Maguire v. Whillock, 6898.
| Decision Date | 27 March 1942 |
| Docket Number | 6898. |
| Citation | 63 Idaho 630,124 P.2d 248 |
| Parties | MAGUIRE v. WHILLOCK, Mayor, et al. |
| Court | Idaho Supreme Court |
Appeal from District Court, Third Judicial District; Ada County Charles F. Koelsch, Judge.
Mandamus proceeding by J. C. Maguire, trustee for Constance Smurthwaite Maguire, against Westerman Whillock, mayor of Boise City, A. A. Walker, Sam S. Griffin, M. S. Parker, and T. J. Jones, Jr., councilmen, and constituting the common council of Boise City, Idaho, to compel reassessment on special or local improvement district. From a judgment for plaintiff, the defendants appeal.
Judgment affirmed.
C Stanley Skiles, of Boise, for appellants.
Maurice H. Greene, of Boise, for respondent.
In the trial court respondent, trustee for the owner of all the remaining unpaid bonds of the special or local improvement district involved, successfully sued out a writ of mandamus to compel appellant to reassess, under the second paragraph of section 49-2726, I.C.A., [1] the property in the district to recoup, in the first cause of action, a claimed mistaken or inadvertent deficiency of $2,796.55 in the assessment, security for the payment of the principal of the district's bonds, and in the second cause $3,220.20 asserted rightful interest thereon.
Appellants unavailingly urged that mandamus was the wrong remedy; that there was no deficiency in fact or in law, and if there was, respondent was charged with knowledge and notice thereof barring his action for relief, and that both causes of the action are barred by the statute of limitations.
Respondent introduced all the city's records of the district, and the testimony of respondent as to the work performed, receipt of warrants therefor, and preliminary negotiations culminating in the exchange of warrants for bonds, and of an expert accountant analyzing the above records and financial transactions. Appellant introduced no evidence. The evidence is uncontradicted in that no witness disputed another. It is in minor particulars somewhat confusing, and different conclusions or inferences could in some instances be drawn. The learned trial judge ordered a reassessment against all property in the district except that upon which the full assessment had been paid prior to October 1, 1926. No assignment of error challenges this segregation. The trial court's meticulous, substantiated findings disclose the following desultory and checkered history of this district.
All preliminary proceedings for the organization of the district, initiated March 3, 1925, were correct, and the assessment roll of $25,347.78 was approved August 4, 1926, to cover construction cost, $22,001.68, engineering inspection and supervision, $2,172.18, advertising, clerk's costs, incidental engineering, printing, etc., $473.92, and $700 interest on interim warrants to October 1. The construction contract for $22,001.68 was let to J. C. Maguire Construction Co., June 23, 1926, and the project completed. By October of the same year, interim warrants had been issued in payment of charges against the district in the amount of $24,384.86. Pursuant to notice authorized by the council and given by the city clerk[2] certain property owners prior to October 1, 1926, paid $2,952.39, their assessments in full. The clerk (notwithstanding the specific provisions of the statutes covering local or special improvement districts, §§ 49-2715 and 49-2721, and correlated provisions, §§ 61-1002, 61-1017, 61-1901, the interpretation thereof, Veatch v. City of Moscow, 24 Idaho 461, at page 465, 134 P. 551, the express provisions of ordinance 1430 of May 26, 1925, establishing the district, [3] and the notice, supra, as ordered by the council and given by the clerk) between October 1, 1926, and November 30, 1928, when the bonds in question were finally issued and negotiated, accepted after October 1, 1926, from private property owners of the district $2,736.58, payments of their assessments without penalty or interest thereon. Whatever the penalties or interest properly were, there should have been at least a charge for interest equal to that payable upon the warrants, namely, 7%. The clerk likewise accepted from the city for its contributions for street intersections and charges against Julia Davis Park, municipally owned, amounting to $6,380.93. The amount of interest provided for in the original assessment of $700 was insufficient to pay the interest of 7%, amounting to $3,760.47, on the interim warrants since they were not all paid until November 30, 1928, instead of October 1, 1926, as originally contemplated and provided for. Thus no levy was made against the property owners who paid after October 1, 1926, the last day they were legally entitled to pay only their full assessment, i. e., without penalty or interest, nor were interest charges as such made against the other property owners to pay the interest on these interim warrants.
All of the above payments made by the city and property owners were applied on the payment of such warrants and interest thereon, leaving, November 30, 1928, when the bonds were disposed of, a warrant indebtedness of principal and interest amounting to $16,185.77. $13,278.88 was received from the sale of the bonds, to which amount the assessment roll on the face thereof had been reduced by debiting against it assessments paid June, 1928. $110.34, collected prior to May 1, 1928, was in the bond redemption fund. There was thus on the face of the roll only a legitimate total on November 30, 1928, of $13,389.22 with which to retire the warrant indebtedness of $16,185.77 as required by 49-2717. The clerk paid the warrant indebtedness by finagling $969.93 from the Treasurer's Investment Fund, which had no connection whatever with the district involved herein; accrued interest on the bonds of $308.14, which she considered had accumulated and which she required the purchaser to pay; and the collections from an installment assessment made by her June 1, 1928, of $1,518.48, and which was deducted from the assessment roll. This assessment should have been for the payment of bonds, but she paid warrants therewith. Thus the actual amount of the assessment roll standing as security for the payment of bonds November 30, 1928, was short $2,796.55, the basis of respondent's first cause of action.
" Oh, what a tangled web we weave When first we practise to deceive." -Scott.
Bonds to the amount of $13,278.88 were issued and sold November 30, 1928, to J. C. Maguire Co., really exchanged with the money above mentioned, for the amount of warrants outstanding. Later the company was dissolved and these bonds distributed to respondent's cestui que trust, his wife, for her stock in the company. Twenty-six bonds were for $500 each and the 27th for $278.88, all due on or before November 30, 1938. Bond No. 1 was paid August 30, 1930, bond No. 6 was paid July 7, 1936, and bonds Nos. 2 to 5 were paid September 15, 1936. All interest was paid in full on presentation of coupons until 1937.
The city clerk embezzled from the funds of this district $2,585.87, which was recovered in a separate action prior to the one herein by respondent against appellant, and thereby bonds 7 to 11 and $85.87 on bond 12 were paid January, 1939. There thus remain in respondent's possession 16 bonds, 14 bonds in the denomination of $500 and one bond in the denomination of $278.88, and $414.13 due on bond No. 12, or a total of $7,693.01. Thus the reassessment of $2,796.55 if paid in full, which it may not be and for which failure respondent will have no recourse, will leave $4,896.46 of the principal of the bonds unpaid.
In limine, appellant asserted at the oral argument that the deficiency in this assessment roll arose partially, if not entirely, because of the cancellation of $3,071.08 thereof, by sale for delinquent taxes to the county of a portion of the property in the district. This point as such is not in appellant's specifications of error, nor is the matter argued in its brief. The dates of these concellations or tax sales are not shown nor is there any analysis indicating such pyramiding of this amount as to wipe out the total difference between the amount actually paid on the bonded indebtedness to date of $5,585.87, and $13,278.88, or $7,693.01.
Appellant urges that respondent's cause of action, if any, accrued at the time the roll was first short, if at all, namely, November 30, 1928, and is barred by sections 5-216, 5-217, 5-218, 5-222, and 5-224, I.C.A.
The limited nature of special improvement district bonds is well known and needs no reiteration, merely mental retention as we proceed.[4]
The record shows and the court found that respondent had no actual notice of this deficiency and inadequacy of the assessment roll until March 4, 1937. Suit was commenced September 22, 1938. The shortest length of time in any of the statutes of limitations urged by appellant is that in § 5-218, or three years, because while § 5-222 [5] is interposed it would not seem applicable, and appellant has cited no authority to the effect that it is. Appellant, however contends the respondent had constructive notice because all of these proceedings were of public record in the office of the city clerk. Paragraph two of § 49-2726, supra, is the one under which relief is sought and claimed. If the respondent is charged with constructive notice, so is the city, which as to such districts, is a trustee. Wheeler v. City of Blackfoot, 55 Idaho 599, 45 P.2d 298; Cruzen v. Boise City, supra. To what extent, the city clerk being a city official and of course having actual notice, the city is thereby charged with actual notice we need not determine. The city certainly had as much constructive notice as the purchaser of the bonds. Likewise, the...
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