Hughes v. Village of Wendell

• Citation: 275 P. 1116,47 Idaho 370
• Decision Date: 21 March 1929
• Docket Number: 5073,5072
• Parties: E. B. HUGHES, Respondent, v. VILLAGE OF WENDELL, a Municipal Corporation, et al., Appellants. BOISE PAYETTE LUMBER COMPANY, a Corporation, Respondent, v. VILLAGE OF WENDELL, a Municipal Corporation, et al., Appellants
• Court: United States State Supreme Court of Idaho

275 P. 1116

47 Idaho 370

E. B. HUGHES, Respondent, v. VILLAGE OF WENDELL, a Municipal Corporation, et al., Appellants.

BOISE PAYETTE LUMBER COMPANY, a Corporation, Respondent, v. VILLAGE OF WENDELL, a Municipal Corporation, et al., Appellants

Nos. 5072, 5073

Supreme Court of Idaho

March 21, 1929

BOISE PAYETTE LUMBER COMPANY, a Corporation, Respondent, v. VILLAGE OF WENDELL, a Municipal Corporation, et al., Appellants.

MUNICIPAL CORPORATIONS - LIABILITY ON SPECIAL ASSESSMENT WARRANTS.

Special assessment warrants issued under C. S., secs. 3999-4013, are not general obligations of municipality, rule being same as though bonds had been issued under secs. 4014-4028, and therefore municipality was not liable, where no negligence was pleaded or proven except in that properties liable for assessment were not in all instances valuable enough to meet proportionate share of liability.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action to enforce payment of special assessment warrants. Judgment for plaintiffs. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellants.

Bissell & Bird, for Appellants.

Municipal warrants which specifically provide that they are payable from street improvement district No. 2 fund cannot be paid from the general or warrant redemption funds of the municipality. (C. S., secs. 4047 and 4049; Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034.)

Under the statutes and laws of Idaho the warrants sued upon are not payable from the general fund or the warrant redemption fund of the appellant municipality. (C. S., secs. 4005, 4007, 4013, 4019, 4026, 4053 and 4058; Const., sec. 3, art. 8; New First Nat. Bank v. City of Weiser, 30 Idaho 15 166 P. 213; Const., sec. 3, art. 8; Byrns v. City of Moscow supra; Feil v. City of Coeur d'Alene, 23 Idaho 32, 129 P. 643, 43 L. R. A., N. S., 1095; Boise Devel Co. v. City of Boise, 26 Idaho 347, 143 P. 531; Moore v. City of Nampa, 18 F.2d 860.)

Bothwell & Chapman, for Respondents.

The board of trustees of the Village of Wendell was authorized to contract for the making of the improvements herein, and to contract for the payment of such improvements out of the general funds of the municipality or by special assessments upon land fronting, contiguous or tributary to the streets on which such improvements were to be made. (C. S., secs. 3492, 3944; Byrns v. City of Moscow, supra; Argenti v. City of San Francisco, 16 Cal. 255; Soule v. City of Seattle, 6 Wash. 315, 33 P. 384, 1080; Stephens v. City of Spokane, 11 Wash. 41, 39 P. 266; Clark v. City of Des Moines, 19 Iowa 199, 87 Am. Dec. 423.)

The statutes of Idaho provide two methods whereby a municipality may provide for the payment of improvement work done on its streets. (C. S., secs. 3999-4026, incl.)

Where a municipality has agreed to pay for improvement work done out of a fund realized by special assessment, and then by the negligence of the municipality the fund has not been realized after the municipality has repealed the benefits of its contract and obtained the improvement contracted for, the municipality is generally liable. (District of Columbia v. Lyon, 161 U.S. 200, 16 S.Ct. 450, 40 L.Ed. 670; Ft. Dodge Elec. L. & P. Co. v. City of Ft. Dodge, 115 Iowa 568, 89 N.W. 7; Barber Asphalt Pav. Co. v. City of Denver, 72 F. 336, 19 C. C. A. 139; Commercial Nat. Bank v. City of Portland, 24 Ore. 188, 41 Am. St. 854, 33 P. 532; Barber Asphalt Pav. Co. v. Harrisburg, 64 F. 283, 12 C. C. A. 100, 29 L. R. A. 401.)

Constitutional debt limitations do not apply to indebtedness arising out of tort or an obligation imposed by law. (Independent School Dist. v. Manning, 32 Idaho 512, 185 P. 723; Fort Dodge Elec. Co. v. City of Fort Dodge, supra.)

GIVENS, J. Budge, C. J., Wm. E. Lee, J., and Baker and Adair, D. JJ., concur.

OPINION

GIVENS, J.

Respondents are the holders of warrants issued by appellants in payment of the construction of certain special assessment improvements consisting of sidewalks, curbs, etc., which warrants have not been paid because of the insufficiency of the special assessment fund. Bonds were not issued as provided in C. S., secs. 4014-4028, but warrants were under the provisions of C. S., secs. 3999-4013.

A majority of the lot owners have paid their assessment in full. Some have not paid anything. The lots owned by such delinquents are not of sufficient value, if sold under foreclosure of the lien of the warrants, to bring enough to take care of the deficit and appellants have sued the city claiming it is thereby directly liable.

If the obligation was in the first instance the city's it resulted in an excessive debt in violation of sec. 3 of [47 Idaho 373] art. 8 of the constitution. Respondents avoid this result by urging that the city was in the first instance not liable (McGilvery v. City of Lewiston, 13 Idaho 338, 90 P. 348; Byrns v. Moscow, 21 Idaho 398, 121 P. 1034), but became so because of its negligence; hence the present liability sounds rather in tort than a direct action on the warrants. (City of Mankato v. Barber Asphalt Paving Co., 142 F. 329; Little v. City of Portland, 26 Ore. 235, 37 P. 911; Morris v. City of Sheridan, 86 Ore. 224, 167 P. 593.) The negligence complained of is evidently that the properties, liable for the assessment, were not in all instances valuable enough to meet the proportionate share of liability. No neglect in making the estimate or contracts, or in levying or collecting the assessments is charged or proven.

Respondents cite, among others, the following authorities in support of their contention: District of Columbia v. Lyon, 161 U.S. 200, 16 S.Ct. 450, 40 L.Ed. 670; City of Mankato v. Barber Asphalt Paving Co., supra; Barber Asphalt Co. v. Denver, 72 F. 336, 19 C. C. A. 139; Barber Asphalt Co. v. Harrisburg, 64 F. 283; Chicago v. People, 56 Ill. 327; Fort Dodge Elec. L. & P. Co. v. Fort Dodge, 115 Iowa 568, 89 N.W. 7; Reilly v. Albany, 112 N.Y. 30, 19 N.E. 508; Commercial Nat. Bank v. City of Portland, 24 Ore. 188, 41 Am. St. 854, 33 P. 532.

All of the above cases are readily distinguishable from the case at bar, the same point being substantially raised in all because in the above cases there was either no law permitting the special...