Gallaher v. City of Fargo

• Decision Date: 12 May 1954
• Docket Number: No. 7433,7433
• Parties: GALLAHER et al. v. CITY OF FARGO.
• Court: North Dakota Supreme Court

Page 444

64 N.W.2d 444

GALLAHER et al. v. CITY OF FARGO.

No. 7433.

Supreme Court of North Dakota.

May 12, 1954.

Syllabus by the Court.

1. As used in our statute, 'a majority of the property liable to be specially assessed' by application of the ordinary sense and meaning to the same, has reference to a majority or more than half of the area liable to be specially assessed, which is most accurately ascertainable on the basis of square footage. NDRC 1943, 40-2218.

2. City owned property within a paving improvement district is subject to special assessments and the levying of special assessments for benefits for improvements on such property and the assessment thereof is not in violation of Section 176 of the North Dakota Constitution. 1953 Supp., 40-2307.

3. Property owners within an improvement district established by the governing body of a municipality may withdraw from protest petitions signed by them before final action thereon at the next meeting of the governing body held after the expiration of the time for filing such protests, since jurisdiction to proceed or not to proceed with the improvement is a matter of the determination of the sufficiency or insufficiency of the protest petitions filed. NDRC 1943, 40-2217.

4. Only property especially benefited may be specially assessed for an improvement established by the governing body of a municipality, and only the area subject to special assessments should be considered, and the assessment commission and the governing body which ultimately confirms the assessment list has discretion to determine the boundaries of the property benefited. That determination is not subject to review in absence of fraud, bad faith or arbitrary action.

5. The plaintiffs in this action have the burden of establishing that a sufficient protest was filed, and for reasons stated in the opinion they have failed to sustain that burden. Jones v. City of Hankinson, 48 N.D. 618, 186 N.W. 276.

Quentin N. Burdick, Fargo, for appellants.

Wattam, Vogel, Vogel, Bright, & Peterson, Fargo, for respondent.

JOHNSON, Judge.

This is an action brought by Verner Gallaher and other similarly situated for a declaratory judgment. It involves paving improvement district No. 2901 in the City of Fargo. The complaint asks that the court declare and determine that the plaintiffs are the majority owners of the property located in said district, and that they and other protestants filed a sufficient protest to bar the defendant from proceeding further with the improvement of said paving district. The answer of the defendant denies the contention of the plaintiffs that the owners of more than half of the property liable to be specially assessed protested, and asks for a decree that the action of the defendant in the premises is in all things legal and proper and that the City Commission of the City of Fargo has the power, authority and jurisdiction to proceed with paving improvement district No. 2901. No procedural objections were raised.

Many of the essential facts involved in this action have been agreed upon by the parties. They stipulated that the Commission of the City of Fargo has complied with the provisions of Chapter 40-22 of the North Dakota Revised Code of 1943 in the creation of special improvement district No. 2901. The parties have also agreed that the sole issue in this action is whether or not the governing body of the City of Fargo is barred from proceeding with the paving of improvement district No. 2901 by reason of the protest petitions filed.

The principal controversy centers around the determination as to whether the Clarence Marsh, the Albert Vote and the Mabelle Reppen properties should have been counted in determining the sufficiency and validity of the protest petitions. It also involves the determination of whether or not C. J. Illgen, Frank R. Jones, Gust Hayertz and Olai Williams should have been allowed to withdraw from the protest petitions before the same were finally acted upon by the city commission, and whether city owned property should be considered as nonprotesting property.

Mr. and Mrs. K. H. Smart have property in Block L1, Erskine's Addition, fronting on Fifth Street South. This property is held by them as joint tenants. Mrs. Smart was authorized to sign a protest by her husband. They also own property in another addition but that was not within improvement district No. 2901. Block L1 of Erskine's Addition was considered on the basis of a full block and also on the basis of a half block in an effort to determine whether a majority of the property specially liable to be assessed was involved in the protest petitions. Lots 3 to 12 in Block Mm same addition were also considered on the same basis and the east 46 feet of Lots 1 and 2 in said block.

Mabelle Reppen signed the protest petition. She was, at the time, a joint tenant with right of survivorship with Inga Bjoralt of Lot 24, Block 4, Woodruff's Addition to the City of Fargo. The deed is dated October 15, 1951. It was recorded July 23, 1952.

The resolution declaring paving necessary was passed by the City Commission of Fargo on the 3rd day of June, 1952, and published June 6th and June 13, 1952. It recites: 'Protests against the proposed paving improvement must be in writing and must be filed with the City Auditor within thirty (30) days after the first publication of this Resolution.' Thirty days after the first publication would terminate on the 7th day of July. The deed of Inga Bjoralt and Mabelle Reppen was not of record at the time the protest petitions were filed July 3, 1952, in the office of the city auditor, but was of record before final action on the protest petitions.

Evelyn M. Eichelberger formerly Evelyn M. Hample entered into a contract for deed dated April 26, 1947, with Albert Vote covering certain real property within the paving improvement district. The contract for deed was recorded in the office of the Register of Deeds of Cass County July the 2nd, 1952. Evelyn M. Eichelberger did not join Albert Vote in protesting the pavement project.

Clarence R. Marsh obtained a warranty deed from the Fargo-Detroit Ice Company, a corporation, dated April 20, 1951, covering real property within the pavement improvement district. This deed was recorded July the 11th, 1952, three days after time for filing of protests had expired, but before final action on the protest petitions.

The protest petitions were placed in the hands of the city engineer for checking and report to be made at a meeting to be held July 15, 1952. He reported that based on benefits the protest petitions represented 47 per cent of the affected property. The protests were presented to the city commission on July 8, 1952, five days after they had been filed. The facts disclose that on July 15, 1952, the city commission considered the protesting petitions and declared them insufficient. This constituted the final action of the governing body of the municipality contemplated by the statute on the protest petitions. The right of withdrawal from the protest petitions is no longer available after this action is taken. The city commission did at subsequent meetings consider the protest petitions but such consideration is immaterial here.

In determining the sufficiency and the validity of the protest petitions city property was included in the area involved. It is contended by the plaintiffs that, on the basis of the evidence presented owners of a majority of the property liable to be specially assessed for the improvement involved, filed sufficient and valid protest petitions and that this did bar further proceedings with reference to pavement improvement district No. 2901.

It is also contended by the defendant that the action of the board of city commissioners finding the protest petitions insufficient and invalid is conclusive. In view of our determination that the protest petitions were in fact insufficient and invalid and did not contain the names of the owners of 'a majority of the property liable to be specially assessed for the improvement', it is unnecessary to determine that issue.

The plaintiffs and appellants have demanded a trial de nove.

The whole record indicates that the conclusion of the trial court that the protest petitions were insufficient and invalid is sustained by the evidence.

The determination of the legal questions presented involve the interpretation of Section 40-2218 of the North Dakota Revised Code of 1943, which reads as follows:

'If the governing body finds the protests to contain the names of the owners of a majority of the property liable to be specially assessed for the improvement involved, the protests shall be a bar against proceeding further with such improvement. If the protests are found to be insufficient or invalid, the governing body may cause the improvement to be made and may contract and may levy and collect assessments therefor.' (Italics supplied.)

The construction of the above statute involves the meaning to be placed on the phrase, 'a majority of the property liable to be specially assessed'. Several methods are suggested based on front footage, benefits and square footage of the area involved in the improvement district. A clue as to the meaning of the statute is perhaps to be obtained from its legislative history. The first statute referring to the powers of a city to pave a street is contained in Chapter 73 of the Laws of Dakota, 1887. Article XV, Sec. 15 provided as follows:

'* * * and if a majority of the owners of the property liable to be assessed therefor shall not within twenty days after the expiration of such publication file with the city auditor a written protest against such improvement, then the city council shall have power to cause such improvement to be made, and to contract thereof, * * *.' (Italics supplied.)

Section 143 of Chapter 62 of the Laws of 1950 was a comprehensive statute for the reorganization and government of cities, giving them power...