Opinion
Nos. 5072, 5073.
March 21, 1929.
APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H.F. Ensign, Judge.
Action to enforce payment of special assessment warrants. Judgment for plaintiffs. Reversed.
Bissell Bird, for Appellants.
Municipal warrants which specifically provide that they are payable from street improvement district No. 2 fund cannot be paid from the general or warrant redemption funds of the municipality. (C. S., secs. 4047 and 4049; Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034.)
Under the statutes and laws of Idaho the warrants sued upon are not payable from the general fund or the warrant redemption fund of the appellant municipality. (C. S., sees. 4005, 4007, 4013, 4019, 4026, 4053 and 4058; Const., sec. 3, art. 8; New First Nat. Bank v. City of Weiser, 30 Idaho 15, 166 Pac. 213; Const., sec. 3, art. 8; Byrns v. City of Moscow, supra; Feil v. City of Coeur d'Alene, 23 Idaho 32, 129 P. 643, 43 L.R.A., N.S., 1095; Boise Devel. Co. v. City of Boise, 26 Idaho 347, 143 P. 531; Moore v. City of Nampa, 18 Fed. (2d) 860.)
Bothwell Chapman, for Respondents.
The board of trustees of the Village of Wendell was authorized to contract for the making of the improvements herein, and to contract for the payment of such improvements out of the general funds of the municipality or by special assessments upon land fronting, contiguous or tributary to the streets on which such improvements were to be made. (C. S., secs. 3492, 3944; Byrns v. City of Moscow, supra; Argenti v. City of San Francisco, 16 Cal. 255; Soule v. City of Seattle, 6 Wn. 315, 33 P. 384, 1080; Stephens v. City of Spokane, 11 Wn. 41, 39 P. 266; Clark v. City of Des Moines, 19 Iowa, 199, 87 Am. Dec. 423.)
The statutes of Idaho provide two methods whereby a municipality may provide for the payment of improvement work done on its streets. (C. S., secs. 3999-4026, incl.)
Where a municipality has agreed to pay for improvement work done out of a fund realized by special assessment, and then by the negligence of the municipality the fund has not been realized after the municipality has repealed the benefits of its contract and obtained the improvement contracted for, the municipality is generally liable. ( District of Columbia v. Lyon, 161 U.S. 200, 16 Sup. Ct. 450, 40 L. ed. 670; Ft. Dodge Elec. L. P. Co. v. City of Ft. Dodge, 115 Iowa, 568, 89 N.W. 7; Barber Asphalt Pav. Co. v. City of Denver, 72 Fed. 336, 19 C.C.A. 139; Commercial Nat. Bank v. City of Portland, 24 Or. 188, 41 Am. St. 854, 33 P. 532; Barber Asphalt Pav. Co. v. Harrisburg, 64, Fed. 283, 12 C.C.A. 100, 29 L.R.A. 401.)
Constitutional debt limitations do not apply to indebtedness arising out of tort or an obligation imposed by law. ( Independent School Dist. v. Manning, 32 Idaho 512, 185 Pac. 723; Fort Dodge Elec. Co. v. City of Fort Dodge, supra.)
Respondents are the holders of warrants issued by appellants in payment of the construction of certain special assessment improvements consisting of sidewalks, curbs, etc., which warrants have not been paid because of the insufficiency of the special assessment fund. Bonds were not issued as provided in C. S., secs. 4014-4028, but warrants were under the provisions of C. S., secs. 3999-4013.
A majority of the lot owners have paid their assessment in full. Some have not paid anything. The lots owned by such delinquents are not of sufficient value, if sold under foreclosure of the lien of the warrants, to bring enough to take care of the deficit and appellants have sued the city claiming it is thereby directly liable.
If the obligation was in the first instance the city's it resulted in an excessive debt in violation of sec. 3 of art. 8 of the constitution. Respondents avoid this result by urging that the city was in the first instance not liable ( McGilvery v. City of Lewiston, 13 Idaho 338, 90 P. 348; Byrns v. Moscow, 21 Idaho 398, 121 P. 1034), but became so because of its negligence; hence the present liability sounds rather in tort than a direct action on the warrants. ( City of Mankato v. Barber Asphalt Paving Co., 142 Fed. 329; Little v. City of Portland, 26 Or. 235, 37 P. 911; Morris v. City of Sheridan, 86 Or. 224, 167 P. 593.) The negligence complained of is evidently that the properties, liable for the assessment, were not in all instances valuable enough to meet the proportionate share of liability. No neglect in making the estimate or contracts, or in levying or collecting the assessments is charged or proven.
Respondents cite, among others, the following authorities in support of their contention: District of Columbia v. Lyon, 161 U.S. 200, 16 Sup. Ct. 450, 40 L. ed. 670; City of Mankato v. Barber Asphalt Paving Co., supra; Barber Asphalt Co. v. Denver, 72 Fed. 336, 19 C.C.A. 139; Barber Asphalt Co. v. Harrisburg, 64 Fed. 283; Chicago v. People, 56 Ill. 327; Fort Dodge Elec. L. P. Co. v. Fort Dodge, 115 Iowa, 568, 89 N.W. 7; Reilly v. Albany, 112 N.Y. 30, 19 N.E. 508; Commercial Nat. Bank v. City of Portland, 24 Or. 188, 41 Am. St. 854, 33 P. 532.
All of the above cases are readily distinguishable from the case at bar, the same point being substantially raised in all, because in the above cases there was either no law permitting the special assessments or the city did not comply with the law or neglected some specific duty. See, also, Bucroft v. City of Council Bluffs, 63 Iowa, 646, 19 N.W. 807.
This court has specifically and repeatedly held that where a special assessment district is created and bonds issued, the same are not general obligations of the municipality. ( Byrns v. Moscow, supra; Feil v. Coeur d'Alene, 23 Idaho 32, 129 Pac. 643, 43 L.R.A., N.S., 1095; Boise Development Co. v. City of Boise, 26 Idaho 347, 143 P. 531; see, also, Moore v. City of Nampa, 18 Fed. (2d) 860, 276 U.S. 536, 48 Sup. Ct. 340, 72 L. ed. 688.) The statutory provisions as to the extent of the lien and obligations of warrants and of bonds are substantially the same; hence the conclusion upon a parity of reasoning is inevitable that special assessment warrants are not general obligations of the municipality, and no negligence of the municipality having been plead or proven, it has not become liable-thereby.
The judgment is reversed and remanded, with instructions to enter judgment for appellants. Costs awarded to appellants.
Budge, C. J., Wm. E. Lee, J., and Baker and Adair, D. JJ., concur.