Allen v. City of Butte

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On July 22, 1908, the city council of Butte adopted Council Resolution 762, for the creation of Special Improvement Dis *207 trict No. 70, and for the grading of the streets and the construction of a sanitary sewer within the boundaries of the district. ‘Section 4 designated July 29 as the time for hearing objections “to the final adoption of this resolution,” and section 5 provided for the publication of notice. On July 29 the council •finally adopted the resolution, no objection thereto having been •made. On August 6, Ordinance 849A was passed and approved, by the terms of which it was ordered that Antimony Street, within District 70, be graded according to the established grade of the city, and that a sanitary sewer of eight-inch concrete pipe be laid in said street within the district. The ordinance provided for payment on the installment plan and fon special assessments to meet the expense. Thereafter the improvements were made, and special improvement warrants delivered in payment. On February 3, 1909, Council Resolution 800 was finally adopted, after notice, and this resolution levied a special tax against the property of the district affected, to meet the installment due in 1909. Several of the property owners refused to pay the special assessment and united in instituting this suit to •restrain the city from selling their property to satisfy the delinquent tax. The city prevailed, and plaintiffs appealed from the judgment dismissing their complaint.

The proceedings of the city were governed by sections 3367, •3369-3389, and 3396-3412, Revised Codes. These statutes have long since been repealed, and no useful purpose can be served by an extended discussion of their provisions.

1. Council Resolution 762 shows upon its face that it was intended to be a resolution of intention to create a special improvement district, and not a resolution which in itself ■created the district upon its adoption July 22, 1908. This brings the cáse clearly within the rule adverted to in Shapard v. City of Missoula, 49 Mont. 269 , 141 Pac. 544 , and distinguishes it from Cooper v. City of Bozemam, 54 Mont. 277 , 169 Pac. 801 . [I] The publication of the resolution, which contained the proper reference to the time and place for hearing objections *208 to the final adoption of it, was a substantial compliance with the statute. (See. 3397.)

2. Resolution 782 designated the character of the improvements contemplated, with sufficient particularity. (Mansur v. City of Polson, 45 Mont. 585 , 125 Pac. 1002 .)

3. There is not anything inconsistent between the provisions [2] of sections 3385 and 3396. The former section refers to improvements to be paid for by a single payment — in other 'words, the work to be paid for in cash immediately upon its completion; whereas, section 3396 refers to public improvements to be paid for upon the installment plan, covering a [3] period of years. Since the council adopted the latter plan, they were authorized to charge the entire cost to the property.

4. The initiative and referendum apply only to matters of [4] general legislation, in which all the qualified electors of the city are interested, and not to matters of purely local concern, such as the creation of a special improvement district, in which only the inhabitants or property owners are interested. (Carlson v. City of Helena, 39 Mont. 82 , 17 Ann. Cas. 1233, 102 Pac. 39 .)

5. It is argued in the brief of counsel for appellants that the [5] city council did not by a vote of a majority of its members decide that the construction of the sewer was necessary for sanitary purposes, and the doctrine of Stadler v. City of Helena, 46 Mont. 128 , 127 Pac. 454 , is invoked in behalf of the contention that the city did not acquire jurisdiction to proceed with the creation of the district. In the Stadler Case it was alleged in the complaint that “the city council did not, by a vote of the majority of its members, decide that the construction of said sewer was necessary for sanitary purposes,” and this allegation was admitted to be true. In the present case no such allegation is made. The statute (section 3373) is silent as to the manner in which such decision should be made manifest, and upon the pleadings as they appear in this record the question argued 'does not arise.

*209 6. The statutes involved in this action were considered at [6] length in McMillan v. City of Butte, 30 Mont. 220 , 76 Pac. 203 , and it was there held that it is a question for the legislature to determine in the first instance what property will be specially benefited by an improvement; and in Beck v. Holland, 29 Mont. 234 , 74 Pac. 410 , it was determined that the legislative authority can be, and in these statutes was, delegated to the city council.

The council, then, having observed the method of procedure ordained by the statute, acquired jurisdiction to order the improvement and to levy the assessment against plaintiffs’ property, and the assessment thus levied became a lien upon the property from the date when such assessment became due (section 3407), and was not affected by the fact that thereafter each of these plaintiffs recovered a judgment against the city for damages on account of the street grading done pursuant to Ordinance 849A.

The" judgment is affirmed.

'Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.