Ogden City v. Armstrong
The original bill in this case was filed in May, 1892, in the Fourth judicial district court of the late territory of Uath, against Ogden City, a municipal corporation, and its mayor and the members of its common council; and it was thereby sought to restrain the city and its officers from levying assessments upon the real estate of the plaintiffs and other similarly situated, for the purpose of paving a portion of one of the streets of the city.

To this bill a demurrer was filed, which was sustained by the district court, and a judgment was entered dismissing the bill. On appeal to the supreme court of the territory, that judgment was reversed, and the cause remanded to the court below. 34 Pac. 53. An answer to the bill was then filed, denying substantially the equities of the bill. Subsequently, on April 9, 1894, a supplemental bill was filed, bringing in additional parties complainant, and alleging that, since the filing of the original bill, the defendants had passed the ordinance assessing the properties of the plaintiffs, and were about to expose to sale the real estate described in the original and supplemental bills to satisfy the assessments, and threatened to continue to sell said real estate annually for 10 years as each installment of said assessment became due, whereby the plaintiffs had been compelled to pay certain amounts, stated in detail, in order to prevent a sale of their property, and to prevent a cloud upon their titles; and that certain real estate belonging to some of the plaintiffs had been sold by the city to satisfy the illegal assessments. The prayers were for a decree declaring the ordinance and assessments to be void, restraining the defendants from proceeding thereunder; that an account be ordered of the amounts paid by plaintiffs under protest; that plaintiffs have judgment for the same; that the sales of real estate be set aside; and for general relief. An answer was filed to the supplemental bill, denying specifically all of its allegations, but admitting that the ordinance in question was passed as alleged. It alleged affirmatively that the plaintiffs were estopped to complain as in the supplemental bill alleged; that the same did not state facts sufficient to constitute a supplemental complaint; that the cause of action was barred by the statute of limitations; that there was a misjoinder of parties plaintiff, and that there was a misjoinder of causes of action.

On the 27th day of October, 1894, findings were signed, and judgment entered, giving the plaintiffs the relief prayed for in both the original and the supplemental bill. The decree of the court below was on appeal affirmed by the supreme court of the territory (43 Pac. 119), from whose decree an appeal was taken and allowed to this court.

The findings of fact were as follows:

'(1) That the plaintiffs were, at the date of the filing of the complaint in this action, residents and taxpayers in Ogden City, Weber county, Utah territory, and brought this action, concerning a matter of general interest to all taxpayers in said Ogden City, on their own behalf and on the behalf of all others similarly situated.

'(2) That the defendants, except Ogden City, at the time of the bringing of this action, were the mayor and members of the common council of said Ogden City, defendant.

'(3) That on the 7th day of March, 1892, proceedings were had by the common council of said Ogden City, as follows:

'Finance committee recommending immediate creation of three paying districts, as follows: District No. 2, Twenty-Fifth street, from the west line of Washington avenue to the west line of Wall avenue.

'Councillor Dee moved to lay on the table for one week. Motion lost.

'Councillor McManus moved to adopt the motion. Carried.'

'(4) That the above were the only proceedings had by said council of Ogden City in regard to the creation of said paying district prior to the publication of the notice hereinbelow mentioned; and upon the same day the following proceedings were had:

'Councillor Spencer moved the following motion, in pursuance of the proceedings already taken in ordering the creation of three paving districts: 'I move that the council adopt the accompanying notice of intention, and that the same be published for twenty days, beginning with to-morrow morning, Tuesday, March 8th.' Said notice was read, and Councillor Dee moved to lay on the table for one week. Motion lost; Dee and Elliott voting 'Aye'; Calvert, Cannon, Graves, McManus, Shurtliff, and Sepencer voting 'Nay.' The original motion was then put and carried; Calvert, Cannon, Graves, McManus, Shurtliff, and Spencer voting 'Aye,' and Dee and Elliott voting 'Nay.' '(5) That thereupon, on March 9, 1892, in the Ogden Daily Standard, the following notice of intention mentioned above was published, to wit:

'Notice of intention of the city council of Ogden City of creating a district for paving and of paving and macadamizing the streets therein, and to defray the expenses of such improvement by local assessment.

'The city council of Ogden City, situate in the county of Weber, territory of Utah, gives notice that it intends to make the following improvements, to wit, pave and macadamize the following streets: Twenty-fifth street, from the west line of Washington avenue to the west line of Wall avenue. This district shall be known as 'Paving District No. 2.' The boundaries of the district to be affected and benefited are the lines running one hundred and fifty feet back and parallel with the outer lines of each side of the streets on each and every block, and for the full lenght thereof therein. The estimated cost of such improvement is $40,000. For the payment of the costs and expenses thereof, the city council intends to levy local taxes upon the real estate lying and being within said paving district, and to the extent of the benefits to such property by reason of such improvement. The city council will, on March 29, 1892, at 10 a. m., hear objections in writing and from any and all persons interested in said local assessment. By order of the city council.

"T. P. Bryan, City Recorder.'

'(6) That on March 29, 1892, at 9:55 o'clock, D. H. Peery and sixty-eight others, including all the plaintiffs in this action and in the supplemental complaint, who were then the owners of real property within the said paving district No. 2, and with frontage on Twenty-Fifth street within the said paving district, filed a protest with the said recorder of said Ogden City, protesting against the levying of any local assessment against or upon their property for the purpose of paving said street within said district; that said persons so protesting owned and protested for more than one-half of the whole frontage on said Twenty-Fifth street within said district, to wit, 2,414 feet; that, after said hour of 10 a. m. of said day, certain persons who had protested to the amount of 302 1/4 feet withdrew their protests, leaving at all times 2,111 3/4 feet frontage on said Twenty-Fifth street in said district still protesting against the said local assessment; that the total number of feet fronting on said Twenty-Fifth street in said paving district, as mentioned in said notice of intention above set forth, was 3,960, of which 660 feet belonged at said time, and still belong, to said Ogden City, and were then and are now used for public purposes by the said city, and 125 feet of said frontage were then, and are now, the property of the said Ogden City, and was public school property, used and owned for public schools.

'(7) That notwithstanding said protest of said abutting property owned on said Twenty-Fifth street in said paving district No. 2, and without giving any other or further notice except as hereinbefore stated, the said city council, on the 4th day of April, 1892, passed the following resolution, to wit:

"Resolved, that the city proceed as speedily as possible to the paving of Twenty-Fifth street district with Utah sandstone blocks; that the city engineer be instructed to prepare the necessary specifications at once, and submit the same at the next meeting of the council; that the competition of said work be restricted to bona fide residents of Ogden; and that, so far as it is possible, only Ogden labor be employed in the performance of the work.'

'(8) That on May 2, 1893, said city council of Ogden City passed a resolution instructing the city recorder to advertise for bids for the paving of Twenty-Fifth street, in said district, which notice was as follows:

'To paving contractors: Bids will be received by the city recorder of Ogden City until 12 o'clock m. May 23, 1892, for the paving of Twenty-Fifth street, in Ogden City, from Washington to Wall avenue, according to the specifications of the city engineer of Ogden City, on file in the city recorder's office. Competition is restricted to bona fide residents of Ogden City. The city reserves the right to reject any and all bids. Specifications will be furnished on application to the city recorder.' '(9) That no specifications had been made by the city prior to this time, but afterwards new specifications were made and filed, providing for the paving, grading, and curbing of said Twenty-Fifth street, and were adopted by the city council, which specifications provided for the paving of said street with asphaltum and the sides of the street with sandstone blocks and curbing the street, and the contract which was awarded for the doing of said work provided that the contractor should keep the said street in repair for two years after the work upon the same was finished.

'(10) That the plaintiffs in this action were at the date of the filing of the complaint herein, to wit, May 21, 1892, the owners of the real property mentioned in the complaint; but upon the trial of this action it appeared that John Broom and William Chapman were deceased. Samuel Chapman, administrator of the estate of William Chapman, and Hester Broom, administratrix of the estate of John Broom, were substituted as plaintiffs, and said other parties were still the owners of the property mentioned as belonging to them in the complaint in this action.

'(11) That said plaintiffs had, upon filing their complaint, obtained a temporary injunction against the said defendants, but afterwards a demurrer to said complaint was sustained by the said court, and said complaint ordered dismissed, which ruling was afterwards by the supreme court of the territory of Utah reversed, and the said cause was ordered remanded, with directions to the defendant to answer said complaint.

'(12) That the said council, in spite of the protest hereinbefore mentioned, proceeded, and at the time of the filing of the complaint in this action had, upon its passage, the ordinance attached as Exhibit B to the complaint in this action, and afterwards, on the 22d day of March, 1893, passed the ordinance which is hereto attached, and marked 'Exhibit A,' and made a part of these findings.

'(13) That on the 9th day of April, 1894, the plaintiffs filed a supplemental complaint in this action, and asked that Mathias Biel, Joseph Clark, George W. Lashus, Lamoni Grix, Carl Sorenson, J. E. Horrocks and Ann Horrocks, J. S. Lewis, Lindsey R. Rogers, Patrick Healey, Joseph Morely, Zilpha J. Stephens, W. C. Warren, Almira C. Baker, D. H. Stephens, Mary A. Stephens, Elizabeth Stephens, and the Ogden Union Depot & Railway Company, a corporation, be made parties to this action, which supplemental complaint was ordered by the court to be filed; that, at the time of the filing of the supplemental complaint, the said parties (except the Ogden Depot & Railway Company, a corporation) were, and still are, the owners of real estate fronting on said Twenty-Fifth street (and said plaintiff last named was the owner of real estate assessed with said special tax, but not included in said paving district), included in said paving district; and upon the trial of this action D. H. Peery, Jr., and the Realty Company of Kittery, Maine, a corporation, and J. Pingree and Zilpha J. Stephens, Carrie Lewis, and George W. Murphy were added as parties plaintiff, and were at the date, and still are, the owners of real estate in said district fronting on said Twenty-Fifth street, the pleadings having been allowed to be amended by the court in accordance with such facts.

'(14) That said Ogden City, in pursuance of said ordinance of March 22, 1893, was about to expose the real estate described in the original and supplemental complaints to sale, to satisfy the illegal assessment imposed by said ordinance; and that the parties plaintiff in this action, after their said property had been advertised for sale, and was about to be sold, to satisfy the said illegal assessment then due, paid under protest to said Ogden City, in order to prevent the sale of their property, the following amounts, to wit: J. C. Armstrong, $95.04; Mathias Biel, $63; Joseph Clark, $48; Samuel Chapman, for the William Chapman estate, $49.20; Joseph Clark, for Clark, Emmet, and Thompson, $30; William Driver, $60; H. I. Griffin, $23.76; Lamoni Grix, $24.90; Ann Horrocks and James E. Horrocks, $124.80; Geo. W. Lashus, $60; H. D. and J. S. Lewis, $82.00; Carrie Lewis, $30; Joseph Morely, $36; Patrick Healey, for Patterson and Healey, $30; Jeoseph Clark, for Patterson and Clark, $60; L. R. Rogers, $74.04; J. H. Spargo, $48; D. M. Stephens, $14.70; Carl S. Sorenson, $20.40; W. C. Warren, $48; Geo. M. Kerr, guardian of the Nichols heirs, $160.08; D. H. Peery, Jr., $24; Realty Company, of Kittery, Maine, $748.80; Job Pingree, $35.40; Ogden Union Depot and Railway Company, a corporation, $118.80; Geo. W. Murphey, $154.20.

'(15) That said plaintiffs are without any speedy and adequate remedy at law for the recovery of said amounts without a great multiplicity of the suits, and said assessment constitutes a cloud upon the title of the various plaintiffs to their several parcels of realty, and that said city asserts that it will annually, for nine years hereafter, levy assessments upon said real estate for the payment of said paving, and collect the same from the said parties plaintiff, and has already caused to be sold the property of certain of the plaintiffs under and by virtue of said assessment.

'(16) That the number of feet frontage in said paving district was 3,300, as the same is described in the ordinance (Ex. A); that the difference between the district described in the ordinance and the district described in the notice of intention consisted of 660 feet of the public property of the said Ogden City, and the lots affected by the said assessment and described in said ordinance varied in depth, some being 75 feet deep, and others 150 feet deep, and that the property owned by the various parties plaintiff in this action varied greatly in depth; that no ascertainment of actual benefits to the property assessed was ever made in order to determine the amount of assessment, or to determine whether the amount assessed exceeded the actual benefits to the property by reason of the improvement, but the cost of the improvement was assessed upon the property abutting and fronting upon Twenty-Fifth street within the said paving district at an arbitrary rate of $12 per front foot, without any finding or attempt to find the amount of actual benefits to the property; that the said improvement was made without any general plan and form of public improvement having been adopted by the said Ogden City, and the actual benefits to the property assessed for said improvement were not equal and uniform, nor was said assessment equal and uniform.' R. H. Whipple, for appellant.

E. M. Allison, Jr., for appellees.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
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