Wood v. City of Hurley

136 N.W. 107, 29 S.D. 269, 1912 S.D. LEXIS 164

• Court: South Dakota Supreme Court
• Decided: May 7, 1912
• Status: Published

Opinion

CORSON, J.

This is an appeal by the plaintiff from a judgment entered in favor of the defendant, and from the order denying a new trial. The action was instituted by the plaintiff to quiet title to a certain tract of land in the city of Hurley described by metes and bounds and known as outlot 18, except the north 175 feet and except a strip ten feet in width and extending 525.1 feet along the street; the plaintiff alleging in his complaint, in substance, that he is the owner and in the possession of said outlot No. 18, excepting portions above described, and that the defendant, a city of the third class, claimed an interest adverse to the title of the'plaintiff to said premises; and the plaintiff further alleged that the said claim of the said defendant was made under and by virtue of a pretended sidewalk assessment spread upon the records of the county auditor for the sum of $319.16, which assessment so levied against said property and spread upon the records of the county auditor was illegal and void. The defendant in its answer sets out quite fully the proceedings resulting in the assessment of the said property of the plaintiff, and alleges that said assessment of the plaintiff’s outlot No. 18 constituted a valid lien upon the whole of the same, except the 175 feet on the north end thereof.

[1] The case was tried to the court without a jury, and the finding's of fact by the court will be hereafter more fully referred to. It is disclosed by the record that certain proceedings of the •city council of the city of Hurley ordering the construction o:f sidewalks on the east side of outlot 18, except the north 175 feet thereof, were commenced on the 7th day of September, 1909, and that a purported conveyance was made by the plaintiff to one O’Connell of a strip of land adjoining said street 10 feet in width and extending along said street 525 feet, bearing date of October 6, 1909, acknowledged the same day, and recorded October 8th of the same year.

It is contended by the plaintiff that the defendant could acquire no lien upon the portion of outlot 18 claimed by plaintiff, for the reason that there intervened between said outlot owned by the plaintiff and the said street, the strip of land above mentioned. The court in its findings found that said alleged transfer above referred to was made for the purpose of avoiding the payment of the sidewalk tax, and concludes that said transfer was “void and of no effect so far as it relates to the tax assessed for building of said sidewalk, and that said tax is a lien upon the whole of said outlot 18 except the north 175 feet thereof.” We are of the opinion after a careful review of the evidence that the court’s finding was fully sustained by the same. O’Connell, it appears from the evidence, was in the employ of the plaintiff, and engaged in ranching in the western part of the state. He was a single man without a family, and had no other interest in the defendant city. The purported conveyance by the plaintiff to O’Connell of the strip of land 10 feet in width and extending 525 feet along the street was a most remarkable transaction. What-use O’Connell could make of that strip of io feet in width, and extending along the street for the distance of 52.5 feet, it is somewhat- difficult to imagine. Certainly no buildings could be erected on.the land extending only 10 feet back from the street line, and, while O’Connell claims that he purchased the strip for an investment, it i-> quite clear that the real transaction between the plaintiff and O.’Connell was intended to protect the plaintiff’s outlot from the expense of constructing the sidewalk along the eastern side of same. The finding- of the court was, in our opinion, sustained by the evidence. The question of the ownership of the io-foot strip is therefore practically eliminated from the case, and we shall assume for the purposes of this decision that the plaintiff was the owner of the whole of outlot 18, except the 175 feet above mentioned.

This brings us to the question as to whether or not the .proceedings of the common council of the defendant were such as to render the lien of the city valid and binding upon said outlot. The findings of the court are very voluminous, and we shall not attempt to reproduce them in full in this opinion, as they contain at great length the motions, resolutions, and ordinances adopted-by the city council in the proceedings taken for the construction of the sidewalk in controversy, but such of them as we deem material will be referred to.

It is disclosed by these findings that on September 7, 1909, on motion, it was decided to construct sidewalks on the east side of outlot' 18 and other streets; that on September 13th Ordinance No. 29, being an ordinance establishing sidewalks as in previous motion on September 7th, was introduced; that on September 20th Ordinance No. 29 was read for the second time and upon motion passed; on October 4th a resolution was introduced and the date of final1 action set for October 18th, and notices were ordered posted on the property affected and served on the owners of same. On October 18th the sidewalk resolution introduced at the previous session was read, and the parties interested were given ah opportunity to enter objections. W. B. Wood appeared on behalf of the tile factory, and stated that they did not want to put in the walk, but, if compelled to put one in, they would put in cement, but did not feel safe in doing so that fall, owing to the lateness of the season. On motion the resolution introduced on October 4th relating to the construction of sidewalks on Wash-, ington and Ju-dson streets was adopted, and, upon -motion, a resolution was also adopted which provided that the parties should be given until May 1, 1910, in which to construct the sidewalks. It is further .disclosed by the record that the plaintiff, W. B. Wood, w-as the owner of the whole of outlot 18, except the north 175 feet thereof, on September 7, 1909, the time that the common council began proceedings for the construction of a sidewalk on the east side of said outlot, and that the notices required to be ' given to the owner and to be posted on the premises adjoining the proposed sidewalk were duly served and posted, and that the notice served upon the plaintiff, Wood, was served on October 7, 1909.

The assignments of error are quite numerous but may be grouped under four headings: (1) That -the ordinance passed by the city council failed to state that “necessity existed for the construction of said sidewalks”; (2) that the ordinance provided for sidewalks along different streets in the same -ordinance; (3) that the court erred in finding that the -proceedings certifying the amount of the assessment by the city auditor were legal and valid and created a valid lien upon the outlot of the plaintiff; (4) that the court erred in not finding the facts as presented to him by the proposed findings of the plaintiff.

[2] Section 1541, P. C., provides: “Whenever” the common council of any -city of the third class, * * * shall deem it necessary to construct or repair any sidewalk in any such city or town they shall require the street commissioner to notify in writing all resident owners and occupants of any lot or lots or parcels of land adjoining such sidewalk to construct or repair the same at his or their own proper expense and charge within the time designated in said notice. * * *” Section 1542: “If such work is not done and the said sidewalks not built -or repaired in the manner and within the time prescribed, the common council * * * may order the same to be done by the street commissioner at the expense' of the lots and parcels of land adjoining said sidewalks, and said expenses shall be assessed upon such lots and parcels of land bo chargeable by the street commissioner and returned by him to the common council or board of trustees. And said assessment so made and returned, if approved by the common council * * * shall become a lien upon said lots and parcels of land as in case of city, county and state taxes.” Section 1543 provides that, if said assessment is not paid by the 20th day of August, the same shall be certified to the county auditor, and section 1544 provides that the common council shall prescribe the width of such sidewalks and may establish different widths in different localities, and determine the kind of material of which they shall be constructed.

It will be observed that section 1541 provides that “whenever the common council of any city of -the third class * * * shall deem it necessary to construct or repair any sidewalk,” etc. It is contended by the appellant that the ordinance adopted in the case at bar was fatally defective, in that it does not affirmatively appear that it was declared by the common council to be necessary to construct such sidewalk. It is insisted, however, on the part of the defendant that, inasmuch as the section does not require in express terms that such declaration shall be contained in the ordinance, no such declaration is necessary. We are inclined to take the view that the defendant is right in its contention, and that it is sufficient that the city council pass an ordinance, and thereby affirm the necessity of the construction of such sidewalk. The Legislature having failed to require that the declaration as to the necessity shall be contained in the ordinance, this court is not at liberty to interpolate into- the law a provision not contained therein. The learned counsel for the plaintiff has cited a number of authorities holding that, unless such declaration is contained in the ordinance, the same is void, but an examination of the authorities discloses the fact that in all, or nearly all, the cases the Legislature had required that the ordinance should contain such a declaration. Council cites as one of his cases McLauren v. City of Grand Forks, 6 Dak. 397, 43 N. W. 710, decided by the late territorial Supreme Court of the territory of Dakota, but in that case it is said by the court in its opinion: “It is provided by the city charter of the city of Grand Forks, in substance, that when the mayor and council shall deem it necessary to grade any street, alley, etc., within the limits of the city, for which a special tax shall be levied the mayor and council shall, by resolution, declare such zvork and imp>roz’ement necessary to be done.11 It will thus be seen that in that case the charter specifically provided that the resolution should “declare such work and improvement necessary.” In the cases of White v. Stevens, 67 Mich. 33, 34 N. W. 255, Hoyt v. City of Saginaw, 19 Mich. 39, 2 Am. Rep. 76, and City of Kirksville v. Coleman, 103 Mo. App. 215, 77 S. W. 120, the same provision was contained in substance as in the McLauren Case above quoted. In the case of Hoyt v. City of Saginaw, supra, the- Supreme Court of Michigan, speaking by Chief Justice Cooley, says: “The charter of the city of East Saginaw provides * * * 'whenever the common council shall deem any such improvement necessary they shall so declare by resolution.’ ” In the case of City of Kirksville v. Coleman, supra, the Missouri Court of Appeals uses the following language in discussing certain sections of the ordinance upon which the action was based: “It is therein provided that whenever the city council shall deem it necessary to improve a street it shall declare by resolution, published for two weeks, that such work is necessary to be done.’” In section 1303, P. C., it is provided that, “when the'city council shall deem it necessary” to make certain improvements, grading, etc., “the city council shall by resolution declare such work or improvement necessary to be done.” This provision, however, is contained in the chapter preceding the one in which are contained the provisions relating to the construction of sidewalks in. cities of the third.class heretofore quoted from. The Legislature having provided in section 1303 that, “when the city council shall deem it necessary to open certain streets,” etc., they shall declare by resolution the work or improvement necessary, but omitted this provision in section 1541, providing for the construction of sidewalks in cities of the third class, we must conclude that it was omitted intentionally, and that the Legislature had good and valid reasons for such omission. It is contended by the defendant that sections 1541-1545, P. C., contain all the provisions required for the construction of sidewalks in cities of the third class, and we are of the opinion that the defendant is right in its contention, and that it is not necessary or proper in the decision of this case to consider the provisions contained in the preceding chapter for the purpose of determining the validity of the proceedings and the assessment in this case. We are of the opinion, therefore, that the court was right in holding the ordinance valid notwithstanding the decisions under the provisions contained in the statutes and ordinances in the cases cited.

[3] It is contended by the appellant that as the ordinance providing for the construction of sidewalks in the city of Hurley included a number of streets in the same ordinance the proceedings are invalid, but we are of the opinion that this contention is not tenable. It is true .that in the case of Whittaker v. City of Deadwood, 23 S. D. 538, 122 N. W. 590, 139 Am. St. Rep. 1076, this court held that an ordinance providing for the paving of a number of streets in the city of Deadwood in the same ordinance was invalid for the reason that the streets were of different widths, and that the expense of paving imposed unequal burdens upon the property holders on different streets. That decision, however, has no application to the case at bar, as the expense attending the construction of the sidewalk is to be borne by the respective lots in proportion to the number of feet fronting on the same, and no injustice can result to the owners of lots fronting on the street by reason Of the fact that other streets are included in the same ordinance, and such seems to be the view of the Supreme Court of Illinois in Springfield v. Green, 120 Ill. 269, 11 N. E. 261, and Wilbur v. Springfield, 123 Ill. 395, 14 N. E. 871, quoted from in the case of Whittaker v. City of Deadwood, supra. The fact, therefore, that sidewalks were ordered to be constructed on several streets where the same were to be constructed practically of the same material and substantially the same width, does not, in our opinion, render the ordinance invalid. The use of the term “street” in .the statute-instead of “streets” does not in our opinion necessarily imply that sidewalks on different streets may not be ordered constructed in the same ordinance.

[4] It is contended by the plaintiff that the certificate of th¿ city auditor transmitted to the county auditor showing the amount of the assessment of tax is illegal and void, but in our opinion this contention is untenable as the proceedings of the common council and the auditor as found by the court were in substantial compliance with the .provisions of section 1543, P. C. Said certificate is as follows: “Office of Auditor, City of Hurley, South Dakota, August ¿6, 1910. To the Auditor of Turner County, South Dakota: I, A. J. Allen, auditor of the city of Hurley, S. D., hereby certify that the sum of $319.16 has been assessed and taxed by the acting city commissioner of the city of Hurley, S. D., against all of outlot T8 except the north 175 feet thereof -for the construction of a sidewalk on the east side of the above described property, "and that said assessment and tax has been approved by the council of the city of Plurley, S. D., on the 12th day of August, 1910. You are hereby instructed to insert said assessment and tax against the above described property with the other taxes in your annual statement of taxes to the county treasurer for collection. [Signed] A. J. Allen, Auditor City of Hurley, S. D.” The court found -that proper notices were served upon the plaintiff, AVood, and duly published as required by law, and that the certificate of the city auditor was duly spread upon the records, of the county auditor as required by law. The findings are clearly sustained 'by the evidence, and the court’s conclusion that the defendant was entitled to judgment is fully sustained by the findings.

[5] It is contended by the plaintiff that there was a double assessment, in that the sidewalk tax of $319.16 also appeared on the records of the said county auditor as assessed and the tax levied against the said O’Connell interest in the said property, but this proceeding of the county auditor in spreading the same upon his records was clearly unauthorized and null and void, and, in fact, there was only one legal assessment or tax levied upon the said property and authorized by the city auditor to be spread upon the records of the county auditor. The contention of the plaintiff that the findings proposed by him should have been found by the court is based mainly upon the two propositions that O’Connell was the owner of the 525-foot strip heretofore referred to adjoining the sidewalk and the omission of the common council to declare in their ordinance providing for the construction of the sidewalk that the same was necessary, but as we have held that the finding of the court that the conveyance from the plaintiff to O’Connell was not a valid conveyance as against the proceedings taken by the common council, and the omission of the council in the ordinance to declare that, the sidewalk was necessary did not invalidate the ordinance, it will not be necessary to review the errors assigned as to the court’s refusal to make the findings requested by the .plaintiff specifically, as- we are of the opinion that the court was clearly right in refusing to make the same.

We have not overlooked the other assignments of error, but do not deem them of sufficient importance to merit separate discussion.

Our conclusion, therefore, is that the judgment and order denying plaintiff’s motion for new trial were correct, and the same are affirmed.