Hinzeman v. City of Deer Lodge

• Decision Date: 18 October 1920
• Docket Number: 4633.
• Parties: HINZEMAN ET AL. v. CITY OF DEER LODGE ET AL.
• Court: Montana Supreme Court

193 P. 395

58 Mont. 369

HINZEMAN ET AL. v. CITY OF DEER LODGE ET AL.

No. 4633.

Supreme Court of Montana

October 18, 1920

Appeal from District Court, Powell County; George B. Winston, Judge.

Action by Henry Hinzeman and J. A. Kerruish against the City of Deer Lodge and others. From an order denying an application for an injunction, plaintiffs appeal. Reversed.

S. P Wilson, of Deer Lodge, for appellants.

W. E Keeley, of Deer Lodge, for respondents.

COOPER J.

On December 23, 1919, the city council of the city of Deer Lodge adopted Resolution No. 204, signifying its intention to create a special improvement district for the purpose of paving Main street, under the provisions of chapter 142 of the Session Laws of 1915. The notice therein prescribed appeared in the issue of the Powell County Post of January 2 1920, published and circulated in the city of Deer Lodge and elsewhere. A protest in writing was made by a majority of the property owners affected, including the plaintiffs, against the creation of the district. It was filed in the office of the city clerk upon the 19th day of January, 1920, and by the city council overruled. It appears that the resolution of intention, at the time it was published, had not been and was not signed by the mayor until the date on which the protest was filed. The trial court found that Resolution No. 204 was legally passed and adopted, although the notice of intention was published prior to the approval of the resolution by the mayor. Application for an injunction was instituted against the mayor and council of the city in the court below to stop the construction of the improvements, which injunction the district court denied. From that order this appeal is taken.

The invalidity of the proceedings of the city council is urged as the principal ground of reversal. The mayor did not approve the resolution of intention until January 19th, 17 days after its publication. This omission appellants contend is jurisdictional, rendering the proceedings insufficient to set the executive machinery of the city in motion, and an infirmity invalidating all the subsequent proceedings creating the improvement district and the making of a contract for the doing of the work. If this point is well taken, the order denying the injunction must be annulled.

A resolution of intention, in due form and properly adopted, is the fundamental basis upon which all further proceedings must stand. It is the essential thing which clothes the city authorities with jurisdiction to proceed with the proposed improvements. The very meaning of the word "jurisdiction" is power to hear and determine; and if no resolution of intention was passed, substantially as the statute requires, no power existed in the municipal authorities to let the contract or take any of the various steps necessary to create a valid improvement district. This court had occasion to deal with this important question in the case of Shapard v. City of Missoula, 49 Mont 269, 141 P. 544. There the Chief Justice, in a learned and exhaustive opinion, analyzes the statute and lays down fundamental principles vitally affecting the question here presented. In that case no resolution of intention at all was passed by the mayor and city council. The proceedings necessary to create the district were enacted, but the antecedent requisite--the passage and approval of the resolution of intention--was ignored altogether. It was held that the mode of exercising the power granted to a municipal corporation pointed out by the statute must be pursued in all substantial particulars before a municipal corporation can exercise the powers the statute in express words grants. Concerning the particularity with which the mandates of the statute are to be followed, the reasoning of the Chief Justice is so pertinent to the present inquiry that we adopt the following from that opinion:

"The statute having defined the measure of the power granted, and also the mode by which it is to be exercised, the validity of the action of the legislative body of the municipality must be determined by an answer to the inquiry whether it has departed substantially from the mode prescribed. Particularly is this true when it is engaged in making street improvements, the expense of which is to be a charge by assessment upon the property included in a special improvement district. The power to proceed at all is a restricted and qualified power, and may be exercised only upon the terms granted. The law on the subject is well settled, so well, indeed, that no municipal officer should be ignorant of it, or fail to understand that a special improvement district cannot be created without observance of every requirement of the statute on the subject. The resolution of intention is the primary step to be taken in every instance. It is the basis of the whole proceeding. It, with a notice of its adoption, is a condition precedent; nothing may be substituted in its place, and, though the proceedings may in all other respects conform to the requirements of the statute, the omission of it is fatal and renders all the subsequent proceedings nugatory. Page & Jones on Taxation, §§ 777, 830; McQuillin on Municipal Corporations, §§ 1848, 1849; 28 Cyc. 978; San Jose Imp. Co. v. Auzerais, 106 Cal. 498, 39 P. 859; Sadler v. City of Helena, 46 Mont. 128, 127 P. 454. To hold that a resolution creating a district in limine, though notice of it is given, is a compliance with the statute, would be equivalent to a holding that the Legislature did not mean what it said, and intended the

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