Hodges v. City of Roswell

• Decision Date: 10 May 1926
• Docket Number: No. 2908.,2908.
• Parties: HODGES et al.v.CITY OF ROSWELL et al.
• Court: New Mexico Supreme Court

31 N.M. 384

247 P. 310

HODGES et al.

v.CITY OF ROSWELL et al.

No. 2908.

Supreme Court of New Mexico.

May 10, 1926.

Syllabus by the Court.

Section 3665 et seq. of the 1915 Code, as amended by chapter 152, Laws of 1919, known as the “provisional order” paving law of the state, are not unconstitutional as being violative of the due process provision of the federal and state Constitutions.

The question of whether the statute is unconstitutional because it provides for personal liability of the property owners for the costs of the improvement assessed against their property is not material, where there is no showing that the city is attempting to fix such personal liability.

The duty of the city council to determine “the kind and character of such improvements so to be made” is satisfied by a determination that the streets were to be “paved with a permanent pavement,” further reciting in the alternative several kinds of permanent pavement, such determination being followed by proceedings resulting in fair, competitive bidding by the contractors.

The contract for repairs in this case amounts to nothing more than an agreement to make the work what it should have been in the first instance, and is not, therefore, unauthorized.

An agreement by the city to collect the paving assessments and apply the proceeds thereof to the payment of paving bonds issued by it is not objectionable, and is authorized by chapter 133, Laws 1923, which ratified and confirmed such bonds theretofore issued.

Appeal from District Court, Chavez County; Brice, Judge.

Suit by M. W. Hodges and others, taxpayers and property owners, against the City of Roswell and others for an injunction. From a decree dismissing plaintiffs' bill, they appeal. Affirmed.

An agreement by the city to collect the paving assessments and apply the proceeds thereof to the payment of paving bonds issued by it is not objectionable, and is authorized by chapter 133, Laws 1923, which ratified and confirmed such bonds theretofore issued.

R. D. Bowers, of Hagerstown, Md., for appellants.

H. M. Dow and Tomlinson Fort, both of Roswell, and Downer & Keleher, of Albuquerque, for appellees.

BICKLEY, J.

Representing themselves and other property owners and taxpayers in the city of Roswell, the appellants filed suit attacking the validity of certain proceedings had and taken by the city counsel with reference to the improvements of certain streets of said city. The plaintiffs asked for an injunction restraining the city from entering into a contract or proceeding further in any manner with the proposed improvement project, and asked that the city be permanently restrained from making any assessment against property to be affected by the proposed improvement, against issuing certificates to the contractor for the doing of the work or the issuance of any bonds in lieu of such certificates. The complaint alleges that the city of Roswell adopted a provisional order on May 9, 1922, for the improvement of certain streets; that the city engineer had filed an estimate of the total cost of the proposed improvements which estimate, together with plans and specifications for the work, were adopted by the city council on June 2, 1922; that on the same day (June 2, 1922) the city council ordered a hearing for property owners to be held on July 3, 1922; that on said July 3, 1922, the council adopted a resolution ordering the improvement to be made in accordance with the plans, specifications, and estimate of the city engineer; that the engineer was directed to advertise for bids for furnishing materials and doing the work. It was further alleged that the city of Roswell had violated some of the provisions of section 3665 et seq. of the 1915 Code, as amended; that the paving procedure adopted pursuant to the statute violated the Fourteenth Amendment of the federal Constitution; that the assessments against the abutting property for cost of the improvement were attempted to be authorized without reference to the benefits which would accrue to the property abutting on the streets; that the owners of abutting property had not been accorded a hearing as to either benefits or damages; that the city of Roswell had agreed to pay for the work and materials in certificates for and in exchange of which certificates the city proposed to issue bonds; that the issuance of such bonds will be ultra vires, because issued without authority, and in violation of section 12 of article 9 of the New Mexico Constitution. A demurrer to the complaint was filed by the defendant, and was overruled by the court. Thereafter the city of Roswell filed an answer to the rule to show cause why an injunction should not be issued, and thereafter the cause came on for hearing. The trial court made findings of fact and conclusions of law, and filed in the cause a memorandum opinion, and entered a decree in favor of the respondent, and dismissed plaintiff's bill. The case is now here on appeal.

[1] The first proposition advanced by appellants is that section 3665 et seq. of the 1915 Code, as amended, known as the “provisional order” paving law of the state, are unconstitutional, for the reason that they violate the “due process” provision of the federal and state Constitutions.

It is claimed by appellants that the absence from the statute of a rule of apportionment of the costs of the improvement against the various lots and parcels of land to be affected, and the absence of a provision for a hearing upon the benefits to the property to be assessed for the cost of such improvement, render the statute unconstitutional as aforesaid.

Appellants say that the basic idea in all public improvement special assessments is that the cost of such improvements shall be commensurate with the benefits to the property; that, if the statute fixes the standard to be used in apportioning the cost of the improvement, that is a conclusive determination of benefits to the property. Appellants do not assail the frontage or front-foot rule as a valid method of making the apportionment, providing it is authorized by the Legislature. The “provisional order” method of making street improvements in municipalities is manifested in sections 3665 to 3671, inclusive, of the 1915 Code, as amended by Laws of 1919, c. 152.

These statutes were before this court for consideration in Ellis v. New Mexico Construction Co., 27 N. M. 312, 201 P. 491. The statute was upheld in several particulars, and as to the point here involved we said:

“The next specific attack made by appellants in their complaint against the procedure followed by appellees is that the assessments made against them were in excess of benefits. Section 3, chapter 152, Laws 1919, amending the 1903 paving law (section 5, chapter 42), carried forward into the Code as section 3669, permits the assessment to be made upon the front-foot rule, and it is such method of assessment that appellants complain of, as stated above. The method followed by the city conforms to the statute, and is therefore valid. That it is a constitutional method of assessment this court has already decided. Roswell v. Bateman, 20 N. M. 77, 146 P. 950, L. R. A. 1917D, 365, Ann. Cas. 1918D, 426.”

Appellants say that the statement quoted was ill advised because the language of section 3, chapter 152, Laws of 1919, providing for assessment “upon all the frontage of the street to be improved,” applies only to intersections. That the Legislature construed the act in the same manner as did the court is indicated by section 1 of chapter 85, Laws of 1921, which provides:

“Section 1. That when, in the opinion of the governing body of any city, town or village, whether incorporated under general or special act, it shall be deemed advisable to construct any sidewalks, paving, grading, sewer, gutter or other improvements in, upon, adjoining, under or above any street, alley or other public way, abutting on land owned by such municipalities, the governing bodies thereof may provide for the whole or any part of the cost of such improvements chargeable against the front footage of municipally owned lands under existing laws by causing to be levied upon all of the taxable property within such municipalities, a special tax which shall not exceed one mill on the dollar for any one year, the proceeds of such tax to go into a special fund to be applicable only to the payment of such cost of sidewalks, paving, grading, sewer, gutter or other improvements above provided for.”

No limitation as to the costs of intersections is here made. In addition to this, subsection 80 of section 3564 of the Code, which section defines the general powers of municipalities, provides:

“Eightieth. That municipal corporations may assess for street improvements, such as paving, grading, curbing and other work done and material furnished therefor between sidewalks and opposite sides of said streets, the whole or a portion of the costs of such improvements, upon the lots and land adjoining said streets and especially benefited thereby, according to the frontage of said lots and land, whether said frontage be as to width or depth of said lots and land.”

The fact that section 3 of chapter 152 of the Laws of 1919 specifically provided a different method for dealing with lots and parcels of irregular shape or of less than the regular length indicates that the apportionment was to be made by a uniform standard as to lots and parcels of land having regular shapes and sizes.

As we understand the argument of appellants, their proposition cannot be sustained, unless we overrule our former decision in Ellis v. New Mexico Construction Co., supra. This we are not disposed to do. Much argument might be made to support that decision, but we think this unnecessary. It has stood for more than five years as a controlling decision affecting procedure of vast public importance, and the attack made upon it is not convincing.

The courts will lean against an interpretation...