Reynard v. The City of Caldwell

• Decision Date: 19 April 1933
• Docket Number: 5977
• Citation: 53 Idaho 62,21 P.2d 527
• Parties: E. C. REYNARD, Appellant, v. THE CITY OF CALDWELL, IDAHO, a Municipal Corporation, and FRED L. LILLY, as Mayor of Said City of Caldwell, Idaho, and EMERY BALES, JOE DICKENS, CARL JOHNSTON, ART KEISTER, M. S. SANDMEYER and EMERY VASSAR, as Councilmen of Said City of Caldwell, Idaho, C. D. RUSH, as City Clerk of Said City of Caldwell, Idaho, and HARRY E. PARMENTER, as City Treasurer of Said City of Caldwell, Idaho, Respondents
• Court: Idaho Supreme Court

21 P.2d 527

53 Idaho 62

E. C. REYNARD, Appellant, v. THE CITY OF CALDWELL, IDAHO, a Municipal Corporation, and FRED L. LILLY, as Mayor of Said City of Caldwell, Idaho, and EMERY BALES, JOE DICKENS, CARL JOHNSTON, ART KEISTER, M. S. SANDMEYER and EMERY VASSAR, as Councilmen of Said City of Caldwell, Idaho, C. D. RUSH, as City Clerk of Said City of Caldwell, Idaho, and HARRY E. PARMENTER, as City Treasurer of Said City of Caldwell, Idaho, Respondents

No. 5977

Supreme Court of Idaho

April 19, 1933

MUNICIPAL CORPORATIONS - SPECIAL IMPROVEMENTS - ASSESSMENTS-MUNICIPAL PROPERTY, LIABILITY OF-MANDAMUS-CONSTITUTIONAL LAW.

1. Special "assessment" for improvements held not "tax" within constitutional provision exempting public property from taxation (Const., art. 7, sec. 4).

2. Legislature has power to provide for incorporation organization and classification of cities, and to determine authority of cities, subject only to constitutional limitation on indebtedness (Const., art. 11, secs. 1, 2, art 18, sec. 3).

3. Cities and villages are required to pursue statutory methods and provisions in making local improvements.

4. Special assessment cannot be levied against property of city for local improvements in absence of positive statutory authorization.

5. City held without authority to levy special assessments against its own property for cost of local improvements (C. S., sec 3942; I. C. A., secs. 49-1106, 49-2701 to 49-2703, 49-2707, 49-2716, 49-2725 to 49-2728).

6. Holder of local improvement bonds held not entitled to mandamus to compel city to apply unused proceeds of general obligation bonds for payment of assessments against city's property, where city never fixed any amount to be paid from general funds for improvements and item never was included within budget or appropriation bill (I. C. A., secs 13-302, 49-1716, 49-1717, 49-2702, 49-2703, 49-2707, 49-2728; C. S., sec. 4053).

7. Statutory provisions for publishing notice of annual estimate of municipal appropriations are mandatory (I. C. A., sec. 49-1716).

8. Expense of paving streets held not "ordinary and necessary expense," as regards statutory provision limiting expenditures to amount of appropriation (I. C. A., sec. 49-1717).

9. Legal right to performance of act must be clear and complete to entitle one to mandamus (I. C. A., sec. 13-302).

10. Allowance or refusal of writ of mandate is within trial court's discretion and court should refuse writ in case of grave doubt (I. C. A., sec. 13-302).

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Appeal from a judgment dismissing plaintiff's action, sustaining a demurrer to, and granting the motion to quash, the application and affidavit for a writ of mandate. Affirmed.

Judgment affirmed. Costs to respondents.

Delana & Delana and M. H. Eustace, for Appellant.

The constitutional exemption from general taxation is not applicable to special assessments. (Elliott v. McCrea, 23 Idaho 524, 130 P. 785; Booth v. Graves, 43 Idaho 703, 255 P. 638; Brown v. Shoupe, 40 Idaho 252, 233 P. 59.)

Public property is subject to special assessments. (44 C. J. 539, sec. 2906; Wichita v. Board of Education of Wichita, 92 Kan. 967, 142 P. 946; 2 Cooley on Taxation, 3d ed., pp. 1153, 1155, 1234; School Town of Windfall City v. Somerville, 181 Ind. 463, 104 N.E. 859, Ann. Cas. 1916D, 661; New Orleans v. Warner, 175 U.S. 120, 20 S.Ct. 44, 44 L.Ed. 96, at 106.)

No question of constitutional debt limitation can be involved if the city's part of the improvement can be paid in cash by the city. (McEwen v. City of Coeur d'Alene, 23 Idaho 746, 132 P. 308.)

Stewart S. Maxey and S. Ben Dunlap, for Respondents.

In accordance with well-settled general principles, statutory authority is necessary to authorize the levy of an assessment for public improvements on public property, and the statutes relied upon to show the power must show the intent to make the property assessable. (Dowdney v. Mayor of New York, 54 N.Y. 186; City of Englewood v. Los Angeles County, 207 Cal. 697, 280 P. 360; 4 Dillon on Municipal Corporations, p. 2577, sec. 1446.)

A municipality is forbidden to incur any indebtedness or liability in any manner or for any purpose exceeding, in that year, the income or revenue provided for it for such year, without the consent of two-thirds of the qualified electors, voting at an election or unless, before or at the time of incurring the obligation, provision be made for the collection of an annual tax sufficient to pay the interest on the obligation as it falls due, and also to constitute a sinking fund for the payment of the indebtedness within twenty years from the time of contracting the same. Any indebtedness or liability incurred in any other manner is void, provided such indebtedness or liability is not for ordinary and necessary expenses authorized by the general laws. (Const., art. 8, sec. 3; Feil v. Coeur d'Alene, 23 Idaho 32, 129 P. 643, 43 L. R. A., N. S., 1095; Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034.)

WERNETTE, J. Givens, Morgan and Holden, JJ., concur, Sutphen, D. J., concurs in the conclusion.

OPINION

WERNETTE, J.

This is an action commenced by appellant against the City of Caldwell, its Mayor, Council, Clerk and Treasurer, for an alternative writ of mandate to compel respondents to make provision for, and pay into the improvement fund, special assessments levied against city property for local improvements.

During the years of 1919 and 1920, the City of Caldwell organized Local Improvement Districts Numbers 2 and 4, for the purpose of paving certain streets within said districts. Property belonging to the city, known as the city library, city park and city garage, was included in the two districts, the said city property fronting on the streets that were being paved. The ordinary steps were taken in creating the improvement districts, and, among other things, an assessment-roll was prepared by the street committee, which included the city engineer and two members of the city council. The street committee attempted to determine the amount of benefit that would inure to the property known as the city library, city park and city garage, by reason of the improvements, and attempted to assess said public property on a front-foot basis in accordance with the benefits accruing to the property, in the same manner as all other property within the districts was assessed. The city council after notice was given, confirmed said assessments. Opportunity was given the property owners within the districts to then pay the assessments made on their respective properties, and certain cash payments were so made. Local improvement bonds of the improvement districts were then issued to pay the balance of the cost of the improvements, and were sold to the appellant and others, appellant now being the owner and holder of some of said bonds. The interest and installments of the bonds were paid regularly, without default, until January 1, 1931, but the city did not make any of the payments of the assessments levied against its property in said districts. Now there is insufficient money in said improvement districts' funds to pay any of the unpaid bonds, some of which are held by the appellant.

An alternative writ of mandamus was issued, based upon an amended application therefor, supported by a second amended affidavit. Respondents filed a general and special demurrer and a motion to quash. After hearing, the lower court sustained the demurrer to the application or petition, granted the motion to quash, and dismissed appellant's action.

Appellant has perfected this appeal, alleging as error the court's action in sustaining the demurrer, granting the motion to quash and dismissing the action. The most important question presented is, did the city have the right to levy the special assessments against its own property to pay for the special benefits derived by such property, by reason of the improvements made? If so, it must be by reason of constitutional provisions and statutes of the state pertaining thereto. Article 7, section 4, of the state Constitution reads as follows: "The property of the United States, the state, counties, towns, cities, and other municipal corporations and public libraries shall be exempt from taxation."

There is a well-recognized distinction between an assessment for special improvements and the levy of a tax, and while the power to levy special assessments comes from the general power of taxation, the two should not be confounded. General taxes are a public imposition levied for the purpose of carrying on the government, an assessment is induced by request, made known according to charter provisions or general law of the majority of the inhabitants of the assessment districts, or under some statute by determination of the question of the public needs, and is levied for the benefit of the property situated in a particular district. An assessment, wholly dependent on the benefits to accrue, is not a tax within the purview and meaning of the constitutional provision above stated, but a charge in rem against the special tracts of land assessed for benefits.

There being a real distinction between the rule applicable to special assessments and the constitutional and statutory provisions pertaining to taxation and exemption from taxation, therefore the special assessments in question are not prohibited by reason of our said constitutional provision (18 Cal. Jur. 1047-1049; 44 C. J. 538; Elliott v. McCrea, 23 Idaho 524, 130 P. 785).

Referring to the constitutional provisions with reference to the incorporation, organization and classification of cities and towns, we think that the Constitution, article 11, sections 1 and 2,...