Rolph v. City of Fargo

• Decision Date: 04 June 1898
• Docket Number: 6731
• Citation: 76 N.W. 242,7 N.D. 640
• Court: North Dakota Supreme Court

76 N.W. 242

7 N.D. 640

R. T. ROLPH v. CITY OF FARGO, et al

No. 6731

Supreme Court of North Dakota

June 4, 1898

Appeal from District Court, Cass County; Pollock, J.

Action by R. T. Rolph against the City of Fargo and A. T. Shotwell as city treasurer of said city, to enjoin the collection of and to cancel special assessments levied on property of the plaintiff Rolph, in the City of Fargo, for the paving of Eighth street in said city. Plaintiff had judgment, and defendants appeal.

Affirmed.

Reversed.

Ball Watson & Maclay, for appellants.

The uniformity rule of taxation prescribed by section 176 constitution, does not apply to special assessments. 25 Am. and Eng. Enc. L. 504, n. I, 495, n. 7. The power of the legislature to provide for taxation and assessments, and to prescribe rules for their apportionment is paramount and unquestionable, excepting in so far as it is restricted by the constitution. Cooley on Taxation, 32; Spencer v. Merchant, 3 N.E. 662; Spencer v. Merchant, 125 U.S. 345; Sheley v. City, 8 N.W. 52; Winona Ry. v. City, 44 N.W. 1072; City v. Knowles, 30 P. 1041; Speer v. City, 11 S.E. 802; Emery v. Gas Co., 28 Cal. 346; English v. Mayor, 37 At. Rep. 158. The application of the front foot rule in paving cases has been generally recognized as just and equitable. Cooley's Const. Lim. 507; Cooley on Taxation, 151; 25 Am. and Eng. Enc. L. 524, n. I; Beaumont v. City, 21 At. Rep. 888; Haveland v. City, 34 N.E. 679; City v. Peace, 14 S.E. 521; Davis v. City, 6 S.E. 230; Amery v. City, 30 N.W. 780. Statutes similar to the one complained of in this case, have been enacted and approved in many of the states. Quinchard v. Board, 45 P. 856; Gilcrest v. Macartney, 66 N.W. 103; City v. Hogan, 32 S.W. 1014; City v. Farrell, 17 S.W. 497; Rutherford v. Hamilton, 11 S.W. 249; City v. Bush, 28 At. Rep. 926; Hand v. Fellows, 23 At. Rep. 1126; Bryan v. Foley, 47 N.E. 351; Praigg v. Co., 42 N.E. 750; Stuart v. City, 45 P. 110; State v. City, 45 P. 122; Board v. Murray, 36 S.W. 180; Gen. Stats. Minn. 1894, § § 1116, 1119, 1247. Respondent is estopped from questioning the validity of the assessment. Tone v. Columbus, 39 Ohio St. 281; Kellogg v. Ely, 15 Ohio St. 64; Tash v. Adams, 10 Cush. 252; Goodin v. Canal Co., 18 Ohio St. 169; Ridwell v. City, 85 Pa.St. 412; Ross v. Stackhouse, 16 N.E. 501; Cluggish v. Koons, 43 N.E. 158. The power to make and levy assessments includes the power to apportion them. Cooley on Taxation, 175; 25 Am. and Eng. Enc. L. 516; Peo. v. Mayor, 4 N.Y. 419.

Chas. J. Mahnken and John E. Greene, for appellants.

The judicial power cannot legitimately question the policy or refuse to sanction the provisions of any law not inconsistent with the fundamental law of the state. 25 Vt. 261; Cooley on Taxation, 43, 48; Sheley v. Detroit, 45 Mich. 432; Cleveland v. Tripp, 13 R. I. 50; State v. Fuller, 34 N.J.L. 227; Erskine v. Nelson County, 4 N.D. 72; Swain v. Fulmer, 34 N.E. 639; 2 Dillon Mun. Corp. 752. The rule of apportionment provided by section 2280, Revised Codes, instead of being contrary to constitutional direction is clearly a restrictive measure within the purview of article 6. Bryan v. Foley, 47 N.E. 351; Palmer v. Stumph, 29 Ind 329; Neenan v. Smith, 50 Mo. 525; State v. Reiss, 38 Minn. 371; Gen. Laws, Minn. 1891, Ch. 146; Statutes of Mo. 1889, § § 1939 1941; Gen. Laws, Ind. (Spec. Sess. 1865,) § § 66-67; Gen. Stat. Kan. § 32, p. 160. Where the legislature has directed that the cost of the improvement be assessed against the abutting property, it will be presumed that it has determined that the cost will not exceed the benefits. Petition of Roberts, 81 N.Y. 62; Cooley on Taxation, (2 Ed.) 661. The cost of the entire improvement may be apportioned to and assessed against abutting property. Sheley v. Detroit, 45 Mich. 431; State v. Fuller, 34 N.J.L. 227; Gordon v. Coones, 47 N.Y. 608; Stone v. Cortes, 38 S.W. 54; Swan v. Fulmer, 34 N.E. 639; Magee v. Pittsburgh, 46 Pa.St. 358; Neenan v. Smith, 50 Mo. 525; Parker v. Challis, 9 Kans. 155; White v. Peo., 94 Ill. 604; Galesburg v. Searles, 114 Ill. 217; Raleigh v. Peace, 17 L. R. A. 330 and n. A sufficient notice and right of hearing is provided. Section 2279, Rev. Codes; Hogar v. Reclamation Dist., 111 U.S. 701; Tripp v. Yankton, 74 N.W. 447; Amery v. Keokuk, 72 Ia. 701; Clapp v. Hartford, 35 Conn. 66. All doubts should be resolved in favor of the constitutionality of this statute. Sweet v. Syracuse, 129 N.Y. 316; Cooley's Const. Lim. (6th Ed.) 88.

Newman, Spalding & Stambaugh, for respondents.

The power to levy special assessments for local improvements is recognized but not created by the constitution. Creighton v. Manston, 27 Cal. 614; Taylor v. Palmer, 31 Cal. 241; Peo. v. Lynch, 51 Cal. 213; Peo. v. Hurlbert 24 Mich. 87. The authority of the legislature over the subject extends only to restricting this power. Constitution Art. 6. The power of levying special assessments must be exercised so as to produce equality and uniformity, and must proceed upon the principle of compensation to the property owner in special benefits in the enhancement of the value of his property by the improvement for which the assessment is laid and must be in proportion to and cannot exceed such benefits. Tiedeman Mun. Corp. § 259; Peo v. Mayor, 4 N.Y. 425; Chicago v. Larned, 34 Ill. 203; Snow v. Fitchbury, 136 Mass. 183; Agaway v. Hampdon, 130 Mass. 528; Seamans Friend Society v. Boston, 116 Mass. 182; Brayton v. Fall River, 124 Mass. 97; Downer v. Boston, 7 Cush. 280; Hascombe v. Omaha, 7 N.W. 739; State v. Patterson, 5 At. Rep. 896; Report of Commissioners, 10 At. Rep. 363; Gilmore v. Heutig, 5 P. 781; Denver v. Knowles, 17 L. R. A. 142; Creighton v. Manson, 27 Cal. 621; Taylor v. Palmer, 31 Cal. 254; Tide Water Co. v. Costen, 90 Am. Dec. 641; Nichols v. Bridgeport, 23 Conn. 189; Chamberlain v. Cleveland, 34 Ohio St. 551; State v. District Court, 29 Minn. 62; State v. Seymour, 35 N.J.L. 49; Dyar v. Farmington, 70 Me. 515; Martin v. Tyler, 4 N.D. 303; Barnes v. Dyar, 56 Vt. 466; State v. Newark, 18 Am. Rep. 729; Seeley v. Pittsburg, 22 Am. Rep. 760; Hammett v. Philadelphia, 3 Am. Rep. 615; Violet v. Alexandria, 23 S.E. 909; State v. District Court, 33 Minn. 306; Washington Avenue, 69 Pa.St. 352, 8 Am. Rep. 255; Thomas v. Gain, 35 Mich. 155; McBean v. Chandler, 24 Am. Rep. 308; Peo. v. Lynch, 51 Cal. 15; State v. Commissioners, 20 Am. Rep. 380; Johnson v. Milwaukee, 40 Wis. 315; In re Mead, 74 N.Y. 221; Petition of Roberts, 81 N.Y. 67. Special assessments cannot be made a charge upon property other than that benefited, because based upon the theory of benefit to the property assessed. Creighton v. Manston, 27 Cal. 614; Taylor v. Palmer, 31 Cal. 241; Neenan v. Smith, 50 Mo. 525; Crow v. Tolans, 96 Ill. 255; Wolf v. Philadelphia, 105 Pa.St. 25; Raleigh v. Peace, 14 S.E. 525. The rule for apportioning the burden is to determine the value of the property benefited without the improvement and its value after the improvement, the difference is the limit to which such assessment can justly extend. Peo v. Mayor, 63 N.Y. 299; Elwood v. Rochester, 43 Hun. 121; Cooley on Taxation, (2d Ed.) 660. The determination of the value of the property before and after such improvement is in its nature a judicial power which can only proceed upon evidence and investigation of existing facts. If exercised by the legislature it must necessarily be by special legislation with reference to particular facts before that body and cannot be exercised by general legislation applicable to all localities. Dillon Mun. Corp. (4th Ed.) § 761; Cooley on Taxation, (2d Ed.) 661; Raleigh v. Peace, 14 S.E. 524; O'Reilly v. Kingston, 114 N.Y. 448; Matter of Roberts, 81 N.Y. 67; State v. District Court, 29 Minn. 62; Percy v. Supervisors, 37 Wis. 79. The restriction imposed by article 6, constitution, is in addition to that implied by the word "assessment." Chamberlain v. Cleveland, 34 Ohio St. 563. The statute is unconstitutional in that it affords no opportunity to be heard upon the question of the amount of benefits conferred or the justice of the assessment. Stuart v. Palmer, 74 N.Y. 183; Brown v. Denver, 3 P. 455; Lent v. Tilson, 14 P. 73; Scott v. Toledo, 36 F. 385; Hagar v. Reclamation District, 111 U.S. 707. The legislature must establish some rule within constitutional limits for the apportionment of the assessments on the lands benefited. State v. Commissioners, 9 Vroom. 193; Barnes v. Dyar, 56 Vt. 466. The constitutional provision is not self executing. State v. Swan, 1 N.D. 5. The only estoppel permissible as against an unconstitutional law is the active invocation of the law by the party against whom the estoppel is urged. Greencastle v. Black, 5 Ind. 559; Matter of Van Buren, 17 Hun. 527, 79 N.Y. 384; Fersons Appeal, 96 Pa.St. 140; Town v. Perkins, 94 U.S. 267; Langworth v. Dubuque, 13 Ia. 86; Buell v. Ball, 20 Ia. 289; Town v. Stevenson, 69 Mo. 379; State v. Moberly, 74 Mo. 167; Counterman v. Township, 38 Ohio St. 517.

OPINION

CORLISS, C. J.

The owner of abutting property is by this action attacking the validity of an assessment to pay the expenses of paving a street in the City of Fargo. He grounds his assault thereon upon the alleged invalidity of the statute under which the assessment was levied. There is no claim made that on account of irregularities, the tax assessed against his land is illegal. On the contrary, he expressly negatives in his complaint the existence of any defects in the proceedings themselves. It is not contended that the steps taken by the proper authorities were unauthorized by the law. But the broad proposition is laid down by counsel for plaintiff that the statute is void for the reason that it does not limit the total assessment upon property within the special taxing...