Pickton v. City of Fargo

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtWALLIN
Citation88 N.W. 90,10 N.D. 469
Decision Date01 November 1901
PartiesPICKTON v. CITY OF FARGO et al.

10 N.D. 469
88 N.W. 90

PICKTON
v.
CITY OF FARGO et al.

Supreme Court of North Dakota.

Nov. 1, 1901.



Syllabus by the Court.

1. Construing the provisions of chapter 41, Laws 1897, as amended by chapter 42, Laws 1899: The city engineer of the city of Fargo on April 24, 1899, filed with the city auditor of said city a document embracing an estimate for a special assessment for a tax to cover the cost of paving and other improvements upon certain streets and avenues of said city lying within a district of the city denominated “Improvement District No. 2,” in which district the plaintiff owned a certain lot, which is described in the complaint. The city officials of said city in the year 1899, basing their action upon said estimate of the city engineer, and acting and claiming to act under section 7 of the original act, as embraced in said chapter 41, Laws 1897, attempted to assess a special tax upon the several lots and parcels of land situated in said improvement district No. 2, including a tax upon the plaintiff's lot. Held, that said attempted assessment was illegal and void, for the reason that section 7 of the original act of 1897 had been repealed long prior to the date of the filing of the engineer's estimate for said assessment, and on March 1, 1899, and that such repeal operated to sweep away all power and authority of any city engineer with respect to any such tax, or estimate therefor, which existed under section 7 of the original enactment.

2. Held, further, for reasons set out in the opinion, that the attempted assessment of the city officials in 1899 would have been illegal and void if the amendment which took effect on March 1, 1899, had never been enacted.

3. The city council authorized said improvements to be constructed in the year 1898, and on September 20th of that year a contract in writing was entered into between the city and one J. K. whereby the latter agreed to construct the improvements upon terms stated in the contract. Before the commencement of this action said contractor had received under said contract, of the bonds and warrants of said city, an aggregate of $14,449.15. Held, that the amendment of the original act, as embraced in chapter 42, Laws 1899, did not so operate as to impair the rights of said contractor, nor to impair the validity of said warrants and bonds.

4. The word “forthwith,” found in the first line of section 7 of the amended act, construed, and held to be directory, merely, and, further, that there was no legal impediment to prevent the city officials from assessing a tax in 1899 under the terms of the amended act, which took effect on March 1st of that year.

5. The curative provisions of section 17 of the act of 1897 considered, and held that said section has no application to the facts of this case, inasmuch as the city officials did not attempt to either assess or levy any special tax under the only law then in force authorizing them to make such an assessment. This record

[88 N.W. 91]

presents a case of total failure to act under the law, and does not present a case of merely irregular action.

6. Held, further, that, under the rule established in this jurisdiction, “substantial injury” and prejudice to the suitor will be presumed, without special evidence being offered for that purpose, in all cases where the taxing authorities attempt to levy or assess a tax either in the absence of legal authority to do so, or where there are substantial errors or omissions of duty on the part of the officials which are fundamental to the tax.

7. Section 2143, Rev. Codes 1899, construed, and held that the provision requiring that on the passage of all ordinances the yeas and nays shall be called and entered upon the journal of the proceedings of the city council is mandatory, and not discretionary.

8. Held, further, that the purpose of this requirement is to fix individual responsibility upon members of the council, and, to do so, it is essential that the journal entries shall show not only the number of votes cast, and the fact that the yeas and nays were called, but likewise the names of the members voting upon the passage of the ordinance, and how each voted,-whether yea or nay.

9. Held, further, that the fact that certain members of the council who are named in the journal entries were present when the council meeting assembled, and answered to their names on roll call, will not warrant the presumption that such members remained until a given ordinance was put upon its passage, and voted thereon.

10. Held, further, that oral evidence is inadmissible, either in lieu of the journal entries, or to supply omissions in the same.

11. Held, further, that where, as in this case, the journal entries of the proceedings show only that upon the passage of an ordinance the yeas and nays were called, and a certain number of votes-a majority of the council-were cast, but omit to show the names of members voting, or how each voted, such entries are insufficient to establish the fact that the ordinance was adopted by the city council.


Appeal from district court, Cass county; Charles A. Pollock, Judge.

Action by Peter Pickton against the city of Fargo and others. Judgment for defend ants, and plaintiff appeals. Reversed.

Turner & Lee, for appellant. H. F. Miller (J. E. Greene, of counsel), for respondents.


WALLIN, C. J.

This action is brought to annul a city paving tax of the city of Fargo, and to enjoin the county treasurer of Cass county, and his successors in office, from collecting said tax. The tax in question was attempted to be assessed by the officials of the city of Fargo pursuant to the provisions of chapter 41 of the Session Laws of 1897; and a consideration of the questions presented in the record will require a construction of said chapter, as well as chapter 42 of the Session Laws of 1899. The case is here for trial de novo, but there is practically no dispute as to the existence of the decisive facts of the case. In substance, the plaintiff alleges that he is the owner of a certain city lot described in the complaint, which fronts on Ninth street, in the city of Fargo, and which is also situated within a certain territorial area of said city, designated by the city officials as “Improvement District No. 2.” It is alleged and conceded that subsequent to the 19th day of September, 1898, certain public improvements, consisting of grading, curbing, and paving, were constructed upon all the avenues and streets lying and being within said improvement district No. 2, including the said Ninth street, and in front of plaintiff's said lot; that all of said improvements were made by one James Kennedy, and according to plans and specifications furnished by the city engineer of said city, and that said Kennedy has been paid therefor in bonds or warrants drawn upon the so-called improvement district No. 2 fund, and so paid to the amount of $14,495.15. Said improvements were made by said Kennedy under the terms of an agreement in writing signed by him on the one part, and by the city of Fargo, by its acting mayor, on the other part, and said writing was signed and dated on September 20, 1898. It is alleged and conceded that after said agreement was signed the tax in question was assessed in the manner hereinafter stated, and that the same has not been otherwise assessed, or attempted to be assessed. The city engineer, acting and assuming to act pursuant to the provisions of section 7 of chapter 41 of the Session Laws of 1897, proceeded to estimate and calculate the amount necessary to be assessed upon the several lots and parcels of land lying within said improvement district, as a means of levying a tax with which to pay the cost of said public improvements. Said estimate of said city engineer was reduced to writing and dated on the 24th day of April, 1899, and on said date was filed with the city auditor of said city. It is further conceded that said estimate and calculation for said tax so made and filed by said city engineer was apportioned upon the basis of the superficial feet in each of said lots and parcels situated within said improvement district No. 2. It is further conceded that on the day said city engineer filed his said estimate with the city auditor, viz. on April 24, 1899, the city council of said city met and took action with respect to advertising said estimate of the city engineer as follows: “Alderman Lewis moved that the auditor be instructed to publish the paving assessment for the improvement districts numbered 2, 4, 5, and 6, according to law.” Whereupon notice of a meeting of the city council was duly advertised for May 8, 1899, to hear objections, if any were made by taxpayers, to said engineer's estimate for assessment in said improvement districts. Pursuant to such notice the city council met on said May 8th, and it appears from the official record of said meeting that the plaintiff and 28 other property owners had filed a protest and petition, which was considered by the council, and which is referred to in the record of the meeting as follows: “A protest and petition signed by

[88 N.W. 92]

twenty-nine property owners in improvement district number 2 protesting against the excessive assessment of said district, and petitioning that said improvement districts numbers 2, 3, 4, and 5 be consolidated in one district, was read.” Whereupon “Alderman Clary introduced and moved the adoption of the following resolution: ‘Whereas, the city engineer has proceeded to calculate the amount specially assessed for grading, paving, and curbing each lot and parcel of land within improvement districts Nos. 1 to 6, inclusive, of the city of Fargo, N. D., under the Laws of 1897 of North Dakota, and filed the same with the city auditor of said city; and, whereas, the law of 1897 relative to the assessment of such grading, paving, and curbing has since been amended; and, whereas, there is grave doubt as to the legality of the assessment made as aforesaid: Therefore be it...

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27 practice notes
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...are not adjudications. [6][7] Such reservations are not idle. Courts of last resort make such. For instance, in West's Case, 10 N. D. 464, 88 N. W. 90, the Supreme Court of North Dakota denied an application for bail “for the time being,” and with the statement that the refusal is not to op......
  • State ex rel. Forman v. Wheatley, 19502
    • United States
    • United States State Supreme Court of Mississippi
    • March 19, 1917
    ...499; Patten v. Green, 13 Cal. 329; Cooper v. Board of Works, 108 Eng. C. L. R. 181; Desty on Taxation, page 597; Pickton v. Fargo (1901), 10 N.D. 469, 88 N.W. 90; Mercantile National Bank v. Hubbard, 105 F. 809; Coe v. Armour Fertilizer Works, 59 Law. Ed. 1027; Security Trust & S. B. Co. v.......
  • State ex rel. City of Milwaukee v. Milwaukee Elec. Ry. & Light Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 10, 1911
    ...be kept stands on no different footing from that relating to the manner of voting. Steckert v. E. Saginaw, 22 Mich. 104;Pickton v. Fargo, 10 N. D. 469, 88 N. W. 90;Cook v. Independence, 133 Iowa, 582, 110 N. W. 1029;In re Ryan, 79 Neb. 414, 112 N. W. 599;Rich v. Chicago, 59 Ill. 286;City of......
  • City of Grafton v. St. Paul, M. & M. Ry. Co.
    • United States
    • United States State Supreme Court of North Dakota
    • October 26, 1907
    ...of the proceedings of the council showing the steps leading up to and the vote upon its final passage, citing Pickton v. City of Fargo, 10 N. D. 469, 88 N. W. 90. This contention is clearly unsound. The case cited is not in point. All that was decided in that case was that the law requiring......
  • Request a trial to view additional results
27 cases
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...are not adjudications. [6][7] Such reservations are not idle. Courts of last resort make such. For instance, in West's Case, 10 N. D. 464, 88 N. W. 90, the Supreme Court of North Dakota denied an application for bail “for the time being,” and with the statement that the refusal is not to op......
  • State ex rel. Forman v. Wheatley, 19502
    • United States
    • United States State Supreme Court of Mississippi
    • March 19, 1917
    ...499; Patten v. Green, 13 Cal. 329; Cooper v. Board of Works, 108 Eng. C. L. R. 181; Desty on Taxation, page 597; Pickton v. Fargo (1901), 10 N.D. 469, 88 N.W. 90; Mercantile National Bank v. Hubbard, 105 F. 809; Coe v. Armour Fertilizer Works, 59 Law. Ed. 1027; Security Trust & S. B. Co. v.......
  • State ex rel. City of Milwaukee v. Milwaukee Elec. Ry. & Light Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 10, 1911
    ...be kept stands on no different footing from that relating to the manner of voting. Steckert v. E. Saginaw, 22 Mich. 104;Pickton v. Fargo, 10 N. D. 469, 88 N. W. 90;Cook v. Independence, 133 Iowa, 582, 110 N. W. 1029;In re Ryan, 79 Neb. 414, 112 N. W. 599;Rich v. Chicago, 59 Ill. 286;City of......
  • City of Grafton v. St. Paul, M. & M. Ry. Co.
    • United States
    • United States State Supreme Court of North Dakota
    • October 26, 1907
    ...of the proceedings of the council showing the steps leading up to and the vote upon its final passage, citing Pickton v. City of Fargo, 10 N. D. 469, 88 N. W. 90. This contention is clearly unsound. The case cited is not in point. All that was decided in that case was that the law requiring......
  • Request a trial to view additional results

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