No. 5017.

18 F.2d 860 (1927)


Circuit Court of Appeals, Ninth Circuit.

April 18, 1927.

Attorney(s) appearing for the Case

Karl Paine, of Boise, Idaho, and Myles P. Tallmadge, of Denver, Colo. (Pershing, Nye, Tallmadge & Bosworth, of Denver, Colo., of counsel), for plaintiff in error.

Leon M. Fisk and D. L. Rhodes, both of Nampa, Idaho, for defendant in error.

Before GILBERT and RUDKIN, Circuit Judges, and KERRIGAN, District Judge.

GILBERT, Circuit Judge (after stating the facts as above).

The plaintiff contends that the defendant is liable in damages as for tort, and he asserts that his cause of action sounds in tort, and is based on the proposition that the defendant had the power so to conduct the proceedings that valid assessments would have resulted for the payment of the bonds, and that because of negligent acts and omissions of the defendant and its officers in exercising the granted powers the assessments failed, and the plaintiff was deprived of his statutory remedy against the property in the district. There is no allegation that the money which he paid upon his purchase of the bonds was in the possession of the defendant, or remained undisbursed, and no fact is pleaded from which it might be deduced that the plaintiff was entitled to recover as for money had and received, as was held in Hitchcock v. Galveston, 96 U.S. 341, 24 L. Ed. 659, Louisiana v. Wood, 102 U.S. 294, 26 L. Ed. 153, Incorporated Town of Gilman v. Fernald (C. C. A.) 141 F. 941, Hoag v. Town of Greenwich, 133 N.Y. 152, 30 N. E. 842, and Dodge v. City of Memphis (C. C.) 51 F. 165, 167. But the plaintiff seeks to charge the defendant with liability solely on account of alleged acts of negligence of its officers, and thus impose upon the general taxpayers of the city responsibility for the payment of local improvement bonds and defeat the protective purpose of the statute, whereby by express terms the general taxpayer is relieved of all liability for the cost of the local improvement; there being no contention that the money received here was diverted to a corporate purpose, or was used in such manner as to create an obligation on the part of the defendant to repay it.

Section 4151 of the Idaho Compiled Statutes of 1919 provides that the holder of bonds issued for a local improvement, such as that which is here involved, "shall have no claim therefor against the municipal corporation by which the same is issued in any event, except for the collection of the special assessment made, for the work of improvement for which said bond was issued, but his remedy, in case of nonpayment, shall be confined to the enforcement of such assessment." The bonds which were issued to the plaintiff contained the recital of that provision of the law. It is to be borne in mind that the officers of the defendant, in making the improvement, were not performing corporate functions of the defendant. They were exercising a special power vested in them with reference to local improvements, in which the city as a whole was not concerned. In doing so they were successors to powers which prior to 1917 had been exercised through a "sewer construction committee," distinct from the city council, appointed for the purpose of authorizing and carrying out sewerage improvements. In all the transactions here involved they were but instrumentalities for originating, carrying out, and paying for the expense of local improvements, the cost of which was assessable against the property benefited thereby. In this fact is an insuperable obstacle to the right of the plaintiff to recover herein, for the officers of the city were not acting on its behalf, and they had no authority to bind it by any act or failure to act in the premises.

It is well settled that municipal corporations possess no inherent power to levy assessments for local improvements, and that their only authority to do so is to be found in legislative acts. 25 R. C. L. 88. And it is uniformly held that in collecting money to pay for special improvements, where there is no liability against the corporation, the corporation authorities do not act as its representatives, but as special agents or instrumentalities to accomplish a public end. Quill v. City of Indianapolis, 124 Ind. 292, 23 N. E. 788, 7 L. R. A. 681; Town of Capitol Heights v. Steiner, 211 Ala. 640, 101 So. 451, 38 A. L. R. 1264; City of Bainbridge v. Jester, 157 Ga. 505, 121 S. E. 798, 33 A. L. R. 1406; Town of Windfall City v. First Nat. Bank, 172 Ind. 679, 690, 87 N. E. 984, 89 N. E. 311; Beggs v. Kelly, 110 Okl. 274, 238 P. 466; Gagnon v. City of Butte, 75 Mont. 279, 243 P. 1085; Broad v. City of Moscow, 15 Idaho 606, 99 P. 101. In Town of Windfall City v. First Nat. Bank the plaintiff sought to fix liability upon the town upon the allegation that the assessments were invalid and not legally collectible, and that the town was not proceeding under the general powers vested in it for the improvement of its streets. In Town of Capitol Heights v. Steiner the complaint alleged negligent failure of the officers of the town to make a sufficient assessment. In Broad v. City of Moscow the plaintiff claimed damages for the alleged failure of the city to deliver the bonds at the date of the completion of his contract. In Gagnon v. City of Butte it was alleged that the city had failed and neglected to collect the delinquent assessments or pay the bonds.

The case differs from Bates County, Mo., v. Wills (C. C. A.) 239 F. 785, relied upon by the plaintiff. In that case, while it was expressly stipulated that the contractor should be paid out of funds realized from special assessments against the property benefited, there was no statutory prohibition against a general levy to pay the contract price, and the court affirmed the power of the municipal corporation to make such general levy.

We find no error in the ruling of the trial court in sustaining the demurrer on the ground above indicated, and we find it unnecessary to consider the other ground of demurrer.

The judgment is affirmed.


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