MaGuire v. Whillock
| Decision Date | 27 March 1942 |
| Docket Number | 6898 |
| Citation | 124 P.2d 248,63 Idaho 630 |
| Parties | J. C. MAGUIRE, Trustee for Constance Smurthwaite Maguire, Respondent, v. 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, Appellants |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Third Judicial District, in and for Ada County. Honorable Chas. 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. Costs awarded to respondent.
C Stanley Skiles for Appellants.
A reassessment is authorized only when the original assessment roll was invalid or insufficient at the beginning, and then only for the reasons set forth in Section 49-2726 I. C. A. and a reassessment of benefits is not authorized for any default or mistake happening after the adoption of a valid and sufficient assessment roll. (State v. City of Vancouver (Wash.) 295 P. 947; Lucas v. City of Nampa, 41 Idaho 35, 238 P. 288; Bosworth v Anderson, 47 Idaho 697, 280 P. 227; Oregon Short Line v. Berg, 52 Idaho 499, 16 P.2d 373; Reynard v. City of Caldwell, 55 Idaho 342, 42 P.2d 293.)
The bondholder under the statutes relating to improvement districts is given a plain, speedy and adequate remedy and law, and any other action is unauthorized. (New First National Bank v. City of Weiser, 30 Idaho 15, 166 P. 213; New First National Bank v. Linderman, 33 Idaho 704, 198 P. 159; Reynard v. City of Caldwell, 53 Idaho 62, 90 A. L. R. 1124; Section 49-2725, I. C. A.; Blackwell v. Coeur d' Alene, 13 Idaho 357.)
When the assessment roll has been confirmed by the City Council their decision and order is a final determination of the correctness of the assessment to the amount thereof levied on each lot and parcel of land, and when the taxpayer has paid in full the assessment levied against his parcel of land his property is thereupon relieved and discharged of any further liability and his property does not stand as security for any other property; and the bondholder can only look to the taxpayer's property to the extent of the assessment confirmed against such taxpayer's property. (Myers v. Idaho Falls, 52 Idaho 81; New First National Bank v. Linderman, 33 Idaho 704; New First National Bank v. City of Weiser, 30 Idaho 15, 166 P. 213.)
The bondholders' action accrues at the time of the failure of the city to collect or levy assessments, and the statute of limitations runs against his action even though the bonds are a lien upon the real estate. (Little v. Emmett Irrigation District, 45 Idaho 485, 263 P. 40; Lemhi Co. v. Boise Livestock Loan Co., 47 Idaho 712, 278 P. 214; State v. Naylor, 50 Idaho 113, 294 P. 333.
Maurice H. Greene and James W. Blaine, for Respondent.
Reassessment statutes are common provisions in local improvement district codes. (People v. Pierce, 176 N.Y.S. 412; Pearson v. City of Los Angeles, (Cal.), 23 P.2d 778; Hochfield v. City of Portland, (Ore.) 190 P. 772; Foster v. City of Alton, (Ill.) 51 N.E. 76; Bates County v. Willis, 239 F. 783, 793.)
Mandamus is the proper remedy to compel a levy in a local improvement district. The foreclosure statute is a remedy for collection after levy. (Smith v. Boise City, 104 F.2d 933.)
This action is brought to correct the mistake of the city council in not providing a sufficient assessment roll. The mistake was not discovered until 1937 and the action is not barred. (I. C. A. sec. 5-218, subd. 4; State ex rel. Pennock v. Wilson, (Wash.) 216 P. 847.)
While chargeable with knowledge of the statutes under which local improvement district bonds are issued, a bondholder is not required to examine its books of account but may assume that city officials will comply with their statutory duties. ( City of McLaughlin v. Turgeon, 75 F.2d 402.)
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 $ 2796.55 in the assessment, security for the payment of the principal of the district's bonds, and in the second cause $ 3220.20 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 $ 2952.39, 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 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 $ 2736.58, 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 $ 6380.93. The amount of interest provided for in the original assessment of $ 700 was insufficient to pay the interest of 7%, amounting to $ 3760.47, 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 installments assessment made by her June 1, 1928, of $ 1518.48, 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...
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