School Dist. No. 1, Lewis and Clark County v. City of Helena

• Decision Date: 19 April 1930
• Docket Number: 6641.
• Citation: 287 P. 164,87 Mont. 300
• Parties: SCHOOL DIST. NO. 1, LEWIS AND CLARK COUNTY, v. CITY OF HELENA.
• Court: Montana Supreme Court

287 P. 164

87 Mont. 300

SCHOOL DIST. NO. 1, LEWIS AND CLARK COUNTY, v. CITY OF HELENA.

No. 6641.

Supreme Court of Montana

April 19, 1930

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Action by School District No. 1, Lewis and Clark County, against the City of Helena, a municipal corporation. Judgment for defendant, and plaintiff appeals.

Remanded with direction to modify judgment, and as modified affirmed.

L. A Foot, Atty. Gen., and C. N. Davidson, Asst. Atty. Gen., for appellant.

John G. Brown and Claude L. Meredith, both of Helena, for respondent.

ANGSTMAN J.

Plaintiff has appealed from a judgment entered in favor of defendant. The controversy was submitted to the court without pleadings upon agreed facts, pursuant to the provisions of section 9872 et seq., Revised Codes 1921.

The facts show that plaintiff is a regularly created school district owning property in the city of Helena; that the city council created several special improvement districts in which property of plaintiff was included; the question of the liability of the school district for special assessments for certain improvements and for interest and penalty upon delinquency gave rise to the controversy. Four questions were submitted for determination, all of which were answered in the affirmative by the trial court.

The first question was: "Can the defendant tax school district No. 1 for the assessments accrued on account of special improvements on streets or in sewers adjacent to property owned by said school district within the said city?" Affirmative answer to this question was proper by reason of the decision in the case of City of Kalispell v. School District No. 5, 45 Mont. 221, 122 P. 742, Ann. Cas. 1913D, 1101.

The second question presented was: "In the event of the school district's failure to pay special improvement district assessments, can the city charge penalty, advertising costs and interests?"

Assessments for special improvements are made subject to the same penalties and interest in case of nonpayment as are provided by law for other delinquent taxes. Section 1(d)), c. 78, Laws of 1929, and section 1(b), c. 79, Laws of 1929. This legislation came along after the decision in the case of City of Kalispell v. School District, supra. No distinction was made by the Legislature between assessments against property of a school district for special improvements, and privately owned property.

Since the property of a public corporation is subject to assessment for special improvements the same as private property (City of Kalispell v. School District, supra; Ricker v. City of Helena, 68 Mont. 350, 218 P. 1049), it follows that, in the absence of legislative declaration to the contrary, the assessments against the school property are liable for penalties and interest in case of delinquency, the same as the assessments against the property of any private owner. There is no more valid objection to the imposition of a penalty and interest in case of delinquency than there is to the imposition of the original assessment. When penalties and interest attach they become a part of the original obligation. Sanderson v. Bateman, 78 Mont. 235, 253 P. 1100. If this result works a hardship on the school district, the answer is that it was brought about by its own act in not making provision for the payment of the assessments when due. The penalty and interest may be avoided by the prompt payment of the assessments.

It is contended by plaintiff that the imposition of a penalty made payable by a school district is in violation of the provisions of section 3, art. 11, of the Montana Constitution, which declares that the "public school fund shall forever remain inviolate." But the school fund there referred to is the permanent school fund made up as provided in section 2, art. 11, of the Constitution, and in section 1201, Revised Codes 1921.

Section 6 of article 11 of the Constitution provides: "It shall be the duty of the legislative assembly to provide by taxation, or otherwise, sufficient means, in connection with the amount received from the general school fund, to maintain a public, free common school in each organized district in the state, for at least three months in each year." and section 5, art. 12, of the Constitution, also authorizes taxes for school purposes. Pursuant to the authorization by these constitutional provisions, the Legislature has made provision for the support of common schools by annual tax levies (section 1202, Rev. Codes 1921), and has authorized special levies "to furnish such appliances and apparatus as may be needed" (section 1203, Id.), and has otherwise provided means of raising money for the support of common schools. The guaranty contained in section 3 of article 11 has nothing to do with school funds raised by tax levies. The penalties for nonpayment of assessments for special improvements are not attempted to be made payable from the permanent school fund, and obviously could not be. By section 1008, Id., formerly section 881, Revised Codes 1907, the board of trustees has authority to meet assessments of special improvement districts (City of Kalispell v. School District, supra), and moneys expended therefor are for school purposes because of special benefits conferred upon school property. Advertising costs are also collectible by reason of section 5247 and section 5214, Revised Codes 1921, to which section 5251, as amended by chapter 78 of the Laws of 1929, makes reference. State ex rel. City of Wolf Point v. McFarlan, 78 Mont. 156, 252 P. 805.

The third question for consideration is: "Can the defendant city legally levy light and maintenance against the plaintiff school district in localities where the said school district owns property in said special improvement district areas?"

By express legislative authority the city council is empowered to create special improvement districts for the purpose of lighting the streets and to require not more than three-fourths and not less than one-fourth of the cost of installing and maintaining the lighting system to be paid by the owners of the abutting property. Section 5259, Rev. Codes 1921, as amended by chapter 143, Laws of 1927. Included as a part of the cost is the "annual cost of supplying electrical current for and maintaining the lights." Section 5260, Id., as amended by chapter 143, Laws of 1927. By the command of section 5259, as amended, only such property may be included in the district as is adjacent to the street or highway proposed to be lighted or which may be declared by the city council to be benefited by the improvement to be made. Section 5261, as amended by chapter 143, Laws of 1927, requires notice to be given of the passage of a resolution of intention to create the district, and authorizes any property owner liable to be assessed to make protest against the extent or creation of the district. The owners of a majority of the property protesting may prevent the proceeding. In determining the sufficiency of the protests, "property owned by a county, city or town shall be considered the same as other property in the district." The city council shall hear and pass upon all protests, "and its decision shall be final and conclusive."

Section 5265, as amended by chapter 143 of the Laws of 1927, makes it the duty of the city council to assess all of the property embraced within the district with the cost of the improvement, excluding only lands belonging to the United States, or mandatory of the government, as provided by section 5271, as amended by chapter 143, Laws of 1927.

Thus the statutes relating to the creation of special improvement districts for installing a lighting system are identical with those relating to the creation of improvement districts for other improvements in so far as the sufficiency of protests is concerned and in excluding property only that is owned by the United States or mandatory of the government. See section 5229, as amended by chapter 135, Laws of 1923, and section 5238, as amended by chapter 163, Laws of 1925.

No contention is here made, nor could it well be, that the cost of installing the lighting system is not properly chargeable to the abutting property, including that of the school district. By reason of the decision in the case of City of Kalispell v. School District, supra, the school property stands on the same footing as privately owned property, and it has generally been held that private property may be subjected to assessments for installing a lighting system. City of Springfield v. Springfield, etc., Co., 296 Ill. 17, 129 N.E. 580; Wicks v. Salt Lake City, 60 Utah, 265, 208 P. 538; Fisher v. City of Astoria, 126 Or. 268, 269 P. 853, 60 A. L. R. 260; Park v. Pacific Fire Extinguisher Co., 37 Cal.App. 112, 173 P. 615; Brydon v. City of Hermosa Beach, 93 Cal.App. 615, 270 P. 255; Irish v. Hahn (Cal. Sup.) 281 P. 385; Bragdon v. City of Muskogee, 133 Okl. 224, 271 P. 1006; Bank of Commerce v. Huddleston, 172 Ark. 999, 291 S.W. 422, 50 A. L. R. 1202.

There are, of course, limitations upon the kind of fixtures, the cost of which may be charged against the abutting property owners. Thus it has been held that the cost of a power house and generator engine for the purpose of generating electricity may not be imposed upon the owners of property abutting on the street where light posts and lamps were installed. Ewart v. Western Springs, 180 Ill. 318 54 N.E. 478. And a statute authorizing the city officials to supply a street with lamp posts at the expense of the owners of property benefited has been held not to authorize the assessment of abutting property with the cost of...