The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-06-14
Jockey WINS.
i Permanent Injunction Granted
~ Judge Hunt Against City
Treasurer Walker.
tn Oonstitution Was Infringed In
paesiur Ordinance Not Oon-
tanning Notice.
X nitv Inv which Infrin9ea b Ccnsti-
ss,isaal Rights Or Owner Of
Property.

i parmansnt Injunction has been granted
RiohaYd Jockey restraining City Treasurer
Waiker from selling any part Of Mr.. Lock
80 ptopsrty for special taxes for the open
M II Lawrence street. In rendering his
crl!n ion, Aftsr rsciting q number OF author
ities. Judss Hunt says: II deduce from
those Cited that the rule that when the CITY
Il Helena assessed tho property OF the
plaintiR without giving him any notice OF
IN tims and place Of meeting Of the COM
r~ieslonera who made the assessment, they
acted beyond the powers vested in them
underyths law, and furthermore, that when
~ city passed the ordinance which per-
mitted assesGments to DO made without
notice, they enacted an ordinance which
infrirced the constitutional rights of the
M Of property, and did that which the
court 10 constrAinsd to hold was in viola
sion st their powers and Of the constitu-
1ion 81 The state. The ordinance 10 there
tore invalid and the proceedings under II
ars null and void.
Ut becomes unnecessary TO render any
cpinion upon the power Of the CITY to sell
ths property OF the plaintiff. but doubt as
10 whether the power to levy and collect
under 4 special ordinance, even assuming
snoh ordinance 10 bs valid. carries with it
lhs right TO sell the property OF the delin-
ousnt for tho amount Of such special tar.
The ordinances provide that special taxes
BE- levied and collected az general city
aaxss are. The only provision for the levy
and, collection Of general taxes permits a
sale TO DO had in February. I cannot I'M
lsrstand how II is within the power Of the
city treasurer. to disregard the time fxed
Tor asale H. shs general ordinances, and to
sell the plaintiffs property At 3 time srbi-
trarily fixed By the city councll. 1t the city
can disregard one provision Of tho general
ordinance as TO manner Of sale. why may it
not disregard others?
I'm the present case the charter Of Hell
INA provides for the levy and collection Of
spscial taxes in the same manner as general
taxss are collected. Without the general
therefore, no power can pos
sibly sxist TO sell. and under the general
ordinances no power to sell exists, except
upon l certain day Of February, Of each
year, and then only sitter due notice by the
Assasurer, and after equalization by the
council a . stated time. So that upon the
assumption that the special levy for bene-
ITS 10 property on Lawrence street is valid
ma constitutional, We find in the procedure
BY the treasurer in this case. under the
special ordinances authorizing the sale for
delinquent taxes. . material departure from
the only time granted wherein property
may be sold for taxes ut all. and a total
disregard of the provision of the general
ordinance which permits the sale only in
February, and whsnoe alone any power to
81 August 8, 1880, in relation to special as
sessments would seem to have been much
more carefully framed in its regard
to the rights Of property owners, a. in add.
ton to provisions tor fair notice in relation
80 assessments it provided that amounts
unpaid for special Assessments should be
certified BY tho treasurer and should be
year Is = special assessment against the
lots named in the certificate, and such as
ssssment should be collected in the same
manner that general city taxes are collected.
That general ordinance may be unconstitu-
tionsl, but had the cepnoil opened Lawrence
street under its provisions it would seem
plain that the vital question OF notice,
court in the present case. could not posi-
bly, haze arisen. / Am of opinion that it is
reaching quite far-perkaps too far-to
hold that under q general power to sell for
general taxes ut q particular time the right
TO permit the sale for a special tax at q diff
ferent time 10 comprehended within the
terms Of the charter OF the city of Helena.
There il at least a grave doubt as to suoh a
right, and in the cases of special assess
ments by all the authorities where such a
doubt exists it must be resolved against the
city. The injunction will be made perna-
nent and it il 80 ordered by the court"
In October. 1891, the city council passed
m ordinance providing for the condemna-t
tion Of property for the purpose OF OPEN
ing Lawrence street. The city was to pay
one-third Of the cost Of the land when
condemned and the cost of grading when
opened. The other two-thirds was to be paid
by . special tax levied on property bene-
fitted, abutting on Lawrence street and on
Main street. In March. 1892, the council
passed another ordinance, levyine a special
tax for tho purpose of opening Lawrence
street. Mr.. Jockey claimed hat the city
entered into an arrangement unknown to
him. md of which he had no notice,
wherein the city agreed to pay certain prop
erty owners about &c. 1000, which was in
excess of the value of the ground taken,
n which agreement WAS in violation of
the power and authority OF the city. He
says he signed no petition for the opening
of the street, and had no notice of the con-
domination.
Numerous cases were cited showing that
the great weight Of authority ia to the eff
9ect that no person can be deprived of his
life, liberty or property without being given
notice and an opportunity to be heard.
RAILROAD LAND CASE.
The Character of Northern Pacific Lands
Must he Determined by Evidence.