MINNESOTA & M. LAND & IMPROVEMENT CO. v. CITY OF BILLINGS et al., 111 F. 972

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The validity of the proceedings whereby the special tax was levied by the city of Billings is challenged upon several grounds, one of which is that the statute which authorized the same violates the provision of the constitution of the United States which prohibits any state from depriving any person of property without due process of law, for the reason that it permits the exclusion of the consideration of the benefits of the improvement to the property which is to bear the burden thereof.

The statute (section 440g) provides that’ the city council shall enact by ordinance that the expense of such improvements shall be paid by the entire district; each lot therein to pay by special assessment the quotient found by dividing the whole expense by the entire number of lots; the assessment on each lot to be proportioned to its area. But

section 428 of

chapter 22, as amended by the act of 1893, provides as follows: “For the purpose of payment of expenses, including all damages and costs incurred in taking- of private property, and of making any improvement mentioned in tlie preceding sections, tlie city council may by resolution levy and ássess the whole or any part not less than half of sncli expenses as a tax upon sncli property as they shall determine is specifically benefited thereby.” Laws 1893, p. 130.

The same section- makes further provision requiring the publication of the resolution and notice of the time when the city council shall meet to hear objections which may be made to the assessments. The meaning of the statute is that the city council is only authorized to assess and levy the expense of making the improvement as a tax upon such property as they shall determine is specifically benefited thereby, or, in other words, there must be in the creation of an improvement district a determination as to what property would be benefited thereby, and only such property may be included therein.

This seems the reasonable construction of these provisions of the statute, but, if the provisions of

section 440g are to be taken as standing alone and unaffected by any other section, they still do not create an assessment which is void, or which takes the property of the taxpayer without due process of law; nor is Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, authority to the contrary. That case involved the validity of a village ordinance which imposed upon the abutting, property the entire cost of opening a street through the premises, of a single property owner., whose, land was condemned for the street.

There had been no legislative determination as to what lands were benefited, ■ no inquiry concerning the benefits by the village council, and no opportunity to the abutting owner to be heard on that subject. The court held that the exaction from the owner of the entire cost of the public improvement, in substantial excess of the special benefits accruing to him, was, to the extent of such excess, a taking of private property for public use without compensation. The limits of the doctrine of that case have been defined by the supreme court in the recent decision of French v. Paving Co., 181 U. S. 324, 21 Sup.

Ct. 625, 45 L. Ed. 926,—a case which-involved an assessment substantially identical with that which is under consideration in' the case at bar. It was a cáse where the cost of a pa-vement was apportioned, as against the lots fronting thereon, under a charter which required that the total cost of the work should be apportioned as a charge against the abutting lots-according to their frontage on the improvement, without reference to any benefits which might accrue to the property upon which the charge was made.

It was contended, under the authority of Village of Norwood y. 'Baker, that such assessment was void; but the court held otherwise, quoting with approval Dill. Mun.

Corp. § 752, as follows: “* * * Whether the expense of making such improvements shall be paid out of tlie general treasury, or be assessed upon the abutting or other property specially benefited, and, if in tlie latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of tlieir lots, is, according to the present weight of authority, considered to be a question, of legislative-expediency.” The decision in French v. Paving Co. clearly determines the present question adversely to the appellant’s contention.

The appellant denies the authority of the city to include the whole city in a single improvement district. The statute under which the improvement was made and the tax was levied, as amended by

section i of the act of 1893, authorizes the city council “to create special improvement districts within tke city, designating the same by number, and to change the boundaries of said districts from time to time as the city council may deem expedient.” Laws 1893, p. 121. This provision should be construed with reference to the object which was intended to be accomplished.

It is contended by the appellant that because the word “districts” is used in the plural, and authority is given to create special improvement districts “within the city,” and to desígnate the same by number, ihe statute can only be complied with by creating at least two districts, and that the. inclusion of the. whole city in a single district is absolutely without authority of law. We think the statute should not he thus narrowed in its construction. It was intended to confer the broad power of creating special improvement districts, commensurate with the improvement which was required to be made therein.

The word “special” qualifies the improvement, not the district. The improvement in this instance affected the whole city. If it had affected but three-fourths of the city, it is not disputed that all the area so affected might have been included in an improvement district. It is but to pursue the same course of reasoning to reach the conclusion that by leaving out one block all the remainder of the city might be included in one improvement district.

The statute undoubtedly was intended to authorize the city council to make whatever special improvement, within the scope of enumerated powers, might be deemed necessary for the welfare of the citv, or any part thereof. It was to be a continuous power, to he exercised as occasion might arise, and to be adequate to tlie necessities of the case,—a power to include the whole city in one district, if necessary for an improvement which affected the whole, or to divide the city into smaller districts for other special improvemems which might affect only the particular portions so included.

But if, indeed, it were doubtful whether the statute so quoted authorized the inclusion of the whole city' in one improvement district, all doubt would seem to be removed by

section qj.og, which was added to

chapter .22 of tlie Compiled Statutes of Montana by the act of 1893, and which provides that: "Whenever it is desired lo create special improvement districts for the purpose of grading, paving, macadamizing, or otherwise improving any slreet, nvr-mie, or-alley, or any part thereof, or building, repairing, or improving any sewer, sidewalk, or goiter; or making any other public improvements. including street sprinkling and planting of trees * * * the city council shall by resolution designate the boundaries of snch district which may be composed of all or any pari of any block or blocks within said city.” So, also, under subdivision 47 of

section 325 of the act, the power is given to the city council to establish at a suitable point without tlie limits of the city, in case of necessity, a hospital, to prevent the spread of smallpox or other contagious or infectious diseases, “and do all other acts which may be necessary for the promotion of health and to prevent the spread of contagious diseases within the city”; and in subdivision 56 the power is given “to lay off the city in suitable districts for the purpose of establishing a system of sewerage and drainage.”

Section 440I1 makes provision for giving notice by publication of the proposed creation of a special improvement district, and the boundaries thereof, and furnishes opportunity to any person owning any real estate within such district to appear before the city council and show cause why the proposed improvement should not be ordered, and why the special improvement district should not be established. All of these requisites of the statute were complied with in the present case. The appellant made no objection to* the creation of the improvement district or to the proposed improvement.

Its first protest was recorded after the improvement had been completed, and proceedings had been instituted to compel the payment of the assessment. Nor is any reason perceived why a portion of the improvement should not have been made on lands without the city. The scheme was to drain the city, and thereby to benefit the property thereof and to protect the health of its inhabitants. To accomplish this, it was necessary to extend the • drainage beyond the city limits, in order to obtain a proper outlet.

A city council undoubtedly has the power, if it be granted the authority to make, such improvement, to make it efficacious, by extending it as far as necessary beyond the, corporate limits. Dill. Mun. Corp. (4th Ed.) § 446; City of Coldwater v. Tucker, 36 Mich. 474, 24 Am. Rep. 601. It is further contended that the enforcement of the tax should be enjoined for the reasoxi that no assessment was levied against a large portion of the land which lies within the improvement district, and that there was omitted therefrom land equal in area to about 2,400 lots.

The authority to levy the assessment is by statute confined to laxxd which has been subdivided into lots and blocks. The xxcord shows that the pxxperty omitted from the assessxnent consisted almost entirely of public property of the city, the rights of way of railroads, and other land which liad not been platted, of which latter the appellaxit itself was the owner of an area equal to 261 lots.

The record does not convince us that property within the district was excluded from the assessment whicli ought to have borne its proportion of the burden of the improvement, but, if it were, the time to object to its omission was prescribed by

section 4400. The objection which is interposed by the present suit comes too late. The appellant contends that the city of Billings never acquired the right to avail itself of the authority to create special improvement districts, or to order the improvement which was made in this case; for the reason that it was never reincorporated under the provisions of

chapter 22, div. 5, Comp. St. Mont., and the amendment thereto. The city had been incox*porated under the act of March 10, 1885, entitled “An act to incorporate the city of Billings.” Laws 1885, p. 147. DTnder that charter it had no express authority to make the improvement, or to levy the special tax which is here complained of. On March io, 1887, a ■ general statute was enacted, entitled “An act relating to the formation of municipal corporations,” which became

chapter 22 of the Compiled Statutes of Montana, and consisted of sections numbered I to 126, inclusive.

Section 78 of that act authorized any city or town which had been incorporated by special charter to abandon its organization, and reorganize under the provisions of the act, by pursuing the course therein prescribed.

Section 79 prescribed the course, and provided that the proceedings should be initiated upon the petition of 200 citizens, residents, freeholders, and qualified electors, and contained the provision that “all the requirements of this act as to notice of the election, the appointment of judges and clerks thereof, the returns of the election and the canvassing of the votes given, shall be complied with.” At an extra session of the legislature convened in August, 1887,

section 79 was amended.' The amended

section was set forth in full, and the amendment consisted in omitting from the

section the requirement that the petitioners be freeholders. In other respects it remained as it was before the amendment. The next legislation on this subject was in 1889, by

an act entitled “An act to amend

chapter XXII., fifth division, of the Compiled Statutes of Montana, relating to municipal corporations, and the amendments thereto, approved vSeptember 14, 1887.” Laws 1889, p.

Section 79, as originally embodied in

chapter 22, was so amended as to provide as follows : “The common council or board of aldermen may at any time order an election to be held at which the question of reincorporation under tlxis act shall be decided.

If a majority of the qualified voters, as defined by this act, shall vote in favor of reincorporation of the city or town, under the provisions of this act, they shall thereupon be incorporated hereunder in all respects and subject to all the provisions of this act as if originally incorporated hereunder, all the requirements of tills act as to notice of the election, the appointment of judges and clerks thereof, the -returns of the election, and canvassing the votes given, shall be complied with.” The appellant directs attention to the fact that the act of 1889 expressly repeals certain sections of the previous statutes relating to municipal corporations, but does not expressly repeal the amendment of the extra, session of 1887, nor does it contain any general repealing clause, and contends that the amendment of 1887, not being in direct terms amended or repealed, remains in force, and that the city of Billings could not become reincorporated upon a proceeding instituted by the common council, but could only do so upon the petition of 200 citizens, residents and qualified electors, and in the manner prescribed by the amendment of 1887.

We do not so construe the act. We think there can be no question that the act of 1889 expresses the legislative will upon the whole subject of the preceding legislation.

Section 292 of the Political Code of Montana provides: “Where a

section or a part of a statute is amended it is not to he considered as having been repealed and reenacted in the amended form; but the portions which are not altered are to he considered as having been the law from the time when they were enacted, and the new provisions are to be considered as having been enacted at the time of the amendment.” The statute but expresses the rule that would obtain in its absence,—that an amendatory statute will be upheld, though it purport to amend a statute which has already been amended. Com. v. Kenneson, 143 Mass. 418, 9 N. E. 761; Wire Co. v. Boyce, 44 C. C.

A. 588, 104 Fed. 172; Heinze v. Mining Co., 46 C. C. A. 219, 107 Fed. 165. From and after the adoption of the amendment of 1889, the whole of the existing law concerning the method of reincorporating municipal corporations is embodied in the

section thus amended. The method thereby prescribed was substantially followed in the case of the city of Billings. Its right, therefore, to avail itself of-the powers conferred upon such reincorporated cities, cannot be assailed. We have discussed the question as if it were one that the appellant is entitled to raise in the present suit. The decisions, however, seem to be unanimous that the question can ..only be raised by the state itself upon quo warranto or other direct proceedings, and-that the existence of the corporation, or its reincorporation under a new statute, cannot be questioned collaterally.

Cooley, Const. Lim. (5th Ed.) p. 311; Mullikin v. City of Bloomington, 72 Ind. 161; Speer v. Board, 32 C. C. A. 101, 88 Fed. 749; Troutman v. McCleskey (Tex. Civ. App.) 27 S. W. 173; State v. Town of Dover, 41 Atl. 98. We find no error in the decree of the circuit court. The decree will be affirmed ROSS, Circuit Judge, dissents.