Whittaker v. City of Deadwood

• Decision Date: 04 September 1909
• Citation: 23 S.D. 540,122 N.W. 590
• Parties: THOMAS WHITTAKER et al., Plaintiffs and appellants, v. CITY OF DEADWOOD et al., Defendants and respondents.
• Court: South Dakota Supreme Court

23 S.D. 540, 122 N.W. 590 (1909)

THOMAS WHITTAKER et al., Plaintiffs and appellants v CITY OF DEADWOOD et al., Defendants and respondents South Dakota Supreme Court Appeal from Circuit Court, Lawrence County, SD Hon. William G. Rice, Judge Reversed Samuel C. Polley Attorneys for appellants. Norman T. Mason Attorneys for respondent. Opinion filed Sept. 4, 1909.

McCOY, J.

This action involves the validity of certain special assessments made for local improvements in paving certain streets in the city of Deadwood. The plaintiffs, protesting property owners affected by such assessments, brought this action in the circuit court of Lawrence county for the purpose of having set aside and declared unlawful the said assessments, and to permanently enjoin the city treasurer from collecting the same. The defendants answered, and a trial was had before the circuit court without a jury, resulting in findings and judgment in favor of the defendants. The plaintiffs, as appellants, bring the cause to this court by appeal, challenging the legality of the findings and judgment of the trial court.

It is contended by the appellants that, after the city council of the city of Deadwood had passed resolutions declaring such public improvement necessary, more than a majority of the property owners affected by such special assessment filed with the city auditor written protests against such improvement. It appears from the record that the said public improvement comprises a total frontage of 7,475 feet and that within the time prescribed by section 1303, Rev. Pol. Code, owners of 3,374 feet of the property fronting on the portions of said streets intended to be paved filed their written protests against the said improvement. The plaintiffs further contend that 774 feet of the amount of said frontage is public property not liable for such special assessment, and should not be counted in estimating a majority of the ownership of the property affected, and that, after deducting the said 774 feet frontage, the protesting plaintiffs constituted a majority of the property owners affected by such special assessment, and that by reason thereof the defendant, its city council and offrcers, had no authority or jurisdiction to proceed with or complete said special assessment. In this contention we are of the opinion that the plaintiffs are in error. It appears from the record that, of the said 774 feet claimed to be exempt from said especial assessment, 225 feet thereof belongs to the United States, and that the remaining 549 feet belongs to the city of Deadwood, the school district of Deadwood, and Lawrence county; and, while we are of the opinion that the 225 feet owned by the United States government is exempt from said special assessment, we are also of the opinion that the property fronting on such pavement owned by Lawrence county, the school district of Deadwood, and the city of Deadwood is not exempt. A special assessment for a local improvement by a municipal corporation against the property of the county or municipality is not within the meaning of section 5, art. I 1, State Const., providing that the property of the state, county, and municipal corporations, both real and personal, shall be exempt from taxation. It has been held by this court (Winona & St. P. Ry. Co. v. Watertown, 1 S.D. 46, 44 N.W. 1072) that special assessment for local street improvement is not taxation. It has been held in many other jurisdictions under similar provisions that special assessment for local improvement is not taxation, and that such special assessment is not in conflict with a Constitution or statute exempting such property from taxation. McLean County v. Bloomington, 106 Ill. 209; Adams Co. v. Quincy, 130 Ill. 566, 22 N.E. 624, 6 LRA 155, and note; Society v. Mayor, 116 Mass. 181; Sioux City v. School Dist., 55 Iowa 150, 7 N.W. 488; Edwards & Co. v. Jasper Co., 117 Iowa, 365, 80 N.W. 1006, 94 AmStRep 301; Washburn & Co. v. Minnesota, 73 Minn. 343, 76 N.W. 204; New Orleans v. Warner, 175 U. S. 140, 20 Sup. Ct. 44, 44 L.Ed. 96; Yates v. Milwaukee, 92 Wis. 352, 66 N.W. 248. In McLean County v. Bloomington, supra, it is held that the municipality was authorized to make special assessment for local improvements, without restriction to the ownership of the property to be assessed. The power conferred upon cities to make special assessments under section 1299, Rev. Pol. Code, is not restricted as to the ownership of the property against which the levy may be made.

It is further contended by the appellants that, when the resolution to declare the said public improvement necessary was before the city council, no yea and nay vote was taken upon the passage of said resolution, as required by section 1209, Rev. Pol. Code; but in this contention we are of the opinion that the appellants are in error. It appears from the record that the city auditor made the following entry in the minutes of the proceedings relative to the passage of said resolution: “Roll was called on the above resolution, with the following result: Members voting in favor of said resolution: Messrs. Fargo, Croghan, Benner, Moffitt, Schlichting, Seim, Treber, and Hogarth. The, entire council being present and voting, the resolution was declared passed.” It was held in the case of Milbank v. Surety Co., 21 S.D. 261, 111 N.W. 561, that a resolution with the same record thereof as in the case at bar was in substantial compliance with section 1209, Rev. Pol. Code. It appears from the record that the city of Deadwood has eight members of the council. It appears that eight members voted in favor of this resolution. That is equivalent to stating that eight members voted yea.

Plaintiffs attack the “front-foot” rule for computing the amount of the special assessment against each parcel of land as unequal and u,njust. The “front-foot” rule is estblished by the statute of this state (Rev. Pol. Code, § 1304), and the following of any other rule of computation would be invalid. Bluffton v. Miller, 33 Ind. App. 521, 70 N.E. 989. The constitutionality of the “front-foot” rule has many times been assailed in other jurisdictions, and the great weight of authority seems to be in favor of its validity. 28 Cyc. 1157. The identical statute exists in North Dakota, and was assailed in Rolph v. Fargo, 7 ND 640, 76 N.W. 242, 42 LRA 646; and again in Webster v. Fargo, 9 ND 208; 82 NW 732, 56 LRA 156, and by able and exhaustive opinions held constitutional.

Appellants further contend that the special assessment in question is void, because more than one street, and streets of different widths, were included in the resolution and in the same paving district. In this contention we are of the opinion that appellants are right. This species of special taxation, under whatever rule, is fraught with such opportunities of confiscation and inequality that justice to property owners demands that statutes on this subject should receive a strict construction, and that every statutory requirement should be strictly complied with, and construed to the end that inequalities and confiscations should be reduced to the minimum. We are of the opinion that under section 1303, Rev. Pol. Code, no authority or power is granted to include more than one street in a single pavement improvement or district. The language of the statute is: “Whenever a city council shall deem it necessary to pave … or otherwise improve any street, alley, or highway … within the city limits, for which a special assessment is to the levied, the...