineers' and appraisers' estimates of the costs of such parking district.

On October 5, 1970, the Minot city council passed a resolution approving the plans, specifications, and estimates of costs of the project. On this same date, a resolution was also passed declaring the necessity of Parking Improvement District No. 4.

On October 7 and on October 14, 1970, the resolution of necessity was published in the Minot Daily News, the official newspaper, declaring the necessity of Parking Improvement District No. 4.

The minutes of the city council meeting of November 9, 1970, reveal that the area represented by protests against the improvement proposed for Parking Improvement District No. 4 was only 31.1 per cent of the total assessable square footage in the improvement district.

Also, on November 9, 1970, a resolution was passed by the city council which stated that the City of Minot had heard the protesting property owners and had determined that there was an insufficiency of protest wth reference to Parking Improvement District No. 4.

There are three issues raised on this appeal:

(1) Did the City of Minot, in creating Parking Improvement District No. 4, act in an arbitrary, unreasonable, or capricious manner?

(2) Are those sections of Chapter 40--22, N.D.C.C., under which the City of Minot proceeded, unconstitutional?

(3) Is § 40--22--18, N.D.C.C., in violation of the 'one man, one vote' principle enunciated by the United States Supreme Court?

The relevant constitutional and statutory provisions are as follows:

U.S.Const., Art. XIV, § 1. 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

N.D.Const. § 13. '* * * No person shall * * * be deprived of * * * property without due process of law.'

N.D.Const., § 130. 'Except in the case of home rule cities and villages as provided in this section the legislative provided shall provide by general law for the organization of municipal corporations, restricting their powers as to levying taxes and assessments, borrowing money, and contracting debts. Money raised by taxation, loan or assessment for any purpose shall not be diverted to any other purpose except by authority of law. * * *'

§ 40--22--01, N.D.C.C. 'Power of municipalities to defray expense of improvements by special assessments.--Any municipality, upon complying with the provisions of this chapter, may defray the expense of any or all of the following types of improvements by special assessments:

'5. The acquiring or leasing of the necessary property and easements and the construction of parking lots, ramps, garages, and other facilities for motor vehicles.

'In planning an improvement project of a type specified in any one of the foregoing subsections, the governing body may include in such plans any and all items of work and materials which in its judgment are necessary or reasonably incidental to the completion of an improvement project of such type.'

§ 40--22--08, N.D.C.C. 'Improvement districts to be created.--For the purpose of making an improvement project of one of the types specified in section 40-- 22--01 and defraying the cost thereof by special assessments, a municipality may create water districts, sewer districts, water and sewer districts, street improvement districts, boulevard improvement districts, flood protection districts, and parking districts, and may extend any such district when necessary. The appropriate special improvement district may be created by ordinance or resolution. The district shall be designated by a name appropriate to the type of improvement for the making of which it is created, and by a number distinguishing it from other improvement districts. Nothing herein, however, shall prevent a municipality from making and financing any improvement and levying special assessments therefor under any alternate procedure set forth in this title.'

§ 40--22--09, N.D.C.C. 'Size and form of improvement districts--Regulations governing.--Any improvement district created by a municipality may embrace two or more separate property areas. Each improvement district shall be of such size and form as to include all properties which in the judgment of the governing body, after consultation with the engineer planning the improvement, will be benefited by the construction of the improvement project which is proposed to be made in or for such district, or by any portion or portions of such project. A single district may be created for an improvement of the type specified in any one of the subsections of section 40--22--01, notwithstanding any lack of uniformity among the types, items or quantities of work and materials to be used at particular locations throughout the district. The jurisdiction of a municipality to make, finance and assess the cost of any improvement project shall not be impaired by any lack of commonness, unity, or singleness of the location, purpose or character of the improvement, or by the fact that any one or more of the properties included in the district is subsequently determined not to be benefited by the improvement, or by a particular portion thereof, and is not assessed therefor. There may be omitted from a water or sewer district, in the discretion of the governing body, properties within the corporate limits which are benefited by the improvement therein but do not abut upon a...