McGarvey v. Swan

• Decision Date: 15 July 1908
• Citation: 96 P. 697,17 Wyo. 120
• Parties: McGARVEY v. SWAN, CITY TREASURER
• Court: Wyoming Supreme Court

96 P. 697

17 Wyo. 120

McGARVEY v. SWAN, CITY TREASURER

Supreme Court of Wyoming

July 15, 1908

RESERVED questions from the District Court, Laramie County HON. RODERICK N. MATSON, Judge.

The action was brought in the District Court by Charles E McGarvey against Daniel S. Swan, as City Treasurer of the City of Cheyenne, to enjoin the collection of a special assessment upon certain property of plaintiff, levied to pay the cost of constructing a sewer along a street upon which said property abuts. The case came to the Supreme Court upon certain reserved questions deemed to arise upon the consideration of a demurrer to the petition. The questions and facts are stated in the opinion.

Ray E Lee, for the plaintiff.

Chapter 7, Laws 1903, was unconstitutional as a local and special act within the prohibition of Section 27, of Article III, of the Constitution, because it was so restricted in operation that it could never apply to any other municipality than the City of Cheyenne; because it was restricted to existing conditions; and because a general law would apply. (Boyd v. Milwaukee, 92 N.W. 456; State v. Turner, 107 S.W. 1064; Murnane v. St. Louis, 123 Mo. 479; Henderson v. Koenig, 168 Mo. 375; State v Messerly, 198 Mo. 351; Wagner v. Milwaukee, 112 Wis. 601; Burnham v. Milwaukee, 98 Wis. 128; Blankenburg v. Block, 200 Pa. St. 629; Longview v. Crawfordsville, 73 N.E. 78; Johnson v. Milwaukee, 88 Wis. 383; Platt v. Craig, 66 O. St. 75; State v. Jones, 66 O. St. 453; Topeka v. Gillett, 32 Kan. 431; Ayars v. Westfield, 122 Pa. St. 266.) From the authorities cited the following principles are deducible: 1. A natural or reasonable classification for legislative purposes does not violate the constitutional provisions requiring equality and uniformity in the operation of laws. 2. The law must apply to all members of any given class without distinction or exception, no matter how that class is established. 3. A law which establishes a class, but precludes all possibility of other members ever entering that class, falls within the constitutional prohibition. 4. Where a general law is applicable a special law is invalid. It has been held proper to classify cities according to population for certain purposes, but this classification must be open, and must not unalterably fix any given city within a given class.

Evidently the Legislature had some one city in mind when the act in question was passed and they desired to describe it so carefully that no one could mistake it. The Constitution prohibits the incorporation of cities under special charter now, so the Legislature said "heretofore." But there might be some city incorporated under the general law of Wyoming that would meet the other qualifications, so it was declared, "incorporated under a special charter." But this even might let in some undesirable member, so that it further provided, "having a population of not less than ten thousand inhabitants." But this was not satisfactory, so there was added the words: "to be determined by the last preceding United States census." And in addition to that the further restriction: "having power to make special assessments for the construction of sewers."

At the time the act was passed there were four cities incorporated under special charters, and one city of the four that had a population of not less than ten thousand inhabitants. This same city had that population according to the last preceding United States census, and alone had power to make special assessments for the construction of sewers. So there was one city (Cheyenne) in the exclusive class created by the Legislature.

Even granting that cities could still incorporate under special charters at the time this act was passed, the word heretofore would exclude them. If some city under special charter, other than Cheyenne, should attain to a population of ten thousand inhabitants, that would not be its population according to the United States census for the year 1900, which must have been the one referred to by the "last preceding United States census." But granting that this would not exclude other cities, the last qualification, having power to make special assessments for the construction of sewers, would bar them all.

A classification for legislative purposes must be reasonable. Section 1638, Revised Statutes 1899, expresses the general law of the State concerning special assessments for the construction of sewers. This law is radically different from the law of 1903. It provides for special assessments according to benefits conferred, and for the front foot rule of apportionment. This is the law which governs the making of special assessments in cities of the first class organized under the general laws. The act attempts to establish a different method in a certain city organized under a special charter, which already had a method of making special assessments differing from the general law. What reason is there for not applying the same law to cities of the same class, regardless of whether their charters are special or general, so far as making special assessments is concerned? All cities having the same population are supposed to have practically the same local conditions to meet, therefore, they are put into one class. If there is not some inherent reason for a distinction between such cities, then a classification making such a distinction is not reasonable. (1 Suth. Stat. Const., Ch. 6.)

The act was unconstitutional because it enacted a new class of municipal corporations, when such corporations had already been divided into four classes, to which number such classes are limited by the Constitution. (Art. 13, Sec. 1.) The four classes were: (1) Cities incorporated under special charters; (2) Towns incorporated under the general law of Wyoming; (3) Cities of the second class incorporated under the general law of Wyoming; (4) Cities of the first class incorporated under the general law of Wyoming.

The act was unconstitutional, because it authorized the taking of private property for public use without just compensation, and also because it authorized the taking of property without due process of law. (Dillon Mun. Corp., Sec. 761 et passim; Burroughs Taxation, p. 460 et seq.; Cooley, Taxation, Ch. 20; Hamilton, Law of Special Assessments, Secs. 150-152, 238-239; Norwood v. Baker, 172 U.S. 269; State v. Mayor, 42 A. 773; White v. Tacoma, 109 F. 32; Dexter v. Boston, 57 N.E. 379; Chicago v. Blair, 149 Ill. 310; State v. Comm'rs, 41 N. J. L. 83; Asberry v. Roanoke, 22 S.E. 360; Doughten v. Camden, 63 A. 170; Boyden v. Brattleboro, 37 A. 164; Hammett v. Philadelphia, 65 Pa. St. 146.) Most of the authorities cited by the defendant declare that it is the province of the Legislature to determine the question of benefits, hence when this has once been so determined, they refuse to interfere in behalf of the property holder. No doubt it is proper for the Legislature to decide whether or not the laying of sewers, the establishing of water works, and the paving of streets are of such especial benefit to the community and property immediately surrounding the place where such improvements are to be made, that a special assessment is proper. But it is not the function of the Legislature to predetermine in all cases that a certain area is equally benefited.

If it should be held that those applying the rule established by the act had the power to consider the question of benefits and apply the rule accordingly, still they must hold the assessment in question unconstitutional; for it is alleged in the petition and admitted by the demurrer, that the council did not consider or discuss the question as to whether or not the property of this plaintiff or of any other person assessed would be benefited. The authorities cited by us hold: 1. That special assessments must be made according to benefits conferred; 2. That something of value must be added to the property assessed, which it did not before possess, before it can be said to be benefited; 3. That where property is assessed in excess of benefits conferred, it is by that much a taking of property for public use without just compensation; 4. That the question of benefits conferred is not finally determined by the Legislature, but the courts have authority to review assessments and hold them and the laws under which they are made invalid and unconstitutional. This, we submit, is the holding of the better reasoned cases.

William A. Riner, for the defendant.

Section 28 of Article 1, and Section 1 of Article 15 of the Constitution, have no application to the case at bar. They refer to taxation solely. Likewise Section 33 of Article 1 refers only to eminent domain. (Cooley on Taxation, 1199; Banaz v. Smith, (Cal.) 65 P. 309; Heman v. Schulte, (Mo.) 66 S.W. 163; Chambers v. Satterlee, 40 Cal. 513; Williams v. Mayor, 2 Mich. 560; Bloomington v. Latham, 142 Ill. 462; Hamilton Sp. Assm'ts., Sec. 162.)

The principal objection raised to the area rule of apportionment seems to be that it violates the provision embodied in Sections 6 and 7 of Article 1 of the Constitution. There is no doubt, however, that the area rule of apportionment as prescribed by Chapter 7, Laws 1903, is entirely valid when viewed in the light of the constitutional provisions last referred to. The overwhelming weight of authority sustains this method of apportionment in special assessments for public improvements. Reference to text-books and cases alike demonstrate this to be true. Besides it is to be continually borne in mind that it is thoroughly well established by the current of authority that "a public improvement having been made, the question of determining the area benefited by such improvement is generally held to be a legislative function, and such legislative...