14 Del. Ch. 185 | New York Court of Chancery | 1924
On September 28, 1889, William P.
Bancroft and wife and Samuel Bancroft and wife, being the
In the deed of the Bancrofts to the city the consideration named was one dollar and “the further consideration’’ that the city would construct along certain designated lines a sidewalk not less than eight feet in width and a roadway not less than thirty feet in width, to which the grantors in the deed, their heirs and assigns, should have free access with the right to use the same subject to such reasonable rules and regulations as might be made by the Park Commissioners of the city, or by any other department or board of the city having from time to time control over park lands. The Bancrofts owned other lands adjoining the tract so conveyed to the city, and in said deed of conveyance covenanted for themselves, their heirs, executors and administrators that they, their heirs and assigns would hold that portion of their land abutting upon said designated lines and to a distance of eighty feet therefrom subject to certain restrictions as to the kind, size, location and cost of buildings to be erected thereon, and as to certain business uses to which the same should not be put. Other restrictions imposed upon the grantors in the deed referred to the matter of fences, and projections to buildings such as porches, windows, etc.
Shortly after the execution and delivery of the deed the city of Wilmington acting through its Board of Park Commissioners proceeded to construct and did "construct the sidewalk and adjoining roadway as called for in said deed. The roadway so constructed is the same and the improvements thereon are likewise the same as the roadway and improvements upon which the special assessment and taxes, the collection of which is now sought to be enjoined, are based.
The park in question as well as the lands owned by the complainant have since been incorporated within the limits of the City
In 1917 the act was approved under which the assessments and taxes complained against are laid. That act as amended now appearsin Chapter 123, Volume 30, Laws of Delaware, and provides, inter alia, as follows:
“Section. 1. That there is hereby levied and imposed upon property in the City of Wilmington specially benefited by improved paving (said property being hereinafter specified), a special tax of the amount hereinafter specified, said tax to continue as to each property for the life of said improvement, not exceeding, however, ten years in any event, and the entire proceeds thereof shall be used for improving paving in the City of Wilmington.
“Section 2. That for the purpose of this Act all property in the City of Wilmington adjoining or abutting upon any public street which has been paved with improved paving without special assessment or payment of any part of the cost upon abutting or adjoining property owner, by the City of Wilmington, is hereby declared to be specially benefited by such improved paving to an extent greater than the entire amount of the special tax hereby levied thereon.”
Following the procedure defined in the act the Board of Directors of the Street and Sewer Department of the city levied and assessed against the complainant special taxes for the years 1918 to 1922, inclusive, acting upon the theory that the complainant as the owner of property abutting on the improved park drive was liable for the special assessment provided for by the act.
The case has been argued upon the assumption on the part of both sides to the controversy that the special tax authorized by the act in question is a tax designed and intended as a method of collecting from abutting property owners their proper share of the cost incurred by the city in the laying of the improved paving referred to by the act. This agreed point of view is, of course, accepted by the court, and there is therefore no occasion for discussing the consideration upon which it rests.
The complainant has refused to pay the taxes authorized by the act to be assessed on his property because, he contends, the city by reason of the provisions contained in the deed of the Ban-crofts to it in 1889 itself agreed to bear the expense of the improvement and exonerated the grantors in said deed and their successors from all charges therefor.
Against the contention of the complainant the solicitor for the defendants insists that, it was not competent for the city to bargain away its right to levy special assessments agairist the complainant’s property, and if it undertook to do so its1 act Was ultra vires and void.
What- the city agreed to do was to “construct" a sidewalk and roadway. The deed makes no express mention of how or by whom the cost thereof should be paid. That the city was to bear the. cost, however, I have no doubt was the intent of the parties, and the cause has been argued on the assumption by both parties that such was in fact the intent.
The question, therefore, is whether it was within the power of the city to agree to assume the cost of the improvements.and to relieve the grantors and their successors from all of the burden thereof. In 2 Elliott on Roads and Streets, (3d Ed.) § 678, it is said:
“In the absence of legislative authority a city, under ordinary circumstances at least, has no power to make contracts for the exemption or commutation of local assessments."
A municipal corporation has no power to make as a consideration for property conveyed to it for use as a court house an agreement that other land of the grantor should be forever exempt from taxation. Mt. Sterling v. Judy, 186 Ky. 689, 217 S. W. 911. Somewhat analoguous in principle is the case of Neal v. Decatur, 142 Ga. 205, 82 S. E. 546, where it is held that an agreement made by the city that if the defendant would grant a right of way for a sewer, the city would never make any assessments against him for future sewers, was ultra vires and of no effect to deprive the city of a right to assess the defendant for another and distinct sewer. These cases and others like them condemn as invalid all attempts on the part of a municipality to bargain away its general power to levy taxes or assess benefits in the interest of that portion of the public whose affairs are committed to its control.
Cases are cited by the defendants which are concerned with
In the instant case the principle established by these cases has no pertinency for the question presented by the facts has nothing to do with whether a -particular thing authorized to be
These cases which have been cited and strongly relied upon by the defendants in support of their contention, appear to be cases in which the exemption from assessment had reference to future improvements. The complainant emphasizes this feature as distinguishing the cited authorities from the case now before the court. His position is that a distinction is to be drawn between those cases in which the municipality assumes to grant exemption from the burden of present improvements and those in which the attempt is made to exempt from the burden of future ones, that the former is permissible while the latter is not. In none of the cases cited, however, does it clearly appear that such a distinction is recognized, and the decision made to rest thereon. In my judgment the distinguishing consideration which makes these cases inapplicable here is that to which I have hereinabove referred. Whether there is merit in the distinction suggested by the solicitor for the complainant, I do not pause to consider.
This is not a case where a local improvement of a city street is involved and a scheme is adopted of casting a portion of the burden of the cost thereof upon the abutting properties. If it were, and the usual plan were followed as in the cited cases, then it may be conceded that the equitable portion of the cost assessable against each property according as the estimated benefit and damage would determine would have to be imposed in obedience to the specified procedure. Where commissioners are designated to appraise the benefits and damages as the elements upon which to base the ultimate assessments, no other agency, not even the legislative body of the city, is permitted to do so. Such, as indicated, is the effect of the cases above cited.
But no question of this kind is involved in the present suit. For here the transaction between the city and the Bancrofts was in no wise related to a local municipal improvement designed to benefit both the city at large and those of its citizens who owned property abutting on or located in the neighborhood or district specially benefited by such improvement. There is no room in this case for the application of the principle which underlies the statutory law with respect to special assessments for local muni
Certainly if an individual had been the grantee in this deed instead of the city, the covenant to construct the roadway would have been binding and he would have no claim on the grantors to reimburse him a portion of his expense. The case being relieved from the questions which inhere in the situation where municipal improvements are authorized and its citizens both generally and locally are called upon to bear their just and proportionate share of the cost as ascertained in a prescribed manner, the city is as much bound to keep its covenant and as little entitled to compel its covenantees to share the expense incident thereto as would be an individual.
I know of no principle of law which would forbid a city authorized to purchase outside land for park purposes to agree as a consideration that it will do certain construction work thereon. The case of Vrooman v. City of Toledo, 5 Ohio App. 222, also 230, upholds the validity of a covenant in a deed on the part of the
The cases last referred to all recognize and rely on the principle that where a city in its deed of purchase covenants to do a certain thing,, it cannot thereafter call upon its covenantee to help defray
It is hardly necessary to observe that this opinion in no wise ignores the general rule first hereinbefore adverted to, viz., that a municipal corporation is without authority to bargain away its right to levy and collect taxes generally or to assess for improvement benefits locally.
The view taken with respect to the point thus far discussed, makes it unnecessary to prolong this opinion by a consideration of the other two points raised by the complainant, viz., (a) that the roadway in question is not a public street, but (b) if it is, the complainant’s property does not adjoin or abut upon the same.
Let a decree be prepared in accordance with the prayers of the bill.