Murphy v. City of Bismarck

• Decision Date: 29 May 1961
• Docket Number: No. 7941,7941
• Citation: 109 N.W.2d 635
• Parties: Wm. J. MURPHY, John B. Rhud, Laura M. Hughes, P. R. Webb, C. P. Nelson, George L. Baska, Maude Grambs, G. W. Grambs, Alice Owens, and H. M. Beall, on behalf of themselves and all other taxpayers similarly situated, Plaintiffs and Appellants, v. CITY OF BISMARCK, a municipal corporation, Tom Baker, as City Auditor of the City of Bismarck, Katie Peterson, as Treasurer of the City of Bismarck, and Even E. Lips, as President of the City Commission of the said City of Bismarck, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 635

109 N.W.2d 635

Wm. J. MURPHY, John B. Rhud, Laura M. Hughes, P. R. Webb, C P. Nelson, George L. Baska, Maude Grambs, G. W. Grambs Alice Owens, and H. M. Beall, on behalf of themselves and all other taxpayers similarly situated, Plaintiffs and Appellants, v. CITY OF BISMARCK, a municipal corporation, Tom Baker, as City Auditor of the City of Bismarck, Katie Peterson, as Treasurer of the City of Bismarck, and Even E. Lips, as President of the City Commission of the said City of Bismarck, Defendants and Respondents.

No. 7941.

Supreme Court of North Dakota.

May 29, 1961.

Syllabus by the Court.

1. Section 130 of the North Dakota Constitution directs the Legislative Assembly

to provide by the governal law for the organization of municipal corporations. These municipal corporations, when created pursuant to statute, become agencies of the State and have only the powers expressly conferred upon them by the Legislature or such as necessarily may be implied from the powers expressly granted.

2. Through the device of municipal corporations, a portion of the legislative power of the State is delegated to local authorities.

3. Among the legislative grants of power to cities is the power to create improvements by the special-assessment method as set forth in Chapter 40-22, N.D.C.C.; and Section 40-22-08, N.D.C.C., in conjunction with Section 40-05-01(8) and cognate statutes, expressly grants power to create street-improvement districts to widen, pave, and otherwise improve streets and avenues. Those statutory provisions which are mandatory and not merely directory, prescribing the method or procedure to be followed, must be strictly observed.

4. The creation of the special-assessment district was within the legislative powers of the city commission and the presumption of validity attached to the action taken, and the record has not revealed any basis for the conclusion that the city commission's legislative discretion was abused, so the courts cannot interfere therewith.

5. Section 40-22-09, N.D.C.C., provides that 'each improvement district shall be of such size and form as to include all properties which in the judgment of the governing body, after consultation with the engineer planning the improvement, will be benefited by the construction of the improvement project which is proposed to be made in or for such district.'

6. The determination of the size and form and boundaries of the special-assessment district was within the legislative powers of the city commission and the presumption of validity attached to the action taken, and the record has not revealed any basis for the conclusion that the city commission's legislative discretion was abused so the courts cannot interfere therewith.

7. Section 40-22-09, N.D.C.C., supra, further provides: 'Any improvement district created by a municipality may embrace two or more separate areas.' Section 40-22-18, N.D.C.C., provides: 'Protest Bar To Proceeding--* * * If the governing body finds the protests [against the adoption of the resolution of necessity] to contain the names of the owners of a majority of any separate property area included within the [special assessment] district, such protests shall be a bar against proceeding with the portion of such improvement project, the cost of which is to be assessed in whole or in part upon the property within such [separate property] area.' The term 'separate property area,' as used in Sections 40-22-09 and 40-22-18, N.D.C.C., means 'a geographically separate or noncontiguous area.'

8. A special-assessment district, which in this case is a street-improvement district and includes only property lying within a single, continuous, closed boundary, with streets and avenues that form a contiguous and interconnecting network, is one single area and does not embrace two or more separate areas; and, since the district was one single area, plaintiffs' written protests did not contain a majority as required by Section 40-22-18, N.D.C.C., supra.

9. A right of way for a city street is an easement, and an abutting lot owner, such as the plaintiffs herein, owns the fee to one-half of the street; that is, the adjacent lot owner owns a fee in the half of the street which is contiguous to his property. However, the city has certain powers and privileges incident to such right of way, including the right of the city to remove or trim trees planted or maintained by an abutting lot owner, when it is reasonably necessary for improvement of the street.

10. Special assessments for the payment of local improvements are sustained under the exercise of the power of taxation.

11. Section 40-23-01, N.D.C.C., provides: 'The executive officer of each municipality, when it shall be found necessary, shall appoint three reputable residents and freeholders of the municipality as members of a commission which shall be known as the special assessment commission. * * *'

12. Section 40-23-14, N.D.C.C., provides that 'any aggrieved person may appeal from the action of the special assessment commission.' Section 40-23-15, N.D.C.C., provides, in part: 'The governing body shall hear and determine the appeals and objections and may increase or diminish any of such assessments as it may deem just, except that the aggregate amount of all the assessments returned by the [special assessment] commission shall not be changed and no assessments as adjusted shall exceed the benefits to the parcel of land on which it is assessed as determined by the assessment commission.'

13. Pursuant to the express provisions of Sections 40-23-05, 40-23-07, and 40-23-15, N.D.C.C., the special-assessment commission is vested with the power and authority to fix and determine not only the benefits but the amount of the assessment each property owner should be required to pay, subject to the statutory review by the government body provided for by Section 40-23-15, N.D.C.C.

14. A judicial review of the question of benefit or detriment to the abutting property owners is premature until after the special-assessment commission has caused to be made a complete list of the benefits and assessments and has confirmed the list for certification to the office of the city auditor or the village clerk, as the case may be.

Rausch & Chapman, Bismarck, for plaintiffs and appellants.

John A. Zuger, City Atty., Bismarck, for defendants and respondents.

A. J. GRONNA, District Judge.

This is an appeal by the plaintiffs, abutting property owners, from the judgment in favor of the City of Bismarck in a civil action in the district court of Burleigh County, the Honorable H. E. Rittgers, District Judge, presiding. Plaintiffs demand a trial de novo. Such judgment determines and adjudges:

(1) That Street Improvement District No. 60 was legally and properly created in March 1960 by Ordinance No. 1358, enacted by the board of city commissioners of Bismarck to widen, pave, and otherwise improve an interconnecting network of streets and avenues lying within twenty-eight contiguous blocks;

(2) That protests filed by the plaintiffs and other property owners of the district were insufficient to bar the proposed improvements and special assessments;

(3) That the plaintiffs' demand for an injunction against the proposed improvement of Avenue C should be and was denied, plaintiffs being the owners of properties generally lying adjacent to Avenue C between Third Street and Ninth Street (six blocks); and

(4) That, inasmuch as construction work has not been commenced and no special assessments have been levied at the present time, any question of benefit or detriment to the plaintiffs is premature and, further, that no injunction can be granted to prevent a legislative act by a municipal corporation, namely, determining the benefit which the object of the assessment confers on the owner of each lot or parcel of abutting property and then laying a special assessment in the amount of such benefit.

Statement of Facts.

The widening of the paving will not require a widening of the right of way upon and along any of the streets and avenues in District No. 60, inasmuch as such right-of-way width now is, and has been, eighty feet. The City presently owns, in trust for the public, right of way eighty feet in width; consequently, all of the proposed construction and all of the trees which will be removed are within and upon the presently owned right of way. The only trees which will be removed are those in the path of construction.

Avenue C, between Third Street and Ninth Street, is paved to a width of only twenty-five feet. Such paving is over forty years old and the present curbing is broken and in need of replacement or repair, and there are no gutters. Such narrow width of twenty-five feet has required prohibition of street parking so that not even abutting owners may park. The zoning is residential, mostly multiple-family dwellings.

On March 29, 1959, Ordinance No. 1308 established the following standard of paving for residential areas throughout the city of Bismarck, to wit: '(a) The standard width shall be 36 feet.' Ordinance No. 1308 was enacted pursuant to the provisions of Section 40-56-02, N.D.C.C., which provides: 'The governing body of any city may, by ordinance, establish standards of paving for residential areas which standards shall be uniform throughout the entire city, and said ordinance may be amended or repealed in the same manner as other ordinances of the city.'

On March 29, 1960, the board of city commissioners, pursuant to the provisions of Section 40-56-03, adopted a resolution declaring the necessity of an improvement in Street Improvement District No. 60, section 3 of which resolution reads: 'Such portion of the cost of said paving as exceeds the cost of standard paving in residential areas, as established in Ordinance No. 1273, as amended [by Ordinance No. 1308], shall be paid by ad valorem taxes to be levied upon all taxable property within the City, subject to approval...