Marion v. City of Lander

• Citation: 394 P.2d 910
• Decision Date: 21 August 1964
• Docket Number: No. 3254,3254
• Parties: William L. MARION, Oscar Deal, Robert D. Robinson, Edward A. Farlow, Clyde H. Decker, James M. Wade, and Wainright Gustin, Appellants (Plaintiffs below), v. CITY OF LANDER, Wyoming, a Municipal Corporation, and Mel T. Hallam, Mayor, and Harold E. Farthing, H. A. Carson, Charles H. Souter, and Woodrow Von Bieker, members of the City Council of said City of Lander, Wyoming, Appellees, (Defendants below).
• Court: United States State Supreme Court of Wyoming

Page 910

394 P.2d 910

William L. MARION, Oscar Deal, Robert D. Robinson, Edward A. Farlow, Clyde H. Decker, James M. Wade, and Wainright Gustin, Appellants (Plaintiffs below), v. CITY OF LANDER, Wyoming, a Municipal Corporation, and Mel T. Hallam, Mayor, and Harold E. Farthing, H. A. Carson, Charles H. Souter, and Woodrow Von Bieker, members of the City Council of said City of Lander, Wyoming, Appellees, (Defendants below).

No. 3254.

Supreme Court of Wyoming.

Aug. 21, 1964.

John J. Spriggs, Sr., Lander, and John J. Spriggs, Jr., Washington, D. C., for appellants.

Smith & Harnsberger, W. A. Smith, Lander, for appellees.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

This case involves an appeal from a summary judgment entered by the trial court on behalf of appellees, defendants below, in an action commenced by appellants, plaintiffs below, as taxpayers and owners of real property in the City of Lander, Wyoming, for themselves and others similarly situated, to enjoin further proceedings undertaken by the defendants to establish a local improvement district for the purpose of constructing and installing certain improvements therein; and to assess the costs thereof as special benefits to the property owners within the district.

Briefly, the record before us discloses that in the early part of the year 1963 officials of the City of Lander became interested in an extensive program of street paving within the city, including curb and gutter, drainage, and other incidental improvements in connection therewith. A procedure to accomplish such an undertaking is contained in §§ 15-444 to 15-512, inclusive, W.S.1957, as the same have been amended by Ch. 145, S.L. of Wyoming, 1963. Without here going into the detail of the statutory grant of power to cities and towns in the premises herein, it can be said generally that four essential steps must be taken by the city council in order to perfect the procedure: (1) the adoption of a resolution of intention to make the improvements containing certain prescribed information and fixing the time and place for hearing protests; (2) the enactment of an ordinance reciting the action taken on the resolution of intention, and if the council determines to proceed, ordering the improvements to be made; (3) the letting of a contract for construction and installation of such improvements; and (4) the levy and equalization of special assessments against property owners within the district to defray specified costs of the improvements.

Pursuant to such authority, the city council on July 27, 1963, adopted a resolution declaring its intention to proceed with the program and for that purpose to create an improvement district the boundaries of which were to be coterminous with the corporate limits of the city. However, because of the divergent nature of the improvements, it was proposed that the same be separated into four categories, i. e., residential street paving, arterial street paving, curb and gutter, and drainage and incidental improvements. The total estimated cost was in the sum of $2,322,171.00. The resolution specifically names the streets proposed to be paved and describes generally the nature and extent of the construction work to be done. The same general information is furnished with respect to the other proposed improvements. The resolution also recites that the council has determined that such proposed improvements will confer special benefits upon owners of property within the district and sets forth the method proposed for assessing such benefits. With respect to residential street paving, it is proposed to assess the costs on each one-half block contiguous to the improved street on a square-footage basis. With respect to arterial street paving, the portion of the cost equal to the cost of residential street paving will be assessed on the basis above described and the excess, if any, is proposed to be assessed against all of the assessable property within the district--also on a squarefootage basis. Assessments for curb and gutter improvements are proposed to be made on a lineal-foot basis. With respect to proposed assessments for the drainage and incidental improvements, the council determined that only a limited area within the district would be specially benefited by such improvements, and after fixing the boundaries of the area by a course and distance description it proposed to levy an assessment against all the property therein on a square-footage basis.

The resolution also fixed a time and place for the purpose of considering protests and objections to the proposed improvements and also provided for serving notice of the proceeding in the manner prescribed by statute.

The provisions relating to the filing of protests by owners of real property subject to assessment is of importance in the proceeding. Under our statute, § 15-453, W.S.1957, as amended by Ch. 145, § 5, S.L. of Wyoming, 1963, if owners of more than fifty percent of such property complain in writing, the project as proposed must be abandoned. That was not done here. According to the record the protests made embraced only approximately one-fourth of the area proposed to be improved by street paving and curb and gutter and approximately one-third of the area proposed for drainage and other improvements. Thereupon the city council met in special session on September 16, 1963, and enacted an ordinance which overruled the protests; in essence carried into effect the proposals contained in the resolution of intention; and directed the engineer to prepare plans and specifications for the several projects.

Soon thereafter and before any further steps were taken by the city to complete the matter, the plaintiffs filed their complaint launching a frontal attack upon the validity of the proceedings already taken and proposed to be taken by the defendants. The general basis of their complaint was that enumerable constitutional provisions were being violated by the defendants; that the defendants were proceeding without authority of law and in a fraudulent, arbitrary and capricious manner; and that defendants were without jurisdiction in the premises. The relief sought was a determination that the resolution of intention and the ordinance were void and of no force or effect; that defendant be enjoined from proceeding further in the matter; and for an accounting of alleged illegal expenditures.

The amended answer of defendants, in substance, denied the allegations of the complaint pertaining to the several charges advanced by plaintiffs and prayed that the complaint be dismissed. Following this, the defendants filed a motion for summary judgment pursuant to Rule 56, Wyoming Rules of Civil Procedure. Attached to the motion was a certified copy of the transcript of all of the proceedings taken by the city with respect to the resolution and the ordinance, together with supporting affidavits bearing upon the regularity of such proceedings. At this juncture a critical point was reached in plaintiffs' action. Unless controverted, the factual matters so presented by defendants were sufficient--as later determined by the trial court and with which we agree--to show substantial compliance with applicable statutory requirements for the creation and establishment of the special improvement district. Consequently, if plaintiffs were to succeed in their claims, other than their direct attack upon such statutes, they could no longer rest upon the mere allegations of their complaint. Vipont Mining Co. v. Uranium Research and Development Co., Wyo., 376 P.2d 868, 869. It was necessary for them to come forward in the prescribed manner and 'set forth specific facts showing that there is a genuine issue for trial.' Rule 56(e), W.R.C.P.

That plaintiffs failed to meet this burden is quite apparent. The only response made was the filing of five affidavits made by property owners in the district, stating in substance as a conclusion that they would be unable to pay the special assessments proposed because of their depressed financial situation; an unsworn statement of the county assessor setting forth the assessed valuation of certain lots and improvements within the district for the year 1963; and a few unidentified pictures of the modest and the palatial in the way of improvements upon certain properties represented as being within the proposed district by counsel for plaintiffs. Such matters are wholly without evidentiary value in presenting facts that aid plaintiffs in this litigation. Even assuming that the assessed valuation of certain of the properties for ad valorem tax purposes was properly before the court, there is no requirement so far as we can find that compels the city to take such matters into consideration in fixing and determining the assessment of special benefits. With respect to the other facets of the response, we could not if we tried improve upon the answer made by Judge Blume to similar contentions in Bass v. City of Casper, 28 Wyo. 387, 205 P. 1008, rehearing denied 208 P. 439, 446, wherein in the opinion on petition for rehearing it was stated:

'We are not unmindful of the fact that proceedings for local assessments are of vital importance to the taxpayers affected. We realize that inequality of burden is easily possible, and that even in the absence thereof, a great hardship is often imposed on property holders who can illy afford to contribute toward the making of an improvement which, to others, may appear a necessity. That may be, though it does not appear in the record, the situation of some of the parties assessed in the proceedings herein, and the learned counsel for plaintiff not only zealous in their duty as such, but, affected perhaps also by such condition of hardship known to them, have been insistent in urging upon us the correctness of their points of view. We understand and fully appreciate the situation often...