Williams v. City of Caldwell

• Decision Date: 10 March 1911
• Citation: 19 Idaho 514,114 P. 519
• Parties: GEORGE W. WILLIAMS, Appellant, v. CITY OF CALDWELL, Respondent
• Court: Idaho Supreme Court

114 P. 519

19 Idaho 514

GEORGE W. WILLIAMS, Appellant, v. CITY OF CALDWELL, Respondent

Supreme Court of Idaho

March 10, 1911

SEWERAGE DISTRICT BONDS-ORDINANCE OF INTENTION-DESCRIPTION OF WORKS-PLANS AND SPECIFICATIONS-ASSESSMENT OF STREETS-AFFIDAVIT OF PUBLICATION-SEWER COMMITTEE-AMOUNT OF BOND ISSUE.

(Syllabus by the court.)

1. Where a city ordinance declaring the intention of the council to organize a sewer district and construct a sewer system states that "the character of the proposed lateral system shall be that of gravity and according to the plans and specifications now on file in the office of the city engineer," it is a sufficient compliance with the terms of subd. 3 of sec. 2353 of the Rev. Codes, which requires that the ordinance of intention shall state the "general character of the proposed sewerage system and sewerage disposal works." In such case, the reference to the plans and specifications is sufficient to give notice to all parties interested of the general character of the proposed works.

2. A city ordinance declaring the intention of the council to organize a sewer district and to construct a sewerage system and issue bonds therefor, which states "that said sewerage district shall not include for assessment property occupied by the cross-streets and alleys in said district," is defective for a failure to comply with subd. 3 of sec. 2353, requiring such ordinances to state that the sewer district "shall not include for assessment property occupied by streets, cross-streets and alleys in said district," but such error or defect is not jurisdictional and will not oust the council of jurisdiction to proceed further in accordance with the provisions of such ordinance. In such case, the property owners and persons interested have notice by the statute itself that "streets, cross-streets and alleys" in such districts cannot be assessed.

3. Where an ordinance declaring the intention of the city council to organize a sewer district and construct a sewerage system is published in conformity with the requirements of subd. 3 of sec. 2353, and the publisher fails to file his affidavit of publication on or before the time fixed for the hearing of protests, such error or omission does not go to the jurisdiction of the council to hear protests or to further act, and does not oust or defeat the jurisdiction of the council to proceed further in accordance with the provisions of the statute.

4. Where an affidavit of publication is required to be made and filed as proof that the publication has actually been made the actual existence of the fact required to be shown by the affidavit is the thing which confers the jurisdiction, and the affidavit is merely the proof that the jurisdictional facts do exist, and a failure to make the proof will not obviate the facts, and such proof may be subsequently made showing that the jurisdictional facts did exist at the time the action was taken.

5. A sewer committee appointed under the authority of sec. 2343 of the Rev. Codes should not comprise any of the members of the city council; but the fact that members of the council have been appointed and have acted will not annul or defeat the action which has been taken by such committee, and will not defeat the right and power of the council to issue bonds in payment for a sewerage system that has been constructed by and under the direction of such committee. Even though the members of the committee did not possess the requisite statutory qualifications to act on such committee, they would at least constitute a de facto committee and their acts could not be collaterally attacked.

6 Subd. 7 of sec. 2353, Rev. Codes, does not prescribe any particular form for an order which must be made by a city council. Any action of the council which discloses their purpose to approve any given act or adopt and pursue a given course is sufficient without reference to form.

7. Under the provisions of subd. 11 of sec. 2353, Rev. Codes, a city council cannot issue bonds for the construction of a sewerage system in excess of the "contract price and expense of such work or improvement."

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action by plaintiff to enjoin the issuance of bonds. Judgment for the defendant and the plaintiff appealed. Affirmed.

Judgment of the lower court affirmed. Costs awarded in favor of respondent.

Perky &amp MacLane, for Appellant.

The power to make improvements such as this and to assess the cost thereof against abutting property is a special and limited one, and "can only be exercised in the mode pointed out by the act which grants it." (Hawthorne v. City of Portland, 13 Ore. 271, 10 P. 342.)

The statute requires the ordinance of intention to describe the general character of the sewer system to be constructed. The ordinance in this case simply states that the "character of the proposed lateral sewer system shall be that of gravity and according to the plans and specifications now in the office of the city engineer." Such a requirement is common in statutes of this kind, and it is generally held that failure to follow it will invalidate the proceedings. (28 Cyc. 978, 1004; Schwiesau v. Mahon, 128 Cal 114, 60 P. 683; Williamson v. Joyce, 137 Cal. 107, 69 P. 854.)

While the resolution or ordinance may incorporate plans and specifications by reference (see Haughawant v. Raymond, 148 Cal. 311, 83 P. 53), yet the ordinance in this case does not do this, but simply says that the sewer is to be according to plans and specifications elsewhere on file. This is not sufficient, as such plans are no part of the records of the body having jurisdiction. (Chicago Union T. Co. v. Chicago, 209 Ill. 444, 70 N.E. 659.)

The statute requires the ordinance of intention to be published in the official newspaper, and that "an affidavit of such publication shall be filed with the clerk on or before the time fixed for hearing of protest." This requirement is definite, mandatory and material, and was utterly ignored in this case.

"In these proceedings all of the provisions of the statute must be strictly followed or jurisdiction fails." (city of Owosso v. Richfield, 80 Mich. 328, 45 N.W. 129; State v. St. Louis, 1 Mo.App. 503.)

What we really have here is an assessment made by the sewer and street committees, approved in a most perfunctory manner by the council, but not made a part of the council records in any manner. There was no finding by the council on the jurisdictional fact, viz.: The notice and publication. The jurisdictional facts should be found and declared to appear. They should be made of record, and not left to presumption. (Johnson v. Eureka Co., 12 Nev. 28; Gorman v. County Commrs., 1 Idaho 553; White v. Stevens, 67 Mich. 33, 34 N.W. 255; Smith v. Omaha, 49 Neb. 883, 69 N.W. 402.)

Rice, Thompson & Buckner and Smith & Scatterday, Amici Curiae.

From the records of the council, we find that there were no plans and specifications on file anywhere at the time the protests were heard on June 13, 1910. From the record as it appears before us, it is fair to presume that there were no plans and specifications in existence at the time the resolution was passed nor at the time set for hearing protests. "The proceedings being in invitum, we are not permitted to hold to be certain that which is uncertain." (Bay Rock Co. v. Bell, 133 Cal. 150, 65 P. 299; Labs v. Cooper, 107 Cal. 656, 40 P. 1042.)

The filing of this affidavit on or before the time fixed for the hearing of protests is jurisdictional, and the failure to so file it renders the assessment void. (Wilson v. City of Seattle, 2 Wash. 543, 27 P. 474; McChesney v. people, 145 Ill. 614, 34 N.E. 431; Kearney v. City of Chicago, 163 Ill. 293, 45 N.E. 224; Estate of Cobb, 49 Cal. 599, 604.)

Every requisite having the semblance of benefit to the owner must be complied with, and where the form of a statutory proceeding is prescribed, its observance becomes essential to the validity of the proceedings. (Shipman v. Forbes, 97 Cal. 572, 32 P. 599; Smith v. Davis, 30 Cal. 537; Taylor v. Donner, 31 Cal. 481; Hewes v. Reis, 40 Cal. 255; Grimm v. O'Connell, 54 Cal. 522; Chase v. City Treas. of Los Angeles, 122 Cal. 546, 55 P. 414; City of Stockton v. Whitmore, 50 Cal. 554; Fay v. Reed, 128 Cal. 357, 60 P. 927.)

W. A. Stone and John J. Plowhead, for Respondent.

"A description is sufficient if the character of the improvement can be ascertained either from the ordinance itself or by reference to some other ordinance or map." (Abbott, Mun. Corp., pp. 874, 875 (note); Brewster v. City of Peru, 180 Ill. 124, 54 N.E. 233; Cunningham v. City of Peoria, 157 Ill. 499, 41 N.E. 1014; Page & Jones Tax. by Assess., sec. 490, 821; Richardson v. Mehler, 111 Ky. 408, 63 S.W. 957; Harney v. Heller, 47 Cal. 15; Emery v. San Francisco Gas Co., 28 Cal. 376.)

"A reference to plans as those on file in the office of the city engineer is sufficient." (Chase v. Trout, 146 Cal. 350, 80 P. 81; Woollacott v. Meekin, 151 Cal. 701, 91 P. 612; Clinton v. City of Portland, 26 Ore. 410, 38 P. 407.)

"If the resolution specifically refers to certain plans on file, they become a part of the resolution for the purpose of showing the nature of the improvement." (City of Greensburg v. Zoller, 28 Ind.App. 126, 60 N.E. 1007.)

The filing of the affidavit of the publisher "on or before" the time for hearing protests is not jurisdictional. (Canyon County v. Toole, 8 Idaho 501, 69 P. 320; Gilbert v. Canyon County, 14 Idaho 437, 94 P. 1029.)

When powers are conferred by charter or statute and these things have been done by which jurisdiction of the subject is acquired, all presumptions are in favor of the regularity of subsequent proceedings in promoting the...