City of Bridgeport v. Giddings

43 Conn. 304 | Conn. | 1876

Carpenter, J.

The city of Bridgeport extended and widened one of its streets, assessed benefits upon the land described in the petition, and took the steps necessary to secure and perpetuate a lien thereon for the benefits so assessed. The sum assessed not having been paid, this petition is brought for a foreclosure.

The validity of the proceedings is objected to on several grounds.

1. That the assessment as finally made by the board of review, organized and appointed pursuant to the charter, was never published or recorded, and no notice of the assessment was ever given to the then owner of the land.

The assessment was made in the first instance by three appraisers appointed under the 33d section of the city charter. Notice of the time and place was duly given, and the assessment when made was duly published. More than one-third of all the persons assessed appealed to the board of revievt, and it thereupon became the duty of that board to re-assess and re-adjust the several assessments of all the persons previously assessed therefor, which was done accordingly. From the doings of that board the charter provides for no appeal, their decision being final. The charter does not require that their assessment shall be published, or that notice thereof shall be given to the persons assessed. There is no complaint that the owner was not notified of the time and place of hearing, and presumptively he had such notice. We think that he was bound to take notice of the result, and that the proceedings are not void for the reason that the result was not published.

The charter requires that the doings of the board of review shall be recorded, and this provision was not complied with. The object of recording was not to give constructive notice to parties interested, but to preserve it in more durable form and guard against the liability of loss.

We are inclined to think therefore that the omission of the clerk to record it does not invalidate the proceedings.

2. The respondents further object to the validity of the proceedings on the ground that the provisions of the charter relative to the appraisal and assessment of benefits are unconstitutional, for the reason that the appraisers and board of review consist of freeholders of the city, and that being freeholders they must necessarily be tax-payers, and being taxpayers they cannot be disinterested.

Counsel do not tell us what provision of the constitution is violated, and we do not readily perceive the force of this objection. The charter seems to contemplate that the amount of damages assessed for any such improvement shall or may be assessed upon persons specially benefited. Freeholders of the city who have no land to be affected by the improvement, and who are not related to any of the parties who have, can have no direct interest in the question as to the proportional part of such damages which each party benefited shall pay; and in that sense they are disinterested; and in that sense we think the legislature used the word. The mere fact that the city in certain cases may be liable for costs, and-in certain other cases may be obliged to pay a portion of the damages assessed, does not show such an interest in the freeholders of the city as to disqualify them, constitutionally or otherwise, from acting as appraisers, if the legislature authorizes it. Such an interest in eacli tax-payer is extremely small, and the legislature presumed that it would not affect their judgment. Other instances of similar legislation are to be found in the statute. The judges of the highest courts are permitted by statute to try causes in which the towns or cities in which they reside are parties; and justices of the peace have jurisdiction of criminal causes, notwithstanding the towns in which they reside may have a possible interest in respect to fine and costs.

We conclude then that it was competent for the legislature to authorize the appointment of freeholders of the city upon these boai’ds.

3. The third and last objection is that it does not appear, from the finding or otherwise, that the appraisers or members of the board of review were freeholders of the city. As the record now stands this objection seems to be well taken. Nichols v. City of Bridgeport, 23 Conn., 189. Upon this point the finding is not explicit. It does appear that they were tax-payers, and that they were residents of the city; and it is probably true that they were freeholders. But that fact ought clearly to appear. We therefore advise the Court of Common Pleas to render judgment for the petitioners, if, upon further inquiry, it shall be found that the board of review was composed of freeholders of the city; otherwise to render judgment for the respondents.

In this opinion the other judges concurred.