Western Realty Co. v. City of Reno

• Decision Date: 12 July 1946
• Docket Number: 3463.
• Citation: 172 P.2d 158,63 Nev. 330
• Parties: WESTERN REALTY CO. v. CITY OF RENO et al.
• Court: Nevada Supreme Court

172 P.2d 158

63 Nev. 330

WESTERN REALTY CO. v. CITY OF RENO et al.

No. 3463.

Supreme Court of Nevada

July 12, 1946

Appeal from District Court, Second District, Washoe County; A. J Maestretti, Judge.

Action by Western Realty Company against the City of Reno and others to enjoin the issuance of improvement district bonds. From a judgment dismissing the complaint, the plaintiff appeals.

Judgment affirmed.

George Lohse, of Reno, for appellant.

Wilson & Skinner, of Reno, for respondents.

HORSEY Justice.

It appears from the record on appeal that the respondent, the City Council of the respondent the City of Reno, Nevada, a municipal corporation, on the 1st day of October, 1945, duly and regularly passed and adopted City Ordinance No. 733 entitled, in part: 'An Ordinance creating and defining the boundaries of a special storm and sanitary sewer and improvement district to be known and designated as 'Westfield Village Improvement District'; declaring the determining of the City Council of the City of Reno to make certain public improvements therein * * *.'

And that said City Council of the City of Reno, Nevada, did, on the 11th day of February, 1946, duly and regularly pass and adopt City Ordinance No. 745, amending said City Ordinance No. 733; and that said City Council of the City of Reno Nevada, did, on the 15th day of April, 1946, duly and regularly pass and adopt City Ordinance No. 752, entitled, in part, 'An Ordinance providing for and directing the issuance by the City of Reno of its negotiable coupon bonds in the amount of $82,992.63 to be called '1945 Westfield Village Improvement District Bonds' bearing interest at a rate not to exceed 2 1/2% per annum for the purpose of providing funds to defray the cost of special improvements for the benefit of lands within that certain special storm and sanitary sewer and improvement district within the City of Reno, designated by City Ordinance No. 733 as 'Westfield Village Improvement District * * *.'

The appellant, Western Realty Co., a Nevada corporation, on April 22, 1946, commenced an action against respondents, the City of Reno, Nevada, et al. In the complaint in said action in paragraph IX thereof, it is alleged:

'That said City Ordinances, Exhibits 'A,' 'B,' and 'C,' are void and invalid in that it is an attempt to authorize, to issue and to sell said municipal bonds in an unlawful manner, without authority of law and in violation of the authority vested in defendants by Section 10.30 of Article XII of that certain Act of the Legislature of the State of Nevada entitled:

"An Act to incorporate the town of Reno, in Washoe County, and defining the boundaries thereof, and to authorize the establishing of a city government therefor, and other matters relating thereto' as amended.'

The Act just above referred to is the Reno Charter Act, of 1903, as amended in 1905 and from time to time thereafter, including the amendatory Act of 1945, Statutes of Nevada 1945, c. 223, pp. 398-440.

In said complaint the plaintiff, Western Realty Co., a Nevada corporation, prays that said City Ordinances, designated in said complaint as Exhibit 'A' (which is said City Ordinance No. 733), Exhibit 'B' (said City Ordinance No. 745), and Exhibit 'C' (said City Ordinance No. 752), be declared invalid, and the defendants (respondents herein) be enjoined and restrained from issuing and selling said municipal bonds, authorized by said ordinances, and for general relief.

The respondents demurred to said complaint upon the ground that same did not state facts sufficient to constitute a cause of action, and on the 17th day of May, 1946, the Second Judicial District Court of the State of Nevada, in and for the County of Mashoe, Department 2, the Hon. A. J. Maestretti, district judge, presiding, duly made an order sustaining said demurrer, but with leave to plaintiff (appellant herein) to amend its complaint on or before the 20th day of May, 1946. A copy of the court's said order was duly served upon plaintiff's attorneys, on the said 17th day of May, 1946. The plaintiff having failed to amend its complaint within the time allowed by said court, or at all, the said district court, on the 21st day of May, 1946, rendered its judgment that the said complaint be dismissed, and that plaintiff and defendants, respectively, pay their own costs of suit.

From that judgment of dismissal, and the whole thereof, the plaintiff (appellant herein) has appealed.

The pertinent provisions of the charter of the City of Reno, Statutes of Nevada 1903, p. 184, c. 52, as amended from time to time, and as amended at the 42nd session of the Legislature, Statutes of Nevada 1945, pp. 398-440, are on pages 410 and 419 of the latter volume, and are as follows:

'Sec. 23. Article XII of the above-entitled act is hereby amended by adding thereto a new section which shall immediately follow section 10.26 and which shall be known as section 10.30 and which shall read as follows:

'Section 10.30. Bonds for the purpose of paying the cost of improvements for which special assessments are levied may be issued by the city in accordance with 'An Act to authorize municipalities to issue bonds for the purpose of paying the cost of municipal improvements for which special assessments are levied,' approved March 13, 1909, as the same has been or may hereafter be amended from time to time; provided, however, that such improvement bonds may be issued for any purpose for which a special assessment can be levied herein, and the purposes for which such bonds may be issued shall not be limited to the purposes for which special assessments can be levied under the terms of said act. Such bonds shall be payable out of the fund created by special assessment, but if such fund be insufficient to pay said bonds as they become due, the deficiency shall be paid out of the general fund of the city, and every improvement bond created by the city shall contain such a provision. In the event of any deficiency in the general fund it shall be mandatory for the city council to levy taxes in accordance with the provisions of this act, and particularly article XII, section 10.5 hereof, in order to provide funds to immediately pay such bonds. No election shall be necessary to issue such improvement bonds irrespective of the fact that said bonds are also payable out of the general fund of the city.

* * *

* * *

'Sec. 37c. Article XII of the above-entitled act is hereby amended by adding thereto a new section to immediately follow section 10.100 which shall be known as section 10.105 and shall read as follows:

'Sec. 10.105. All special ssessments shall from the date of recording thereof, constitute liens upon the respective lots or parcels of land and improvements assessed, and shall be charged against the persons and properties until paid. Upon the confirmation and recording of any assessment, the amount thereof may be divided into not more than twenty (20) installments, one of which shall be collected each year or the entire amount thereof shall be collected at once, in the manner hereinafter prescribed, with annual interest thereon at a rate not exceeding seven percent from the time due.'

It will be noted that in Section 10.30 of the foregoing amendatory act of 1945, the Municipal Improvement Bond Act of 1909 is referred to expressly, and provision thereby made for the issuance of bonds in accordance therewith for the purpose of paying the cost of improvements for which special assessments are levied. To the provision referring to said Municipal Improvement Bond Act of 1909, and, in a certain sense, adopting it as the basis of authorized bond issues, is the following proviso:

'provided, however, that such improvement bonds may be issued for any purpose for which a special assessment can be levied herein, and the purpose for which said bonds may be issued shall not be limited to the purposes for which special assessments can be levied under the terms of said act.' (Italics ours.)

It will be further noted that the provision in Section 10.105, on page 419 of the Statutes of 1945, to the effect that the amount of the special assessment to create the fund from which the bonds shall be payable, 'may be divided into not more than twenty (20) installments, one of which shall be collected each year * * *,' is in conflict with the certain provision in said Municipal Improvement Bond Act of 1909, Nevada Compiled Laws 1929, Vol. I, Section 1382, which empowers or authorizes any incorporated town or city in the State of Nevada, whether incorporated under a general or special act, to issue bonds of such town or city 'to be called 'Street Improvement Bonds,' payable in annual periods of one to not more than ten years from date * * *,' and in conflict with the certain further provision of said Municipal Improvement Bond Act, in Section 1387 N.C.L.1929, Vol. 1, to the effect that 'such bonds shall be payable in any period not exceeding ten days * * *.'

The pertinent provisions of said Municipal Improvement Bond Act, which is entitled 'An Act to authorize municipalities to issue bonds for the purpose of paying the cost of municipal improvements for which special assessments are levied,' approved March 13, 1909, Nevada Compiled Laws 1929, Vol. 1, Sections 1382-1389, are in Sections 1382 and 1387, in said Vol. 1, N.C.L., and are as follows:

'Section 1382. May Issue Bonds for Street Improvements. § 1. Any incorporated town or city in the State of Nevada, whether incorporated under a general or special act, may, by ordinance, cause to be issued bonds of the town or city to be called '* * * Street Improvement Bonds,' payable in annual periods of one to not more than ten years from date and to bear interest payable annually, not exceeding the rate...