Jones v. City of Hankinson

• Decision Date: 30 December 1921
• Citation: 186 N.W. 276,48 N.D. 618
• Court: North Dakota Supreme Court

186 N.W. 276

48 N.D. 618

JOHN R. JONES et al., Appellants, v. THE CITY OF HANKINSON, in Richland County, North Dakota, a municipal corporation, et al., Respondents

Supreme Court of North Dakota

December 30, 1921

From a judgment of the District Court of Richland County, Cooley Special J., plaintiffs appeal.

Affirmed.

J. A Dwyer, and W. S. Lauder, for appellants.

It is well settled that when a municipal corporation seeks to impose upon the citizens the burden of making public improvements and to hold the property of the citizens liable therefor the statutes authorizing such improvements must be strictly construed. Mason v. City of Sioux Falls S.D. 51 N.W. 770; McLaren v. City of Grand Forks N.D. 6 Dak. 397, 43 N.W. 710; Watkins v. Griffith, 59 Ark. 344, 27 S.W. 234; White v. Stevens, Mich., 34 N.W. 255; Pound v. Chippewa Co., Wis. 43 N.W. 63; Merritt v. Village of Portchester, 71 N.Y. 309; Hewes v. Reis, 40 Cal. 255; Desty on Taxation, 1241; Dill on Municipal Corporations, 759; Western Town Lot Co. v. City of Salem, S.D. 172 N.W. 503.

Newton, Dullam & Young, and Lawrence, Murphy & Nilles, for respondents.

"A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory, unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of them must be considered as a limitation of the power of the officer." Lewis Sutherland Statutory Construction, Vol. 2, §§ 611 and 213, second ed.

"Statutory prescriptions in regard to the time, form and mode of proceeding by public functionaries are generally directory as they are not of the essence of the thing to be done but are given simply to secure system, uniformity and dispatch in the conduct of the public business." Emmons County v. Lands of First National Bank, 9 N.D. 589, 84 N.W. 379; Johnson v. Day, 2 N.D. 295, 50 N.W. 703; Cooley Constitutional Limitations 77.

It is well settled that the determination of the council upon the question of necessity is final and conclusive in the absence of fraud. State v. Fisk, 15 N.D. 219-226; 107 N.W. 191.

The court in the same opinion holds that the board acts judicially in assessing benefits and necessarily it would act thus in other special assessment proceedings. Erickson v. Cass County, 11 N.D. 494, 507; 92 N.W. 841; Alstad v. Sim, 15 N.D. 529, 109 N.W. 66; Ellison v. LaMoure, 30 N.D. 43, 151 N.W. 988; Bergen Township v. Nelson County, 33 N.D. 247, 156 N.W. 559.

"Council are the sole judges of the necessity of sewers and their judgment is conclusive. If in every instance of special taxation the question of benefits could be thrown into the jury box, this situation would be intollerable." Diamond v. Mankato, 61 L.R.A. 488; Speer v. Athens, 9 L.R.A. 402-405.

There being no question of fraud the action of the city council can not be reviewed. State v. Fisk, supra; Page & Jones, Special Assessments, § 1430; Flickinger v. Fay, 119 Cal. 590.

CHRISTIANSON, J. BRONSON and BIRDZELL, JJ., concur, GRACE, C. J., concurs in the result. ROBINSON, J., dissents.

OPINION

CHRISTIANSON, J.

This is an action brought by certain taxpayers of the city of Hankinson to enjoin the officers of that city from proceeding further with the construction of certain waterworks and sewer systems in that city. The trial court made findings and conclusions, and directed judgment to be entered in favor of the defendants. The plaintiffs have appealed from the judgment, and demanded a trial de novo in this court.

The evidence shows, and the trial court found, that the city council of the city of Hankinson, by ordinance duly enacted, created and established certain waterworks, water main, and sewer districts within the corporate limits of said city; also that the city council directed the city engineer to prepare plans, specifications, and estimates of the probable cost of such waterworks, water main, and sewer systems; and that at a meeting held on the 21st day of July, 1920, the city council duly approved the plans, specifications, and estimates for such improvements which had theretofore been prepared by the city engineer; and that thereupon, on the same day, the said city council, by resolutions duly adopted, declared that a necessity existed for the construction of such waterworks, water main, and sewer systems, which said resolutions referred intelligently to the plans, specifications, and estimates therefor, and which said resolutions were thereupon published twice, once each week for two consecutive weeks in the official newspaper of said city, namely, on the 22d and 29th days of July, 1920. On the 4th day of August, 1920, a protest against the construction of said waterworks and sewer systems was filed. Such protest was signed in all by some 176 persons, and read, in part:

"We, the undersigned citizens of the state of North Dakota, who own lots and parcels of land which may be or will be assessed for such heretofore mentioned and proposed improvements, so called, do hereby give notice to the city council of the city of Hankinson, N.D., that we do protest against any further action whatever at the present time towards building waterworks system, water mains, or sewers as proposed by such council in said published notice, and that the said city council do therefore discontinue any further action as proposed; that this protest is filed as permitted by the laws and statutes of the state of North Dakota, because we do not want the same established at this time because of the present high price of materials, labor, etc.; and, further, that the proposed costs, as a whole, as now proposed, will be too high."

Thereafter, on the 10th day of August, 1920, at a meeting of the city council, at which all members were present, the following proceedings were had:

"Auditor read a protest presented by property owners protesting against the creation of and building of sewers, water mains pumping stations, or anything and everything connected therewith, in the city of Hankinson, Richland county, N.D.

"Motion made by Alderman Peitz and seconded by Alderman Hoffman that protests be approved as read. Roll call on the motion resulted as follows: First ward, Brown voting No; Burfening voting No. Second ward, Solsrud voting No; Schuett voting No. Third ward, Peitz voting Yes; Hoffman voting Yes. Motion declared not carried.

"Alderman Burfening introduced the following resolution and moved its adoption; Alderman Schuett seconded the motion:

"Whereas, petitions supposedly under and in accordance with § 3704 of the Compiled Laws of North Dakota 1913, having on the 4th day of August, 1920, been filed with the city auditor, protesting against the construction of a waterworks and sewer system, and whereas, many of the lots represented by the signature to such protests are subject only to indirect or secondary assessments, and such signatures do not represent the majority of the property liable to be directly assessed, and whereas, independent protests were not filed against the waterworks and against the sewer systems, though many of the signers are known to be favorable to one system while opposed to the other, and the petitions do not therefore represent the true wishes of all the signers, and whereas, it is the opinion of the council that the construction of a waterworks and sewer system is necessary for the convenience, health, fire protection, and general welfare of the citizens of Hankinson and their property:

"Now, therefore, be it resolved by the city council of the city of Hankinson, N.D., that the city council having heard and fully considered said protests, do find and determine at this, the first regular meeting after the time set for filing protests against such improvements, that the protests are insufficient and not well taken, and that the petitions be denied.

"Roll call on the resolution resulted as follows: First ward, Brown voting Yes;...