Hawley v. City of Butte

• Decision Date: 29 March 1917
• Docket Number: 3986.
• Citation: 164 P. 305,53 Mont. 411
• Parties: HAWLEY v. CITY OF BUTTE.
• Court: Montana Supreme Court

164 P. 305

53 Mont. 411

HAWLEY v. CITY OF BUTTE.

No. 3986.

Supreme Court of Montana

March 29, 1917

Appeal from District Court, Silver Bow County; J. B. McClernan Judge.

Suit by Anna E. Hawley against the City of Butte for an injunction. Judgment for defendant, and plaintiff appeals. Affirmed.

W. E Carroll, of Butte, for appellant.

John A Groeneveld, Thomas D. Long, Louis F. Lorenz, N. A. Rotering and Fred Furman, all of Butte, for respondent.

HOLLOWAY J.

The city of Butte undertook to create a special improvement district for paving and other purposes. Within the time allowed by statute a protest was filed with the city clerk by persons owning more than 50 per cent. of the real estate included within the proposed district. On the day following and within the same period certain of the persons who signed the protest notified the council in writing that they withdrew their objections to the creation of the district. When the council came to consider the subject, it eliminated the withdrawals from the protest and found that the protest, as thus changed, contained the signatures of the owners of only 46 per cent. of the area embraced within the proposed district, and was therefore insufficient. It passed a resolution creating the district and directed the clerk to advertise for bids, and this suit was then instituted by one of the protestants to enjoin the city from proceeding further. The cause was submitted for decision upon an agreed statement of facts. The trial court found for defendant, and plaintiff appealed.

In the agreed statement counsel for the respective parties submitted to the court but a single question: May a property owner who has signed a protest against the creation of a special improvement district within the period allowed for presenting such protest withdraw therefrom and thereby defeat the protest? It was conceded by both parties that, if the withdrawals were not properly allowed, the protest was sufficient to defeat the project, whereas, if the withdrawals were properly allowed, the council correctly held the protest insufficient.

The statutes governing the creation of special improvement districts in cities and towns (chapter 89, Laws 1913, as amended by chapter 142, Laws 1915) provide for a resolution by the city council expressing its intention to create the district in contemplation and for notice to every one having property within the proposed district. Within 15 days after the first publication of the notice, any owner of property liable to assessment for the work may make protest in writing and file such protest with the city clerk. At the next regular meeting of the council after the expiration of the time for filing protests the council shall hear and pass upon all protests. If no protests are filed, or if protests are filed which are found to be insufficient or are overruled or denied, "immediately thereupon the city council shall be deemed to have acquired jurisdiction to order the proposed improvement." There is not any provision in the statute...