McQueen v. City of Moscow
| Decision Date | 29 October 1915 |
| Citation | 28 Idaho 146,152 P. 799 |
| Parties | A. V. MCQUEEN, Plaintiff, v. CITY OF MOSCOW, a Municipal Corporation, et al., Defendants |
| Court | Idaho Supreme Court |
CITIES AND VILLAGES-STATUTORY CONSTRUCTION-LOCAL IMPROVEMENT DISTRICTS-CREATION OF-PETITION FOR-WHO MAY SIGN-RESIDENT PROPERTY OWNERS-ACTION OF CITY COUNCIL-RIGHT TO WITHDRAW FROM PETITION.
1. Under the provisions of subd. 2 of sec. 2238f, Laws of 1915 p. 221, the resident owners of property subject to assessment in an improvement district may petition the city council for the creation of such district and request that the cost of the improvements contemplated be assessed against all of the property in such improvement district in proportion to the benefits derived, and if such petition is signed by seventy per cent of the resident owners of property within such district, the council or board of trustees may, in its discretion, assess such expense against all of such property owners in proportion to the benefits derived from such improvement.
[As to meaning generally of "local improvement" for which special assessment may be levied, see note in Ann.Cas. 1914B 542.]
2. Under the provisions of sec. 4 of the Revised Codes, the provisions of said codes and all proceedings under them must be liberally construed with a view to effect their objects and promote justice, and held that a substantial compliance with the law involved in this case is all that is necessary.
3. Held, that the signers of such petition must reside within the proposed district and own property therein subject to assessment for the improvements contemplated.
4. Under the provisions of subd. 4 of said section, if protests against the proposed improvement by the owners of more than two-thirds of the front feet of the lots and land abutting on such improvement and included in the assessment district therein provided be filed on or before the date fixed for such filing, the council or trustees shall not proceed further with the work unless three-fourths (or in case there are only five regular members of the council, then four-fifths) of the members of said council or board of trustees shall vote to proceed with such work.
5. Held, that there is no appeal from the action of the council or trustees in holding that such a petition is sufficient and such action is final unless fraud or misconduct is shown on the part of the council in making such order.
6. Held, that the signature of both husband and wife is not required for the creation of an improvement district where they own and reside upon community property within the district, and that it is not necessary for both husband and wife to sign such petition where the real estate is owned by one of the parties as separate property where a homestead has been filed thereon; and held, that if the community property stands in the name of the wife, it is not necessary for the husband to join in such petition, and that where the husband and wife own community property in such district and both sign the petition for the creation of the improvement district, they should only be counted as one; and where one member of the community fails to sign such petition, the one signing should be counted.
7. Where a corporation, incorporated under the laws of this state, owns property subject to assessment in such district and signs the petition, it should be counted in favor of the district.
8. Foreign corporations owning property in such district subject to assessment, ought not to be counted either for or against the improvement district.
9. A person who signs such petition should be counted who holds real estate subject to assessment of benefits within such district under contract, the deed being in escrow, where his grantor has not signed the petition based on his ownership of such real estate.
10. Where two persons are joint owners of real estate within such improvement district and they also own real estate in said district individually, they should each be counted but once on such petition.
11. Nonresidents of such district who sign such petition ought not to be counted.
12. A name ought not to be counted on such petition when placed thereon sixty days after the petition was filed and acted upon by the municipality.
13. Where a husband and wife reside in such district, each having separate property in such district, and sign the petition they must each be counted as a petitioner.
14. Residents of such districts who are temporarily absent and have not established a residence in any other place, having real estate in such district subject to assessment, are competent to sign such petition.
15. Anyone who has signed such petition has a right to withdraw his name therefrom at any time before the council passes the ordinance of intention, but not afterward.
Original application to this court for a writ of prohibition to prohibit the city counsel of Moscow from proceeding with the improvements contemplated in Improvement District No. 6 of said city. Alternative writ issued and on hearing the same is quashed and the peremptory writ denied.
Affirmed, and the alternative writ quashed and the peremptory writ denied. Costs awarded to the defendants.
John Nisbet, for Plaintiff.
"Where the power to pave or to improve depends upon the assent or petition of a given number or proportion of the proprietors to be affected, this fact is jurisdictional, and the finding of the city authorities or counsel that the requisite number had assented or petitioned is not, in the absence of legislative provision to the effect, conclusive; and want of such assent makes the whole proceeding void."
"Both husband and wife must sign the petition or neither name can be counted." (Auditor General v. Fisher, 84 Mich. 128, 47 N.W. 574; Jacobs v. Miller, 50 Mich. 119, 124, 15 N.W. 42.)
The church corporations must be considered as resident property holders. (Auditor General v. Fisher, supra.)
There should be no discrimination between a domestic and foreign corporation in this particular.
If the requisite number of legal signers are not upon the petition then the whole proceedings based thereon are void.
The authorities seem to be in general accord that one tenant in common cannot sign a petition of this character. (Auditor General v. Fisher, supra; Von Steen v. Beatrice, 36 Neb. 421, 54 N.W. 677, 680.)
C. J. Orland, for Defendants.
A railway corporation is to be regarded as a resident of any county in which it operates its road or exercises its corporation franchise. (State v. Bogardus, 63 Kan. 259, 65 P. 251; Chicago, R. I. & P. Ry. Co. v. Ellithorpe, 78 Iowa 415, 43 N.W. 277; State v. Iowa C. R. Co., 91 Iowa 275, 59 N.W. 35; State v. Cipra, 71 Kan. 714, 81 P. 488.)
On the other side, holding that a foreign corporation is not a resident within the meaning of such statutes as this, are the following, with many others: Kimmerle v. Topeka, 88 Kan. 370, 128 P. 367, 43 L. R. A., N. S., 272; Galveston, H. & S. A. Ry. Co. v. Gonzales, 151 U.S. 496, 14 S.Ct. 401, 38 L.Ed. 248; Maisch v. New York, 193 N.Y. 460, 86 N.E. 458.
The Potlatch Lumber Company is a foreign corporation; it has a general place of business at Potlatch, in Latah county, with lumber-yards located in various towns and cities in Idaho, one of which is located in Moscow. It seems to be generally held that even a domestic corporation can have but one residence in a state; can a foreign corporation have a greater privilege? (Sangamon & M. R. R. Co. v. Morgan County, 14 Ill. 163, 56 Am. Dec. 498; Robinson v. Missouri P. R. R. Co., 67 Kan. 278, 72 P. 854; Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853; Paul v. Virginia, 75 U.S. 168, 19 L.Ed. 357; Farmers' L. & T. Co. v. Chicago & A. Ry. Co., 27 F. 146.)
A withdrawal from the petition must be made prior to the time when the petition is acted on by the board or council, to which it is presented. (State v. Board of Supervisors, 88 Wis. 355, 60 N.W. 266.)
Under statutes similar to the one under consideration, where a petition of a certain per cent of the owners of property, subject to assessment, is required, this requirement must be strictly complied with; it is jurisdictional, and may be raised at any time by the parties whose property has been or is to be assessed, in the event that such petition has not been filed as by law required, and the competency of the signers may be inquired into, wherever the question is raised. (Mulligan v. Smith, 59 Cal. 206, 225; Kahn v. Supervisors of San Francisco, 79 Cal. 388, 21 P. 849.)
J. R Keeny, having signed the petition...
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