Morton v. Holes

• Decision Date: 14 February 1908
• Citation: 17 N.D. 154,115 N.W. 256
• Parties: MORTON et al. v. HOLES et al.
• Court: North Dakota Supreme Court

17 N.D. 154

115 N.W. 256

MORTON et al.

v.HOLES et al.

Supreme Court of North Dakota.

Feb. 14, 1908.

Syllabus by the Court.

Chapter 252, p. 389, Laws 1907, entitled “An act to provide for paving, curbing or macadamizing the highways in civil townships adjoining incorporated cities of not less than 6,000 inhabitants, and for the construction of sewers and water mains therein connecting with city sewers and water mains or with their own trunk sewers, and for the construction of sidewalks,” is held to be unconstitutional and void upon the grounds:

First, that it constitutes an unwarranted and illegal discrimination between individuals affected thereby; and

Second, it attempts to delegate legislative powers to individual property owners on certain highways in such townships.

Appeal from District Court, Cass County; Chas. A. Pollock, Judge.

Action by C. A. Morton and others against James Holes and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.Engerud, Holt & Frame, for appellants. W. C. Resser, for respondents.

FISK, J.

The sole question involved on this appeal is the constitutionality of chapter 252, p. 389, Laws 1907. This act provides for the making of certain public improvements, such as paving or macadamizing the highways, the construction of sewers, water mains, sidewalks, etc., in those civil townships adjacent to incorporated cities containing at least 6,000 inhabitants, and providing for the payment thereof. The respondents other than Kennedy are members of the board of supervisors of Fargo township, which township is adjacent to the city of Fargo on the north, and is within the terms of said act. It is conceded that these respondents as such supervisors, acting strictly within the terms of said statute, proceeded in the summer of 1907 to create a sewer district in said township, and, pursuant to a petition theretofore duly filed, ordered the construction of, and contracted with respondent Kennedy for the construction of, a trunk sewer therein, at a cost of about $10,000, and a lateral sewer therein at a cost of about $6,000; also entered into a contract for the paving and curbing of the highway known as North Broadway at a probable expense of $40,000. It is conceded that the intention of the respondent supervisors is to pay the entire expense of such improvements by special assessments upon the property benefited thereby. Appellants brought this action to have the proceedings of the board of supervisors taken under said statute as aforesaid adjudged to be null and void, and to perpetually enjoin defendants from proceeding further with such contemplated improvements. The complaint contains two causes of action alleging all the facts necessary to entitle plaintiffs to the relief demanded upon the theory of the unconstitutionality of said statute. Defendants interposed a general demurrer to the complaint upon the ground that such complaint fails to allege facts sufficient to constitute a cause of action. The trial court made its order sustaining this demurrer, and from such order this appeal is prosecuted.

Counsel for appellants concede that the law in question is not open to the objection that it attempts as between the townships of the state to make an unlawful discrimination by the classification thereof; but they assert that the same creates an unfair and unreasonable discrimination between the property owners within such townships, and hence that it violates the constitutional inhibitions against special legislation found in sections 11, 20, and 69, par. 4, of our Constitution. These sections are as follows:

Section 11: “All laws of a general nature shall have a uniform operation.”

Section 20: “Nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.”

Section 69, par. 4: “Special laws shall not be passed regulating township affairs, or [paragraph 23] for the assessment or collection of taxes.”

Does the act in question contravene any of the above constitutional mandates? If so, the same is null and void, and the demurrer should have been overruled.

Section 1 provides, in substance, as follows: “Any civil township in this state adjoining an incorporated city having at least 6,000 inhabitants, and which shall have paved, graded, curbed or macadamized its streets leading to the boundaries of such civil township, or shall have constructed sewers or water mains in such streets, may pave, grade, or macadamize the highways of such township connecting with such city streets or with such highways so paved, or highways running along the boundaries of such city, or construct sewers or water mains therein as provided by this act. * * *”

Section 2: “Whenever the owners of real property abutting on such highway * * * and representing a majority by feet of the frontage of said property, shall desire to improve such street or highway as herein provided, they shall petition the board of supervisors * * * setting forth and describing specifically * * * the kind, character and extent of the improvement desired, specifying the width and material of pavement, if any, and the size and material of any lateral sewers or water mains, the number and location of manholes and catch basins for such sewers, and the number and location of fire hydrants for such water mains * * * which petition shall be filed in the office of the township clerk. In the case of trunk sewers, the board shall by majority vote, order and construct the same, whenever a majority petition is presented for the construction of lateral sewers that cannot be connected with the city sewers.”

Section 6: “The board shall deem it necessary when a majority petition, above provided for, shall be filed, to construct or alter any sewer or open, widen, extend, pave, etc., any street, alley, avenue, lane, highway or other public ground within the township limits, or to extend, relay or replace any sewer and water main. * * *”

Section 7: “After the plans, specifications and estimate mentioned in the preceding section shall have been filed in the office of the township clerk, the board shall, by resolution, declare such work or improvement necessary to be done according to such plans and specifications. * * *”

It will be seen by the foregoing sections that the owners of property abutting on the highways mentioned in section 1 are granted rights and privileges which...