In re Improvement Under Special Assessment Statutes By Sanitary Sewer, 2186

• Decision Date: 11 June 1941
• Docket Number: 2186
• Citation: 113 P.2d 958,57 Wyo. 121
• Parties: IN RE IMPROVEMENT UNDER SPECIAL ASSESSMENT STATUTES BY SANITARY SEWER, CITY OF CHEYENNE; SCHOOL DIST. NO. 1, IN LARAMIE COUNTY, v. CITY OF CHEYENNE
• Court: Wyoming Supreme Court

113 P.2d 958

57 Wyo. 121

IN RE IMPROVEMENT UNDER SPECIAL ASSESSMENT STATUTES BY SANITARY SEWER, CITY OF CHEYENNE;

SCHOOL DIST. NO. 1, IN LARAMIE COUNTY, v. CITY OF CHEYENNE

No. 2186

Supreme Court of Wyoming

June 11, 1941

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Proceeding in the matter of the improvement under special assessment statutes by sanitary sewer, affecting Blocks 249, 347, 373 374, 375, 507, 744, 745, in the City of Cheyenne, State of Wyoming, and Block 4, Hellman Heights Addition, and Block 23 Park Addition in the City, wherein School District No. 1, in the County of Laramie and State of Wyoming, denied liability for payment of its proportionate share of the special assessment. From an adverse judgment, the School District appeals.

Affirmed.

For the appellant, there was a brief by William O. Wilson and James O. Wilson of Cheyenne, and oral argument by William O Wilson.

Appellant is resisting an assessment made upon its property by respondent for the cost of certain sewerage construction. Primary questions presented by this appeal are: (1) Is the School District liable if not benefited? (2) Is it lawful to impose the assessment, even if the District is benefited? (3) Is the District authorized to pay the assessment from school district funds? (4) Is the District liable for this assessment, in view of the fact that it already had a sewer sufficient for its purpose before the present system was constructed? There is an apparent conflict in the authorities as to the liability of school districts for public improvements and the purpose of this appeal is to have the question definitely settled in this state. The assessment was levied in proceedings under the Act of 1903 as amended in 1917, now Section 22-146, R. S. Another law, Sections 22-1501-1578, R. S., providing for sewer construction and assessments was enacted in 1915, which repealed all acts in conflict therewith. A question arises as to whether the act of 1903 existed at the time of the enactment of the law in 1915. If not, there was nothing to amend in 1917. This court held in Henning v. City of Casper, 50 Wyo. 1 that the two acts supplement each other. A question therefore arises as to whether the city may proceed under the Act of 1903 as amended in 1917 and thus ignore the provisions of the Act of 1915, which applies to special charter cities as well as those under general law. We do not believe that Chapter 56, Laws 1917 is sufficient in itself. The point was not presented in the Henning case and remains an open question. Bales v. Brome, 53 Wyo. 370; Webster v. Fall, 266 U.S. 507. Appeals are favored by the courts. State v. Wurdeman (Mo.) 227 S.W. 64. Liens cannot be imposed on school property unless authorized by statute. Peters v. Killibrew, 24 Wyo. 53. Municipal corporations possess no inherent power to levy assessments for local improvements. Bass v. Casper, 28 Wyo. 387. The case of McGarvey v. Swan, 17 Wyo. 120 is not applicable here as benefits were shown there and only private property was involved. Under the Act of Admission and provisions of the Constitution, school funds can be used only for the support of public schools. (Act of Admission, Secs. 4, 5; Constitution Article VII, Sec. 1.) Property sufficiently drained by existing sewers cannot be assessed for the cost of a new sewer, where no benefit is derived. Philadelphia v. Verner, 8 Pa. Co. Ct. 97; Michener v. Philadelphia, 118 Pa. St. 535; Cincinnati v. Doerger (Ohio) 120 N.E. 304; Rogers v. Salem (Ore.) 122 P. 308, 316; Sheedy v. Chicago (Ill.) 77 N.E. 539. Contra, Appeal of North Yakima (Wash.) 151 P. 795. The word "support" as used in the Constitution was discussed and defined in State v. Commissioners, 8 Wyo. 104; Roach v. Gooding (Ida.) 81 P. 642; State v. Maynard (Wash.) 71 P. 775; Mitchell v. Colgan, 54 P. 905. School districts have such powers as are expressly conferred by law. School Dist. v. Western Tube Co., 5 Wyo. 185; Powder River Cattle Co. v. Board, 3 Wyo. 598; Dillon Municipal Corporations pp. 30-33. A school district is a subdivision of a county. West v. School District, 37 Wyo. 36. Property used for school purposes is exempt from assessment unless authorized by statute. McQuillin Corporations, Sec. 2217, Note 82 and cases cited. Assessments against unused school property have been upheld. School District v. Board (Ark.) 46 S.W. 418 and cases cited. The rule is applied generally to public property held in a proprietary capacity. Conley v. Hawley (Cal.) 38 P.2d 408; Reynard v. City of Caldwell (Idaho) 21 P.2d 527 and cases cited. California holds that land used for school purposes is not liable for special sidewalk assessments. Witter v. Mission School District (Calif.) 53 P. 905; Sutton v. City of Montpelier (Ind.) 62 N.E. 710. School funds cannot be used for street improvements under the Kentucky constitution. City of Louisville v. Leatherman (Ky.) 35 S.W. 625. Where the collection of the assessment is restricted to a sale of school land, the district is not liable. County v. Board of Education (Minn.) 158 N.W. 635 and cases cited. Property of public schools is not subject to special assessments unless authority affirmatively appears in the constitution and laws. Trustees v. Trenton, 30 N. J. Equity 667; Thogmartin v. School District (Mo.) 176 S.W. 473. Court House property cannot be sold on execution to satisfy state assessments. City of Clinton v. County (Mo.) 22 S.W. 494. Nor can property of the school district be sold. City of Edina v. School District (Mo.) 267 S.W. 112; Henry County case (Mo.) 22 S.W. 494. Assessments for sprinkling streets cannot be collected from school funds. City of Butte v. School District (Mont.) 74 P. 869. The case of City v. District (Mont.) supra observed that school property is not enhanced in value as is private property by improvements. Enforcement of a special assessment against school district property was denied in Toledo v. Board (Ohio) 26 N.E. 403. A sewer assessment was held unenforceable against court house property in Massachusetts. Worcester County v. Mayor, 116 Mass. 193. Many of the cases cited by McQuillin in support of text holding that property of schools and colleges is not exempt from special assessment will be found to be based on special statutes, not involving common school districts. 28 Cyc. 1132 and cases cited. The case of City Schools v. Chicago (Ill.) 69 N.E. 580, sustaining an assessment for state improvements is based on constitutional provisions different from those of Wyoming. A general discussion of the subject appears in the case of Fuller, Auditor General of Michigan (Mich.) 197 N.W. 552. An assessment for the widening of a street was upheld in Boston Asylum and School v. Charles (Mass.) 62 N.E. 961, also in the case of Jackson v. Board (Ohio) 154 N.E. 247. In the case of City of Wichita v. Board of Education (Kan.) 142 P. 946, it was held that school property could not be sold to satisfy a street assessment but that the assessment could be paid from general taxes. Sewer assessments were upheld in Dinn v. School District, 202 N.Y.S. 62, where the assessment was shown to be beneficial to the property, also in City of Kalispell v. School District (Mont.) 122 P. 742. School District v. City of Helena (Mont.) 287 P. 165. In Brenton v. Des Moines, 257 N.W. 794, it was held that property not benefited by a new sewer system was not liable for assessments made for its cost. It has been held in the states of Ohio, Illinois and Michigan that property cannot be assessed in excess of benefits. Harper v. Cleveland, 164 N.E. 369; Towers v. Tacoma (Wash.) 276 P. 888; District v. Hartford (Conn.) 190 A. 264. In McChesney v. Chicago (Ill.) 73 N.E. 368, it was held that assessment for public improvements can be sustained only on the ground that the benefits are local and essentially peculiar to the property assessed, and then it can only be done once. Wewell v. Cincinnati (Ohio) 15 N.E. 196; Cincinnati v. Polster (Ohio) 117 N.E. 155. For the foregoing reasons appellant asks this court to uphold its appeal herein.

For the respondent, there was a brief and oral argument by Carleton A. Lathrop of Cheyenne.

The evidence showed that when the Alta Vista School building was constructed upon a portion of the east half of Block 373 there were no lateral sanitary sewer lines in that vicinity. In order to accommodate the school district, it was allowed to make a sewer connection with the main trunk lines through a manhole, said trunk line being located on the east side of said block. Trunk sewer lines are ordinarily used only for feeders--they are laid deep and have no Ys on them for connections. Sewer connections for permanent and practical purposes are made into laterals, which empty into the trunk lines. The temporary trunk line connection made by the District through Block 373 was made by the City at no expense to the School District. In 1939 the system of lateral sanitary sewer lines was laid, covering this part of the city, and the usual procedure was followed in accordance with law and the enactment of city ordinances. No objection was made by the school district that the assessment for sewer improvement was erroneously figured, but it is contended that it cannot be assessed at all for such special improvement and various objections are made to the procedure followed by the City. Section 22-146 prescribes the procedure by which cities may provide sewer facilities for their inhabitants. This law was enacted in 1917. Counsel for the district contend that the City should have followed the procedure outlined in Section 22-1500, R. S. 1931, a law enacted in 1915. In the case of Henning v. Loan Company, 50 Wyo. 315, this court held that the act of 1917 (Sec. 22-146, R. S. 1931) was an additional method provided for the...