Kvello v. City of Lisbon

• Decision Date: 24 September 1917
• Citation: 164 N.W. 305,38 N.D. 71
• Court: North Dakota Supreme Court

164 N.W. 305

38 N.D. 71

ALFRED M. KVELLO et al. v. CITY OF LISBON et al

Supreme Court of North Dakota

September 24, 1917

Action to set aside a special assessment.

Appeal from the District Court of Ransom County, Honorable Frank P Allen, Judge.

Judgment for defendants. Plaintiffs appeal.

Reversed.

Reversed and remanded, with directions.

Rourke Kvello, and Adams, for appellants.

The proceedings of the city council were invalid, and the council lacked jurisdiction because it never, prior thereto, had created a "waterworks district" as by law required or in any other manner. Price v. Fargo, 24 N.D. 440 139 N.W. 1054; Rev. Codes 1905, § 2772, Comp. Laws 1913, §§ 3698, 3701-3703, etc.; Laws 1913, chap. 74.

It is the law that statutory requirements relating to special assessments should be strictly construed to the end that inequalities and confiscations should be reduced to the minimum. McLauren v. Grand Forks, 6 Dak. 397, 43 N.W. 710; Robertson Lumber Co. v. Grand Forks, 27 N.D. 556, 147 N.W. 249; Whittaker v. Deadwood, 23 S.D. 538, 139 Am. St. Rep. 1076, 122 N.W. 590; Haggart v. Alton, 29 S.D. 509, 137 N.W. 372; Shapard v. Missoula, 49 Mont. 269, 141 P. 544; Morse v. Omaha, 67 Neb. 426, 93 N.W. 737.

Whatever may be the basis of apportionment for a special assessment a taxing district must necessarily be established. Hoyt v. East Saginaw, 19 Mich. 39, 2 Am. Rep. 76; Whitney v. Hudson, 69 Mich. 189, 37 N.W. 184; Shapard v. Missoula, 49 Mont. 269, 141 P. 544.

It is the law that statutes authorizing the laying off or creation of improvement districts in municipalities are mandatory and jurisdictional. McCaffrey v. Omaha, 91 Neb. 184, 135 N.W. 552; Wiese v. South Omaha, 85 Neb. 844, 124 N.W. 470; Improvement Dist. v. Cotter, 71 Ark. 556, 76 S.W. 552; Asheville v. Wachovia Loan & T. Co., 143 N.C. 360, 55 S.E. 800.

The law gives no authority for the construction by special assessment of a standpipe, where a waterworks system already exists, and the council was without jurisdiction for such reason. Clay v. Grand Rapids, 60 Mich. 451, 27 N.W. 596; Comp. Laws 1913, § 3698, Laws 1913, chap. 74.

The proceedings were also invalid because the city engineer never prepared plans, specifications, and estimates for the work. Comp. Laws 1913, § 3703; Baker v. La Moure, 21 N.D. 140, 129 N.W. 464.

The proceedings were invalid, and the council had no jurisdiction, for the further reason that no resolution finding and declaring the work necessary to be done was ever passed or published by the council. Comp. Laws 1913, § 3704; McLauren v. Grand Forks, 6 Dak. 397, 43 N.W. 710; Stephan v. Daniels, 27 Ohio St. 527; Caldwell v. Carthage, 49 Ohio St. 334, 3 N.E. 602; Shapard v. Missoula, 49 Mont. 269, 141 P. 544; German Lutheran Church v. Mt. Clemens, 179 Mich. 35, 146 N.W. 287; Pacific Paving Co. v. Verso, 12 Cal.App. 362, 107 P. 590; Michigan C. R. Co. v. Huehn, 59 F. 335; Hoyt v. East Saginaw, 19 Mich. 39, 2 Am. Rep. 76.

No notice of the proposed improvement was ever given the taxpayers because the purported resolution of necessity did not "intelligently" refer to the plans, specifications, and estimates of the work to be done. Comp. Laws 1913, § 3704; Whittaker v. Deadwood, 23 S.D. 538, 139 Am. St. Rep. 1076, 122 N.W. 590; Code, § 1303; 28 Cyc. 981; Atlanta v. Gabbett, 93 Ga. 266, 20 S.E. 306; Holden v. Chicago, 172 Ill. 263, 50 N.E. 181; State ex rel. Bowen v. Sioux Falls, 25 S.D. 3, 124 N.W. 963.

The proceedings were invalid because neither the city engineer nor any other competent person employed by the city supervised or inspected the construction of the standpipe or certified that the work had been done and completed in accordance with the contract. Comp. Laws 1913, §§ 3703, 3709, 3725; Baker v. La Moure, supra.

The proceedings were void and the council had no jurisdiction because the assessment made by the special assessment commission was illegal and invalid in every respect. There was no personal inspection of the lots or property which might be subjected to the special assessment, and no determination as to benefits. Robertson v. Grand Forks, 27 N.D. 556, 147 N.W. 249; McKenzie v. Mandan, 27 N.D. 546, 147 N.W. 808.

Plaintiffs are neither estopped nor are they guilty of laches. It is wholly immaterial whether or not they entered protests or objections. If the council and assessment commission were without jurisdiction, then their acts are invalid and "protects" would not validate them. They were engaged in doing an act where their method of procedure was fully outlined to them, by statute, and they are not allowed to act or perform in any other manner. McKenzie v. Mandan, and Robertson Lumber Co. v. Grand Forks, supra; McLauren v. Grand Forks, 6 Dak. 397, 43 N.W. 710; Lyon v. Tonawanda, 98 F. 362; Morse v. Omaha, 67 Neb. 426, 93 N.W. 734; Steckert v. East Saginaw, 22 Mich. 110; Hamilton, Taxn. by Special Assessments, §§ 723, 738.

J. V. Backlund, City Attorney, P. H. Butler, and Chas. S. Ego, for respondents.

"No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied." Const. art. 2; Rolph v. Fargo, 7 N.D. 640, 42 L.R.A. 651, 76 N.W. 242.

The power to impose special assessments goes back to the year 1691 in America. Holley v. Orange County, 106 Cal. 420, 39 P. 790; "The Better Tax in America," by John Rae, Contemporary Review, May, 1890; Hamilton, Taxn. by Special Assessments, § 7; Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451.

The principles of taxation by special assessment are sustained by the great weight of authority. Special assessments are derived from an exercise of the taxing power of government, rather than from an exercise of the police power or right of eminent domain. Holley v. Orange County, 106 Cal. 420, 39 P. 790; Nichols v. Bridgeport, 23 Conn. 189, 60 Am. Dec. 636; McComb v. Bell, 2 Minn. 295, Gil. 256; Adams County v. Quincy, 130 Ill. 566, 6 L.R.A. 155, 22 N.E. 624; State, Sigler, Prosecutor, v. Fuller, 34 N.J.L. 227; Schenley v. Allegheny, 25 Pa. 128; Reelfoot v. Dawson, 97 Tenn. 151, 34 L.R.A. 725, 36 S.W. 1041; Norfolk v. Young, 97 Va. 728, 47 L.R.A. 574, 34 S.E. 886; Allen v. Drew, 44 Vt. 174; Hackworth v. Ottumwa, 114 Iowa 467, 87 N.W. 424; Weeks v. Milwaukee, 10 Wis. 243; Gould v. Baltimore, 59 Md. 378.

The only restrictions which are recognized are that such assessment must be for a public purpose, the property charged therewith must be specially benefited by the improvement, and the assessment must be apportioned according to the benefits, and must not be in excess thereof. State ex rel. Stateler v. Reis, 38 Minn. 371, 38 N.W. 97; Const. § 130; Code, subd. 5, § 3599.

These laws are liberally construed with reference to local improvements. Laws 1905, §§ 137, 154, chap. 62; Laws 1911, § 1, chap. 70; Laws 1913, chap. 74, § 1; Comp. Laws 1913, §§ 3698, 3714.

Such statutes should receive a construction which will, if possible, avoid an unjust or absurd conclusion. Lau Ow Bew v. United States, 144 U.S. 47, 36 L.Ed. 340, 12 S.Ct. 517; Church of the Holy Trinity v. United States, 143 U.S. 457, 36 L.Ed. 226, 12 S.Ct. 511; United States v. Kirby, 7 Wall. 482, 19 L.Ed. 278; People ex rel. Atty. Gen. v. Utica Ins. Co., 15 Johns. 358, 8 Am. Dec. 243; Gray v. Cumberland County, 83 Me. 429, 22 A. 376; Crocker v. Crane, 21 Wend. 211, 34 Am. Dec. 228; Kane v. Kansas City, Ft. S. & M. R. Co., 112 Mo. 34, 20 S.W. 532.

The city council was authorized to create a "waterworks district." This can be extended and made to cover and include a greater area than the water-main district. Laws 1913, chap. 74.

If the council made a mistake in such proceedings, that should not vitiate the assessment. Comp. Laws 1913, § 3714.

The city council had power to build a standpipe, even though a waterworks system already existed. Appellant's argument would result in the conclusion that such cities as have no waterworks system may establish one by special assessment; but cities that have part of such a system may not complete it and make it efficient through the same means. This is not the law. Comp. Laws 1913, § 3698; 36 Am. Dig. Century ed. title "Municipal Corporations," P 810; 28 Cyc. 1004, P (iii) "Declarations of Necessity and Utility;" Hughes v. Parker, 148 Ind. 692, 48 N.E. 243; Spaulding v. Baxter, 25 Ind.App. 485, 58 N.E. 551; Barber Asphalt Paving Co. v. Edgerton, 125 Ind. 455, 25 N.E. 436.

Our statute does not say or even contemplate that the procedure provided therein shall be strictly or technically followed. The statutes do provide that mistakes shall not vitiate the proceedings, but may be corrected. Shapard v. Missoula, 49 Mont. 269, 141 P. 544; Comp. Laws 1913, § 3704.

The statute does not require that the resolution of necessity shall do more than so declare, and give the location and a general description of the standpipe to be erected. It is not necessary to give the dimensions. Whittaker v. Deadwood, 23 S.D. 538, 139 Am. St. Rep. 1076, 122 N.W. 590; State ex rel. Bowen v. Sioux Falls, 25 S.D. 3, 124 N.W. 963.

The improvement as constructed was accepted and used and the contract under which it was built fully performed. Appellants knew the pipe was being erected; they knew it was for a public use; they knew it was to be paid for by special assessments, and yet they stood by and maintained a silent attitude until all these things had transpired, and made no objection. They are estopped now to complain. Tone v Columbus, 39 Ohio St. 281, 48 Am. Rep. 438; People v. Weber, 164 Ill. 412, 45 N.E. 723; Hawthorne v. East Portland, 13 Ore. 271, 10 P. 342; Chadwick v. Kelley, 187 U.S. 542, 47 L.Ed. 293, 23 S.Ct. 175; Blake v. People, 109 Ill. 504; Hall v. Slaybaugh, 69 Mich. 484, 37 N.W. 545; ...