Shapard v. City of Missoula
| Decision Date | 08 June 1914 |
| Docket Number | 3479. |
| Citation | 141 P. 544,49 Mont. 269 |
| Parties | SHAPARD ET AL. v. CITY OF MISSOULA ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; John E. Patterson Judge.
Action by Harry Shapard and another against the City of Missoula and another. Judgment for plaintiffs, and defendants appeal. Affirmed.
Frank Woody, of Missoula, and Jas. M. Head, of Boston, Mass., for appellants.
Frank A. Roberts, of Missoula, for respondents.
On April 12, 1913, the mayor and city council of the city of Missoula passed a resolution creating special inprovement district No. 23 for the improvement of that part of Pattee street extending from the north line of Second street to the south line of the right of way of the Northern Pacific Railway Company, by grading and paving the roadway and constructing necessary curbs, sidewalks, drains, etc. The resolution designates the boundaries of the proposed district and describes the general character of the improvement. It excepts from its operation one lot and a portion of another belonging to the United States, and provides that the expense of the improvement in front of this property shall be paid out of the general fund of the city. It further provides that the cost of paving that portion of the roadway occupied by the tracks of the Missoula Street Railway, and to the width of one foot on either side thereof, shall be paved by the railway company. The entire cost to lot owners, after making the deductions referred to above, is estimated to be $63,500 and is to be assessed to the lots in the district in proportion to their area; corner lots, however, to be assessed in double the amount of inside lots. The amount assessed against each lot is to be paid in 20 equal yearly installments, with interest at 6 per cent. Notice of the passage of the resolution was published for five days in the Daily Missoulian, a newspaper published in the city, and a copy thereof was mailed to all persons owning lots in the district. The notice described in general terms the character of the improvement, its estimated cost, and designated a time at which the council would hear protests. Thereafter protests filed by certain lot owners with the city clerk within 15 days after the first publication of notice, having been overruled as insufficient, an ordinance was passed creating a fund to meet the expense of the improvement, setting aside all moneys collected yearly from the assessments and becoming due from the city to pay the amount allotted to it. All warrants issued in payment for the work, upon its completion with interest, are to be paid out of this fund. No resolution was thereafter passed creating the district or ordering the improvement to be made. In the meantime, plans and specifications having been prepared by the city engineer they were approved by the council and the clerk was directed to publish notice inviting sealed proposals from contractors to install the improvement. This was done. Proposals were submitted by several contractors, among them defendant McGuire. When they were opened, that of McGuire was deemed to be the lowest and best bid. Accordingly, the contract was let to him. Thereupon the plaintiffs, the owners of lots subject to assessment, brought this action to enjoin the city and McGuire from executing or carrying out the contract. Upon the filing of the complaint the court issued an injunction pendente lite. After a hearing upon the issues made by the pleadings, a decree was entered making the injunction perpetual and awarding plaintiffs their costs. Defendants have appealed.
The plaintiffs assail the validity of the proceedings of the mayor and council in many particulars, and counsel on both sides have filed elaborate briefs submitting many questions for decision. Since, it is apparent, however, from the foregoing statement that, in view of the provisions of the statute dealing with the subject of special improvement districts, the proceedings were void from their inception, it will be necessary to discuss but two questions:
1. Has the council of a city power to create special improvement districts for the purpose of improving the streets therein and to charge the abutting property by special assessments for the cost of the improvement? This query is answered by reference to subdivisions 6 and 80 of section 3259 of the Revised Codes, which have been a part of our statute law for many years. The former grants to cities and towns the power "to lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, parks and public grounds, and vacate the same." The latter authorizes them:
"To create special improvement districts, designating the same by number, to extend the time for payment of assessments levied upon such districts for the improvements thereon for a period not exceeding three years; to make such assessments payable in installments and to pay all expenses of whatever character incurred in making such improvements, with special improvement warrants, which warrants shall bear interest at a rate not to exceed six per centum per annum."
By subsequent legislation subdivision 80 was amended so that the special assessments might be paid in eight annual installments, with interest on the deferred payments (Laws 1907, c. 75; Laws 1909, c. 127). By the act of 1913 (Laws 1913, c. 89), under which the proceeding in question here was had, the limit was further extended so that the assessments may now be made payable in equal annual installments not exceeding 20 in number, with interest on deferred payments. In none of these provisions is specific reference made to subdivision 80, supra; but the result of them has been an amendment of it by necessary implication.
It is argued by counsel for plaintiffs that these provisions were by implication repealed by the act of 1913, supra. The purpose of this act was to repeal the several sections of the Code providing the mode of creating special improvement districts, which were in many respects inharmonious and incongruous, and to substitute in place of them others free from these defects and providing a simpler and more practicable procedure for improving and beautifying city streets. It is true that section 2 of this act purports to grant power to effect many improvements none of which are specifically mentioned in section 3259, supra, wherein the general legislative powers of cities and towns are enumerated, and that by a general clause in section 35 it repeals all acts or parts of acts inconsistent with any of its provisions; yet, as it does not in any way limit or circumscribe these general provisions, it may not be said to be in any sense inconsistent with them, except in so far as subdivision 80, supra, has been affected by it and the other legislation referred to as to the time allowed within which to pay assessments. On the contrary, the latter act is to be construed as a specific enumeration of the subjects included within the purview of the general grant to which the procedure prescribed by it applies. As above stated, the purpose of the act was to prescribe the procedure by which special improvement districts may be created, not to grant powers. It cannot be maintained that, in an attempt to do this, the Legislature by implication took away the power which it was providing the means to enforce. The words "and create," found in the third line of section 2 which destroy the sense of it, evidently crept into it by inadvertence during the course of its enactment. This is put beyond question when this section is compared with section 2 of chapter 397 of the statutes and amendments to the Codes of California, enacted in 1911, of which our own statute is in many respects a literal copy. While the general rule of construction requires every word found in a statute to be given force and effect, nevertheless, when words or expressions are found therein to which no meaning can be assigned consistent with the legislative intent as collected from the entire act, such words and expressions are to be treated as surplusage and wholly disregarded. State ex rel. Kehoe v. Commissioners of Silver Bow County, 49 Mont. 25, 139 P. 1002; Paxton & Hershey Irr. Con. Co. v. Farmers' & Merchants' Irr. Co., 45 Neb. 884, 64 N.W. 343, 29 L. R. A. 853, 50 Am. St. Rep. 585; 36 Cyc. 1127. Eliminating these words, and reading the section in the light of the other provisions of the act, there is...
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