McKone v. City of Fargo

138 N.W. 967, 24 N.D. 53, 1912 N.D. LEXIS 6

Opinions

Goss, J.

This action is a direct attack upon a special assessment levied for street paving. The property involved is lot 1 of block 16, and lot 14 of block 9, in Keney’s and Devit’s addition to Eargo. A special assessment of $1,356.98 for said purposes was levied and spread as a tax against each of said lots. Plaintiffs aver that “said levy and special assessment was made without any authority of law, and that in all things pertaining to the construction of said pavement and contracting for the same, and the making and filing of plans and specifications therefor, and the levy of said assessment and the pretended confirmation of the same, there was no compliance with the law.” “That the cost charged against said property for such payment is confiscatory and is more than twice the amount which it adds to the value of said property.” “The plaintiffs aver that under protest they have paid one tenth of the amount assessed against said property, and they ru'e willing and ready to pay such further sum as may be just and equitable, and not in excess of the increased value of said property and the benefits to said property by reason of the construction of such pavement; and they do offer to pay in all 50 per cent of the cost of said pavement, which is in excess of any benefits to said property.” The prayer for relief required defendants to set forth their adverse claims to the property, “that the validity of the same may be adjudged and determined and that said adverse claims may be adjudged void and confiscatory. And that the pavement assessment levied against said property be adjudged void on the owners paying one half of the sum without any interest, penalty, or cost.” The answer detailed proceedings regularly had, including a petition for paving improvements, the granting of the same on a finding of necessity for said paving, preparation by the city engineer of plans, specifications, and estimate' of the cost thereof, and its consideration and approval by the city council; the advertising for bids and the letting of the contract for construction of the paving according to said plans and specifications on file with the city auditor; the completion of said work and total cost thereof; the personal inspection by the city special assessment commission and its determination in writing of the lots subject to assessment tberefor and the benefits thereto, and the proportion based thereon assessable to each tract benefited; in which report and assessment each lot involved herein was reported as subject to assessment for $1,356.98, as based upon benefits of $2,035.47 accruing to each tract because of said paving; the fixing of a day for the review of said assessments and notice thereof to the property owners assessed, which date was February 27, 1909; the confirmation on said hearing had by the city special assessment commission of the assessment list as filed; notice by publication of such action, and that the city council would meet on April 5, 1909, at a place designated, to act further upon said list and hear any objections thereto, and its final confirmation and approval after notice on May 3, 1909; whereupon it was certified by the city auditor to the county auditor, and the assessment as made spread against all property assessed including these lots. That plaintiffs defaulted in appearing at any of said hearings, and made no objection of any kind to said proceedings until the commencement of this action on March 1, 1910, nearly a year after confirmation of the assessment. Defendants further plead that, because this action was not commenced within six months from May 3, 1909, the date of the final approval by the city council of said assessment, this action cannot be maintained. There is no denial of any of the foregoing matters alleged by answer.

On the trial no attack is made on the regularity of proceedings conferring jurisdiction upon the city council to act, and prior to letting of contracts. The plaintiffs assert that the city council lost “jurisdiction to make any assessment for two fundamental reasons, (1) the city council did not cause to be made and filed in the office of the city auditor the plans and specifications of the pavement giving all the details of the work to be done; (2) the second assessment was confiscatory, and was not based on special benefits to the lots.” The above is quoted from appellants’ brief, and is a summary of their contentions on the trial and on this appeal. The case below was tried with the .object in view of setting aside or modifying special assessments because of defects in the plans and specifications upon which the contract was let and under which the work was done, and also because of irregularities thereafter occurring concerning the manner of the levy of tbe assessments, in that the assessments are charged to have been based not on special benefits to the property correctly determined by the assessment commission, but instead, that the assessment commission arbitrarily apportioned the cost of the project between these and many other lots, and from the cost computed and assessed benefits by a method used of adding to the cost one half more than the tax the commission had previously determined the property should bear. In other words, that instead of the tax being determined proportionately from the special benefits to the property, the tax was arbitrarily assessed with reference to cost only. Plaintiffs have offered proof tending to sustain these contentions as to the method of the assessment board in determining special benefits and special assessments supposedly levied thereon as to this property and these assessments involved.

But plaintiffs are met at the threshold of the merits of this case with the established facts that the assessment had been fully made prior to, and confirmed and approved in, May, 1909, and this action was not commenced until March 1, 1910, the date of the summons. The city invokes the provisions of § 2790, Bev. Codes 1905, being § 155 of chap. 62 of the Session Laws of 1905, entitled “An Act for the Organization and Government of Cities and to Provide for the Limitation of Actions to Vacate Special Assessments Heretofore Made.” The particular section of this act containing the statute of limitations here sought to be invoked against the maintenance of this action reads: “Whenever any action or proceeding shall be commenced and maintained before any court to prevent or restrain the collection of any special assessments, or part thereof, made or levied by the officers of any city for any purpose authorized by law, and whenever any action or proceeding shall be commenced and maintained as aforesaid to vacate or set aside any sale of real estate for' such special assessment, or to cancel any tax certificate or deed given under such sale, and such assessment shall be held to be void by reason of noncompliance with the article, the court shall determine the true and just amount which the property attempted to be so assessed by said special assessment should pay,” and enter judgment accordingly to have the force of a lien to be enforced by court action; “provided that no action for either of said purposes shall be maintained unless it is commenced within six months after such special assessment is approved, and, in case of such assessment heretofore approved, within six months after this article takes effect.” Can this action be maintained after the expiration of such six months’ period of limitation? Plaintiffs claim the statute is not applicable, because of its title providing “for the limitation of actions to vacate special assessments heretofore made.” Counsel remark: “Of course, the assessment in question was not ‘heretofore madeit did not precede the passage of the act, and so the limitation does not apply to this action,” but state that “the special assessment was made under an act of 1905,” the act in question. They quote in their brief §§ 142, 143, and 166 thereof, and seek to apply those provisions where they fit their side of the case, but deny the application of § 155, containing the six months’ statute of limitations.

It is to be noticed that this is not a curative statute, but a statute of limitation of actions. It is couched in strong and unmistakable language: “That no action for either of said purposes shall be maintained unless it is commenced within six months after such special assessment is approved.” Appellants do not challenge its constitutionality, so that is not before us. Neither is there any question of statutory construction involved. It is sufficient to set this statute of limitation running when two requisites exist, (1) a special assessment, and (2) its approval. With these existing; a lapse of six months bars the commencement of an action to assail the assessment. It is here conceded, both by the pleadings and the proof, that a special assessment was levied, but it is contended that it is void because of the manner of its levy, as not based upon specific benefits found. The assessment in question .bears all the earmarks of a valid assessment. It purports to be based upon specific benefits. Both specific benefits and tax are stated in itemized amounts upon the tax list and are even specified to the cent with the utmost nicety. The regular statutory steps have all been taken. On the face then of proceedings the utmost of regularity apparently exists. Appellants now seek to go beyond the assessment altogether and impeach it by showing different special benefits than those recited in the levy, or the use of illegal methods in their determination. More than this, they seek to draw the inference from the levy on other lots that the levy made as to the two tracts in question is invalid. In this, as in their whole argument, a levy of special assessments against these two lots by the proper taxing power, and legal on the face of proceedings, is recognized and sought to be attacked after six months from its conceded approval. The assessment at most is but voidable, not void. Having all conditions named in the statute existing to set the statute in motion, we have the exact case before us for which it was intended to be applicable. If the statute does not here apply to bar the maintenance of this action commenced more than six months after approval of these special assessments, it never has application to any case.

Counsel for appellants cannot maintain but that such statutes are valid and enforceable. We quote from 1 Page & Jones on Taxation by Assessment, § 141: “Statutes are frequently found which require that objections to assessments must be made within some short space of time, and that if not so made they shall be deemed to have been waived. Such statutes are usually held to be valid if the time given is sufficient to enable the property owner to present his objections fairly. Thirty-day limitations have been upheld as in cases of assessments for street improvements or for sewers. A three-day limitation has been upheld, even where on account of sickness the property owner was not able to file his remonstrance within the time limit. Such restrictions are held in some jurisdictions to apply to constitutional questions, as well as to failure to comply with statutory requirements, while in other jurisdictions it is held that they cannot apply to constitutional questions.” To the same effect, see Hamilton on the Law of Special Assessments, §§ 580 & 531, from which we quote: “The legal truism that the statute of limitations does not run against a municipal corporation acting in the discharge of the public duty has no application to the commencement of actions at law or suits in equity begun against such corporations for violations of statutory duty in making assessments. The various statutes limiting the commencement of actions are applicable to and include these classes of cases.” “A statute providing that ‘no action to set aside special assessments, or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained,’ being within the jurisdiction of' the legislature, is not such a restriction upon the rights of litigants as calls for interference on the part of the courts, if the prior proceedings are sufficient to confer jurisdiction upon tbe corporate authorities to proceed.” The above quotation from such treatise on special assessments recites the Kansas statute, and for proof of its application according to its terms, see Leavenworth v. Jones, 69 Kan. 857, 77 Pac. 273; Kansas City v. Gibson, 66 Kan. 501, 72 Pac. 222; Wahlgren v. Kansas City, 42 Kan. 243, 21 Pac. 1068; Topeka v. Gage, 44 Kan. 87, 24 Pac. 82. We quote the following from the opinion in the last named case: “The language of this statute is such as to leave little or no room for construction. Its provisions are plain, direct, and positive, and seem sufficiently broad to cut off all defenses not asserted within the period of-time named therein.” “And if the legislature was providing a special statute of limitations different from that of the general statute, we must presume that they intended it to have the effect they said it should have, and cut off all defenses of whatever kind or character. This may be a harsh rule, but that fact does not furnish a reason why we should not construe the statute as it is, though it may furnish a reason why the legislature should modify it.” This is that court’s opinion of a statute granting but one sixth the period of time within which to commence action allowed in ours. Wisconsin has a similar statute with one year as the limitation period. See § 1210h, Wisconsin Revised Statutes of 1898, and as an example of its application, see Hamar v. Leihy, 124 Wis. 265, 102 N. W. 568, an action brought after the one-year period to foreclose a tax certificate, to which a defense of irregularity was sought to be interposed, and which the trial court on the proof made found to be a defense. On appeal the judgment was reversed, the court holding the statute of limitations to bar interposition of such defense, and that “the court below erred in admitting evidence tending to show that no valid assessment had been made, and in entering judgment setting aside and canceling the tax and tax certificate.” See also a similar statute providing a thirty-day period after issuance of bonds for street improvements, within which proceedings must be begun, or bonds issued be conclusive evidence of the regularity of all proceedings prior thereto, construed and enforced in Chase v. Trout, 146 Cal. 350, 80 Pac. 81, regarding which that court says: “The period of thirty days after the date of the warrant, within which the statute permits an owner to prevent the issuance of any bona by filing an affidavit and requesting that no bond be issued, gives a reasonable time to tbe owner within which to make his election whether he will take advantage of the extension of time afforded by the issuance of a bond, or, by requesting that no bond be issued, preserve such rights as he may think he has to defeat the assessment for irregularity in the proceedings. The notices having been given, he is conclusively presumed to have knowledge of his right to so elect. -It should not be forgotten that at the time the assessment becomes due other persons have valuable personal property rights at stake as well as the owner.” “The fact that the conclusive evidence clause of the bond act arbitrarily fixes a period of thirty days after which defects which before may have been fatal are placed beyond inquiry does not make the law unreasonable.”

We believe, therefore, that § 2790 quoted bars plaintiffs from maintaining this action. For this reason it is unnecessary to decide any assignments of error urged by plaintiffs. The judgment of the trial court is affirmed with costs.