77 Vt. 420 | Vt. | 1905
The orators seek an injunction perpetually restraining the defendant from taking and selling the orators’ land or any part thereof to- satisfy certain assessments made thereon for paving a portion of Main street, and from taking-any further steps to collect said assessments, and to remove the cloud consequent on the same from the orators’ title. The case is here on demurrer to the bill, hence all matters well pleaded stand admitted.
Section 13 of the charter provides for a standing committee of the board of aldermen on streets and highways to consist of three members of the board, and that the members of such standing- committee shall constitute the board of street commissioners. By this section also, “Whenever a petition in writing shall be presented to the city council, signed by the owner or owners of two-thirds of the frontage upon any street, lane or alley in said city, or of any portion of such street, lane or alley, particularly describing such street, lane or alley, or portion thereof, and praying that the same may be drained, graded, paved or macadamized, curbed and guttered, or that any of such improvements may be made, or when the city council, by resolution duly passed, shall decide that the public good, and the convenience and necessity of individuals demand that any street, lane or alley, or any portion thereof, should be drained, graded, paved or macadamized, curbed and guttered, or that any of said improvements shall be made, the city council shall forthwith order and direct the street commissioners to cause such street, lane or alley, or such portion thereof, as shall be specified in such petition or resolution of said city council to be drained, graded, paved or macadamized, and curbed and guttered, as
It is alleged that the city council never decided, nor was there any judgment, decree, or finding, by it, that the public good, convenience and necessity of individuals demanded the said street, or portion thereof, should be drained, paved, curbed and guttered on a concrete foundation; but that on the 10th day of June, 1903, without any petition therefor from
“Resolved by the city council of the city of Barre, now in session, as follows, — that, whereas, it seems desirable that Main street, from its intersection with Prospect street to the National Bank of Barre, should be paved with granite blocks: Therefore, be it resolved that the street commissioners be and are hereby instructed to issue notice to abutting owners, hold hearings, hear the claims of those interested, and if, in their judgment, the public good and convenience and necessity of individuals demand it, to have said portion of Main street so paved, in accordance with the provisions of the city charter and city ordinances.”
That this resolution purports to have been adopted June ioth, 1903, and approved on the same day by the mayor; that the city council, by resolution, did not order and direct the street commissioners to cause said street, or such portion thereof as is specified in said resolution, to be drained, graded, curbed and guttered, or to place in said highway concrete foundation for said pavements; that the street commissioners on the 24th day of June, 1903, without authority in law, held a meeting to ascertain whether or not the public good, and the convenience and necessity of individuals demanded that said street, or a portion thereof, should be drained, graded, paved and guttered, and that said commissioners thereafter adjudged that the public good, and the convenience and necessity of individuals did demand that the portion of Main street, between Prospect street and the National Bank, should be paved with granite blocks on a concrete foundation, and that the abutting land owners, on said street, should be assessed for the same according to the provisions of the city charter
It is 'further alleged that on the 2nd day of November,. 1903, after the work had been completed, the street commissioners assessed the orator Blanchard’s lands and buildings on the frontage, in the aggregate $335.75, and the land and premises of the orator Averill, on the frontage, in the aggregate $211.21; that the -street commissioners have made up a statement of these assessments and caused the same to-be recorded in the city clerk’s office, and that said assessments, so recorded, have become a lien in the nature of a tax. upon the lands and buildings of the orators, and have become, by virtue of the record and the city charter, an incumbranceupon the property of the orator Blanchard for the sum of $335.75, and upon the property of the orator Averill to the-amount of $211.21; and that the city clerk has placed said list and assessments in the hands of the city treasurer for collection, and has notified the orators that unless the same shall be paid forthwith, the city treasurer will issue a warrant to-the constable of the city for collection.
Under the provisions of the charter, the city council have-jurisdiction to order and direct the street commissioners to-cause a street, lane or alley, or any portion thereof, to' be-drained, paved or macadamized, curbed and guttered only, (1) “When a petition in writing shall be presented to the-
The existence of either of these jurisdictional facts is negatived by the allegations in the bill. It is urged, however, that the resolution adopted by the city council June 10th, 1903, is in effect a direct finding by that body that, in its judgment, the public good and convenience and necessity of individuals require the street to be paved. But we do not think it is fairly subject to such construction; for, after stating “that whereas it seems desirable” that a certain portion of Main Street should be paved, it then expressly instructs the street commissioners “to issue notice to the abutting owners, hold hearings, hear the claims of those interested, and if, in their judgment, the public good and convenience and necessity of individuals demand it, to have said portion” of the street so paved, etc., in language too plain in meaning to' admit of doubt. This reference of the question excludes the idea that it had been determined by the city council, or that it was so understood by them.
The determination of the jurisdictional fact thus attempted to be referred is judicial in character, — Stearns v. City of Barre, 73 Vt., 281, 50 Atl. 1086, — and it cannot be delegated, the maxim of the law being delegatus non potest delegare. An individual clothed with judicial functions cannot delegate the discharge of those functions to another, unless he is expressly empowered to do so under specified circumstances. Felt- the
It is further contended by the defendant that on the case made out by the bill, the orators have adequate remedy at law, and there is no ground for relief in equity. By the provisions of the city charter, an assessment made upon lands or buildings, as a portion of the expense of paving a street, etc., shall be recorded in the city clerk’s office, and when so recorded, the amount so assessed shall be and remain a lien, in the nature of a tax, upon the lands or buildings assessed, until the same shall be paid. The bill alleges that the assessment against the orators’ lands and buildings has so become a lien thereon, and is a cloud on the title, to remove which a court of equity has jurisdiction.
The question is thus presented, whether the so-called lien is a cloud upon the title. If it is, there can be no doubt regarding equity jurisdiction; but if it is not, the orators cannot stand upon this ground for equitable relief.
These are session proceedings concerning the regularity of which nothing is presumed. The facts necessary to give jurisdiction must affirmatively appear. Kent v. Village of Enosburgh Falls, before cited. Since these facts are wanting the proceeding constituting the alleged cloud is void on its
The charter provides that an assessment shall be made ■“according to special benefits to such lands or buildings upon such street, lane or alley, or portion thereof, according to the frontage.” The bill alleges that the assessment was made according to frontage without reference to special benefit of the different properties, and the amount that each owner of land fronting said street was specially benefitted according to frontage. It further alleges that some of the property is very much more improved by way of buildings erected thereon than the orators’ and that some of the lots are deeper than the orators’, and that some lots contained two or three times the number of square feet contained in the land of the respective orators.
The power to make such assessments exists only when distinctly conferred by legislative authority, and where the mode of exercising the power is prescribed, it must be followed. And the assessment must affirmatively show, on its face, that it was made according to the rule prescribed; for the law regards it as of the substance of the proceedings, and we cannot treat it as immaterial, nor can presumption supply its place. Merritt, et al v. Village of Portchester, 71 N. Y., 309; Lieberman v. City of Milwaukee, 89 Wis., 336; Hayes v. Douglas, 92 Wis., 429; State, New Brunswick Rubber Co. v. Commissioners of Streets and Sewers, 38 N. J. L., 190; Nichols v. City of Bridgeport, 23 Conn., 189, 60 Am. Dec. 636.
The orators contend that the law under which the assessments were made deprives the land owners of their property without due process of law, and is therefore unconstitutional. But we have not considered this question, since it is a generally recognized rule that courts will not pass upon the constitutionality of a statute unless it is necessary to the final determination of the case.
The pro forma decree is reversed, and cause rerhanded with mandate that the demurrer he sustained, the hill adjudged insufficient and dismissed with costs.