Opinion
No. 5625.
December 20, 1930.
APPEAL AND CROSS-APPEAL from the District Court of the Tenth Judicial District, for Nez Pence County, Hon. W.F. McNaughton, Trial Judge.
Appeal from a decree affirming an order directing the making of certain improvements in an improvement district and dismissing the appeal therefrom. Judgment for defendants. Affirmed.
Tannahill Leeper, R.E. Durham and George E. Erb, for Appellant and Cross-respondent.
A general agent has power to sign a remonstrance. (Mechem on Agency, 2d ed., secs. 739, 798; Duncan v. Hartman, 143 Pa. St. 595, 24 Am. St. 570, 22 Atl. 1099; Sencerbox v. First Nat. Bank, 14 Idaho 95, 93 P. 369; Fishbaugh v. Spunaugle, 118 Iowa, 337, 92 N.W. 58)
Guardian is manager of estate and has authority to sign remonstrance. (C. S., secs. 7858-7862; Remington's Washington Statutes, sec. 1576; Page Jones on Taxation by Assessment, sec. 788; Allen v. City of Portland, 35 Or. 420, 58 P. 509.)
The signature on a remonstrance need not be the personal act of the owner, but may be accomplished by an agent. (Page Jones on Taxation by Assessment, p. 787; Gleason v. Barnett, 115 Ky. 890, 61 S.W. 20.)
The purported withdrawal of Mrs. C.W. Shaff is not valid. ( State v. Porter, 145 Ala. 541, 40 So. 144.)
A vendee in possession is an owner under the assessment statute. ( Shaw v. Goben, 167 Mo. App. 125, 151 S.W. 209; Page Jones on Taxation by Assessment, p. 786; Ahern v. Board of Improvement Dist. No. 3, 69 Ark. 68, 61 S.W. 575; Miller v. Imperial Water Co., 156 Cal. 27, 103 P. 227, 24 L.R.A., N. S., 372; McQueen v. City of Moscow, 28 Idaho 146, 152 P. 799.)
Verner R. Clements and Marcus J. Ware, for Respondents and Cross-appellants.
While a property owner may protest against an improvement through an agent, the protest to be effective must be made by a duly authorized agent of the property owner. (Page Jones on Taxation by Assessment, p. 787; Gleason v. Barnett, 115 Ky. 890, 61 S.W. 20; City of Columbus v. Sohl, 44 Ohio St. 479, 8 N.E. 299; Findley-Kehl Inv. Co. v. O'Connor, (Mo.) 256 S.W. 798.)
The ratification by the property owner of a protest signed by one purporting to be his agent is ineffectual where the ratification is made after the time set for the hearing on the proposed improvement. ( Kansas City v. Cullinan, 65 Kan. 68, 68 Pac. 1099; Minor v. Board of Control, 20 Ohio C.C. 4; Lipscomb v. Blanz, 163 Ark. 1, 258 S.W. 624.)
A guardian has no authority to protest against an improvement unless authorized by order of the court of his appointment. (C. S., secs. 7842-7883; 1929 Sess. Laws, chap. 279; Gerber v. Bauerline, 17 Or. 115, 19 P. 849.)
The authority of a guardian is not recognized beyond the limits of the jurisdiction of the state of his appointment, except so far as such recognition is expressly conferred by statute. ( Morgan v. Potter, 157 U.S. 195, 15 Sup. Ct. 590, 39 L. ed. 670; 1 Cooley's Constitutional Limitations, 8th ed., p. 63.)
No particular formality is required in the execution of a protest, and hence no particular form is required for the withdrawal thereof as long as the intent of the property owner is made manifest thereby. ( Los Angeles Lighting Co. v. City of Los Angeles, 106 Cal. 156, 39 P. 535.)
A property owner protesting against a proposed improvement may withdraw his protest at any time before final action thereon. ( McQueen v. Moscow, 28 Idaho 143, 152 P. 799; Davis v. Henderson, 127 Ky. 13, 104 S.W. 1009; County Court v. Pogue, 115 Ill. App. 391; Cowles v. School District, 88 Kan. 603, 129 Pac. 176; City of Sedalia v. Montgomery, 109 Mo. App. 197, 88 S.W. 1014; Id., 227 Mo. 1, 127 S.W. 50; State v. City of Independence, 114 Kan. 837, 221 P. 245.)
Hawley Worthwine, Amici Curiae.
The City of Lewiston under its special charter, 1907 Sess. Laws, 349, initiated a paving improvement district, the expenses to be a charge against the property included within such improvement district.
The controversy herein, resulting from the opposition of certain taxpayers, involves only the question of how many property owners there were in such district, the validity of certain remonstrances and withdrawals of remonstrances, and the time when remonstrances or withdrawals might be filed with, and considered by the city council.
In compliance with sections 172-200 of the special charter, the date before which remonstrances had to be filed was fixed as 10 o'clock A. M. September 16, 1929. At that time, as it was afterward determined by the council, and the trial court upon appeal found upon sufficient evidence, thus disposing of this phase of the controversy, there were ninety-seven property owners within the territory of the proposed improvement district.
The appellant contends that there should have been counted as valid, the remonstrances filed by Arthur E. Clarke, as executor of the estates of J.P. Vollmer and S.E. Vollmer, respectively; five escrow vendees; two remonstrances filed by S.O. Tannahill as agent for the estates of Clara H. Kilham and Anna L. Brannon, respectively; and John Applewhite as the attorney or agent of F.W. Webster; and that the withdrawal of Mrs. C.W. Schaff from her previously filed remonstrance should not have been considered.
All of the withdrawals or remonstrances specified were on file prior to 10 o'clock A. M. September 16, 1929. At that time when the council met, the meeting was adjourned until 7:30 that evening, at which time two additional remonstrances had been filed, one by the Lutheran Church, and one by Dave C. Harvey. Four withdrawals had been filed by Iva S. Morton, W.E. Thayer, Franklin Grant and Wayne 11. Carpenter.
Appellant takes the position that these withdrawals should not be considered because filed too late, but that the remonstrances should have been considered. The city inclines to the opposite view.
The charter, section 170, provides that if more than one-half of the owners of property remonstrate, the improvement may not be made. To organize the district no petition is necessary. The only action contemplated on the part of the property owners is thus of a negative nature, and is to prevent the formation of the district.
A.E. Clarke was the only executor of the two Vollmer estates in this state, C. S., 7481, and by agreement of the other executor and the heirs and devisees he had the sole management and control of the estates, which justified the trial court in considering him as qualified to sign a remonstrance as property owner.
McQueen v. City of Moscow, 28 Idaho 146, 156, 152 P. 799, holds that a vendee under a contract for the sale of realty may sign a petition for a municipal improvement if the vendor has not signed it. In spite of respondent's ingenious argument, this holding is controlling herein and there is the additional justification for such holding that under the terms of the escrow agreements herein, the vendees were obligated to pay for any charges, of the kind these special improvement taxes were, which might be made against the property. What the situation would be if the vendee had signed a protest and the vendor affirmatively opposed it, we need not, and do not consider. The court was justified in counting the remonstrances filed by these escrow vendees.
Appellant contends that Mrs. Schaff's withdrawal was not sufficient or explicit. It should be kept in mind that no petition is necessary to organize the district, silence amounting to acquiescence. Mrs. Schaff's statement that she desired "to be neutral" therefore had the effect of withdrawing her protest.
With regard to the agency of Mr. Tannahill, for the estate of Clara H. Kilham, and Mr. Applewhite, for the guardian of F.W. Webster, the oral testimony justified the court in finding that they did not have sufficient authority to sign as agents for the respective parties they purported to represent ( Thorn v. West Chicago Park Com., 130 Ill. 594, 22. N.E. 520; Findley-Kehl Inv. Co. v. O'Connor, (Mo.) 256 S.W. 798), and under the well-known rule such findings will not be disturbed.
It thus appears that at 10 o'clock A. M. September 16, 1929, there were in the district ninety-seven property owners, and forty-seven valid remonstrances on file. Thus there were not "on or before the date of the meeting" more than one-half of the property owners who had remonstrated.
It is unnecessary to decide whether remonstrances or withdrawals might be filed after the date set for the hearing, namely 10 o'clock A. M. September 16, 1929, because a protest of a property owner may be withdrawn so long as the right to protest is open. ( Salt Lake Ry. Co. v. Payson City, 66 Utah, 521, 244 P. 138; Mosher v. City of Phoenix, 25 Ariz. 297, 216 Pac. 242; City of Valdosta v. Harris, 156 Ga. 490, 119 S.E. 625.) Hence if the withdrawals and protests filed after 10 o'clock A. M. September 16, 1929, be both counted or not counted, the result would not be changed.
This conclusion likewise renders it unnecessary to discuss the specific withdrawal of Wayne Carpenter, and, the court was justified in affirming the action of the city council in organizing the improvement district.
Judgment is affirmed. Costs to respondent.
Budge, Lee, and Varian, JJ., and Featherstone, D.J., concur.
McNaughton, J., was disqualified.
Petition for rehearing denied.