Pool v. Town of Townsend

Cities and Towns—Taxation—Special Improvement Districts— Additions—Estoppel—Injunction—Judgments. Cities and Towns—Taxation—Special Improvement Districts—Estoppel. 1. Failure of an owner of town property to make protest to the creation of a special improvement district comprising an area of 14,000 Square feet did not estop him from thereafter complaining of the inclusion of an additional area of equal extent made without his knowledge or consent, and of the proportionate increase in his tax. Same—When Tax Void Ah Initio. 2. A special improvement tax on an addition to a town'not within its limits at the time the district was created is void ah initio. Same—Additions—How Accomplished—Common Law. 3. Since the Codes provide the means whereby an addition may ■become a part of a city or town, the means so provided are exclusive, and the method by whieh the same result might be reached under the common law has no application. Same—Additions—Filing of Plat not Alone Sufficient. 4. The approval of the mayor and council of a city or town is, under section 3212 of the Revised Codes, essential to bring it within the jurisdiction of the council, the filing of the map alone being insufficient. Same—Taxation—Injunction—Judgment Too Broad, When. 5. Where only a portion of a special improvement tax was illegal because imposed upon land not. within 'the town limits at the time the district was created, a judgment enjoining the collection of the entire tax, part of which was on property properly included in the district and therefore justly due, was too broad; judgment therefore modified to apply to only that portion illegally imposed. [The question of municipal taxation of rural lands within the limits of the corporation is discussed in notes in 34 L. R. A. 193; 27 L. E. A. (n. s.) 695.]

Appeal from District Court, Broadwater County, in the Fourteenth Judicial District; B. Lee Word, a Judge of the First District. Suit by G. E. Pool against the Town of Townsend and B. Williams, Treasurer of Broadwater County, to restrain the collection of taxes. Judgment for plaintiff, 'and defendants appeal. The town council of Townsend intended the resolution of May 13, 1913, to be a resolution of intention, and acted upon it as such. The omission of the words “of intention” after the word “resolution,” in the caption of the resolution, was at the best a mere informality, as there is nowhere any requirement in the statute that any resolution need have any title whatsoever; and none, therefore, is necessary, although it is required in the case of an ordinance. As was said by the supreme court: “A mere informality in the resolution ought not to render the effort to acquire jurisdiction nugatory and doubtless would not if the subsequent proceedings in pursuance of it were in conformity with the statute.” (Shapard v. City of Missoula, 49 Mont. 269, 280, 141 Pac. 544.) Notice of passage of resolution of intention was actually given by publishing, by posting, and by mailing. The mere fact that the affidavit of publication was not filed with the clerk until December 14, 1915, would not invalidate, or affect the validity of, the proceedings. The real question is whether the notice was actually published, and not whether the clerk procured the affidavit or recorded all the items that would be helpful in proving that fact. Such provisions are directory merely. (Marth v. City of Kingfisher, 22 Okl. 602, 18 L. R. A. (n. s.) 1238, 98 Pae. 436.) “The very best evidence is the thing itself”—in this instance, the newspaper files. If, for example, there was an affidavit of publication on file, it would only be prima facie, and the newspaper files themselves are always competent to prove whether or not a certain notice thereof recited in the affidavit had been published for a given number of issues. Where service is actually made, it will be sufficient regardless of its return, or in the absence of its return (Dyer v. Woods, 166 Ind. 44, 76 N. E. 624), and where proof of publication is defective, parol evidence is admissible to supply the defect. (Clinton v. Portland, 26 Or. 410, 38 Pae. 407.) If the statute provides for service by mailing notices, it is sufficient if the notices are mailed, in accordance with the provisions of the statute. (City of Chicago v. Galt, 225 111. 368, 80 N. E. 285; People ex rel. Coffmtm v. Ryan, 225 111. 359, 80 N. E. 279; Elgin etc. By. Co. v. Hohenshell, 193 111. 159, 61 N. E. 1102; Chicago etc. Ry. Co. v. People, 154 111. 256, 40 N. E. 342; McChesney v. People, 145 111. 614, 34 N. E. 431.) The plaintiff did none of the things which under Chapter 89, Laws of 1913, he could have done; he stood by, remained silent, and failed to appear at any time or to make any objection before the tribunal provided by law, and cannot now be heard to complain in court; and this court has held that the necessity for appearing and objecting in the manner required by the statute is a condition precedent, and must be both pleaded and proved, and that plaintiff is estopped to complain or claim any relief. (Power v. City of Selena, 43 Mont. 336, 342, 36 L. R. A. (n. s.) 39, 116 Pae. 415; McNamee v. City of Tacoma, 24 Wash. 591, 64 Pac. 791; Spalding v. Denver, 33 Colo. 172, 80 Pac. 126; Minnesota etc. Imp. Co. v. Billings, 111 Fed. 972, 50 C. C. A. 70; Brown v. Drain, 112 Fed. 582; s. c., 187 U. S. 635, 47 L: E. 343, 23 Sup. Ct. Rep. 842 [see, also, Rose’s U. S. Notes]'; Wray v. Fry, 158 Ind. 92, 62 N. E. 1004; Smith v. Carlow, 114 Mich. 67, 72 N. W. 22; City of Greensburg v. Zoller, 28 Ind. App. 126, 60 N. E. 1007; Chicago <& N. W. By. Co. v. People, 120 111. 104, 11 N. E. 418; Wilson v. City of Salem, 24 Or. 504, 34 Pac. 9, 691.) The burden of proof was upon plaintiff to show that the taxing power was not lawfully exercised, or that there are fatal infirmities in the proceedings leading up to the tax levy. (Parrotte v. City of Omaha, 61 Neb. 96, 84 N. W. 602.) The actions of municipal authorities making an assessment for special improvements comes within the protection of the general maxim that public officers are presumed to have rightly acted until the contrary is clearly, made to appear. (Mc-Quillin on Municipal Corporations, sec. 2117; Barber Asphalt Paving Co. v. Tillman, 137 Mo. 543, 38 S. W. 458.) That a mistake in the description of property to be included in the improvement district is not such a mistake as will affect the jurisdiction of the council in creating a special improvement district is recognized in a California case, where the court said: “The said resolution does not show on its face what the district created really was; but at all events, the matter of the size of the district is not jurisdictional.” (O’Dea v. Mitchell, 144Cal. 374, 77 Pac. 1020.) Where a city has incurred the expense of an improvement without objection and then has assessed the benefits, it is too late for a party assessed to object that- the ordinance is invalid. (Greater Newark Associates v. City of Newark, 79 N. J. L. 331, 75 Atl. 745; Walsh v. First Nat. Bank, 139 Mo. App. 641, 123 S. W. 1001; Farrington v. City of Mount Vernon, 51 App. Div. 250, 64 N. Y. Supp. 863; affirmed, 166 N. Y. 233, 59 N. E. 826; Bosell v. Neptune City, 68 N. J. L. 509, 53 Atl. 199; Haughawout v. Raymond, 148 Cal. 311, 83 Pac. 53; City of New Whatcom v. Bellingham Bay Imp. Co., 18 Wash. 181, 51 Pac. 360.) A property owner is estopped from enjoining the collection of excessive installments of an assessment to pay for a public improvement, where he has voluntarily paid the first installment thereof and watched in silence the letting of the contract and the completion of the improvement, and has accepted all the benefits thereof. (Stewart Go. v. City of Flint, 147 Mich. 697, 111 N. W. 352; People v. Baymond, 248 111. 124, 93 N. E. 727; McDonald v. People, 206 111. 624, 69 N. E. 509.) “The due publication, of these notices (notice of intention to establish a road) was the only means by which the county court could acquire jurisdiction of the matter, and, the record failing, to show that the method prescribed • by statute had been pursued, it never acquired jurisdiction to make the order declaring the proposed road a public highway.” (Cameron v. Wasco County, 27 Or. 318, 41 Pac. 160.) “In cases of this nature, where public officers are proceeding summarily to deprive the owners of their land, jurisdictional facts must be distinctly shown, and-are not to be made out by a general averment, which amount to no more than a statement that the law has been complied with.” The records must show the facts so that we may see whether the law was complied with or not. (Dupont v. Highway Commrs., 28 Mich. 362.) The rule with respect to courts of special and limited authority is that their jurisdiction is never presumed, but must affirmatively appear by sufficient evidence and proper averment in the record. (17 Am. & Eng. Ency. of Law., p. 1082.) “Proof of the publication or posting of any notice provided for herein shall be made by affidavit of the owner, publisher, printer or clerk of the newspaper, or the poster of the notice.” (Subd. 4, Chap. 9, Laws 1913.) That the records and files of the town council failed to show these facts is uncontradicted, and is admitted by the testimony of the clerk of the town. The admission of the oral testimony of T. N. Averill of the publication and mailing of the notices, over the objections of the plaintiff, was erroneous, in that it was an attempt to prove the official acts of the town council by parol testimony. (Sec. 7896; subd. 5, see. 7924, Revised Codes; Stephens v. Nacey, 49 Mont. 230, 141 Pac. 649.) “Special taxes cannot be levied by a municipality unless the property- charged receives a corresponding, physical, material and substantial benefit therefrom. ” (Power v. City of Helena, 43 Mont. 336, 36 L. R. A. (n. s.) 39, 116 Pac. 415; City of Owensboro v. Sweeney, 129 Ky. 607, 130 Am. St. Rep. 477, 18 L. R. A. (n. s.) 181, 111 S. W. 364.) “The exaction from the owner of private property for the cost of a public improvement in substantial excess of the special benefit accruing to him is, to the extent of the excess, a taking, under the guise of taxation, of private property for public use without compensation.” (Power v. City of Helena supra; Tillage of Norwood v. Baker, 172 U. S. 269, 43 L. Ed. 443, 19 Sup. Ct. Rep. 187 [see, also, Rose’s U. S. Notes].) The whole theory of local taxation or assessments is that the improvements for which they are levied affords a remuneration in the way of benefits. (McCormack v. Patchin, 53 Mo. 33, 14 Am. Rep. 440.) - The assessable value of plaintiff’s lots in this district and subject to tax was $70. The tax levied by the Resolution was $402. The cost of the improvements to plaintiff far exceeds the value of his land, and, if enforced, is confiscatory.