81 Vt. 530 | Vt. | 1909
The bill alleges that on the 6th day of April, 1903, without petition from the landowners abutting Main street in the City of Barre, and without notice to, or any hearing of, or right to be heard by, the orators, a resolution was passed by the Board of Aldermen of that city, purporting to be an act of the city council, signed by the President of the Board of Aldermen and approved by the Mayor, as follows: “Resolved by the city council of the City of Barre, now in session as follows: That whereas the public good, and the convenience and necessity of individuals demand that North Main street should be paved
It is further alleged in the bill that under this resolution that part of Main street opposite the respective lots of the orators was excavated; graded, a heavy concrete foundation laid thereupon, paved, guttered, and drained; that this work was done by fhe Street commissioners and paid for out of the funds indicated in the resolution, that is, funds set aside by the city council for the purpose of improving, maintaining and repairing the streets in the city; and that the orators and their predecessors in title have paid all the highway taxes assessed against them for such purpose.
An amendment to the city charter was subsequently obtained (Laws of 1906, No. 256) by which it is provided: “That in case at any time within six years prior to the passage of this act, any street, lane or alley in said city or any portion of any such street, lane or alley has been drained, graded, paved or macadamized, curbed and guttered or that any such improvements have been made and the city council shall by resolution duly passed decide that such improvements when made were for the public good and convenience and necessity of individuals; the city council may order and direct the street commissioners to assess not to exceed one-half of the total cost and expense of such improvements upon all the lands and buildings abutting upon or adjacent to the street, lane or alley or part thereof that has been improved as above specified within six years prior to the passage of this act, and in the same manner according to special benefits per front footage as is provided above for assessments upon a petition in writing presented to the city council, signed by the owner or owners of two-thirds of the frontage of any
It is contended in effect that since the right to make the improvements of 1903 was based on the public good and the convenience and necessity of individuals, the provisions of the charter giving such right are in conflict with the due process of law clause of the 14th Amendment to the Federal Constitution, as the owners of the frontage likely to be assessed for a portion of the expense thereof for special benefits were afforded no opportunity to be heard on the question of making the improvements ; that so far as the charter, as amended by the Act of 1906, confers upon the city council the power to determine that such improvements already made were for the public good and the convenience and necessity of individuals when made, without any provision of law giving such owners a chance to be heard thereon, it is invalid for the same reason. Do the provisions of the charter authorizing the determination of these two questions without notice to abutting landowners deprive them of due process of law? Our attention is called to the doctrine laid down in Stearns v. City of Barre, 73 Vt. 281, 50 Atl. 1086, 58
It is further said in argument that the provisions of the charter purport to authorize the street commissioners to assess the abutting landowners and make the assessment a lien on their property without notice to them and that consequently such provisions are invalid. But we think this argument is based upon a misconception of the proper construction of the charter which in this respect reads: “The city council may order and direct the street commissioners to assess not to exceed one-half of the total cost and expense of such improvements upon all the lands and buildings abutting upon and adjacent to the street, # * *, and in the same manner according to special benefits per front footage as is provided above for assessments upon a petition in wri
Our attention is called to the fact that in this respect the Act of 1906 does not purport to be curative in character, but “new and original,” having intended retrospective operation, by reason whereof it is contended that obligations of contracts are impaired and vested rights taken away. But this contention is unsound. Assuming without deciding that the improvements made were in excess of those called. for by the resolution of April 6, 1903, such excess was but an irregularity, and the improvements as a whole could be and were subsequently adopted by the municipality in paying therefor, and by procuring, as is alleged, the act in amendment of the charter, on its application to the Legislature “for permission to assess the abutting landowners on said street in a sum not to exceed one-half of the total costs of” the improvements thus made. 'No principle of contract was involved between the municipality and' the owners of the lands assessed, and be the. amendatory act in the respect named curative or “new and original,” legislative power was legitimately exercised in authorizing special assessments for benefits inuring to abutting property from local improvements already made. In Seattle v. Kelleher, 195 U. S. 351, 49 L. ed. 232, 25 Sup. Ct. 44, when the improvement (grading street) in question was ordered, by the city charter a part thereof consisting of planking was to be paid for out of the general taxes, and the other elements by special assessment, according to the
It is further urged that the assessment in question was made by the commissioners according to the frontage without reference to the special benefits to the different properties and without regard to the great difference in value of the property assessed as belonging to the respective owners, and disregarding the facts that some of the abutting property was much more improved by way of buildings erected thereon than the lands of' the several orators, and that some of the lots contain two or three times the square feet contained in the lands of the respective orators. Yet the bill alleges that the commissioners held meetings and found the amount of frontage specially benefited by said draining, grading, etc., to be 1,590.738 feet, and therefore, adjudged each foot of said 1,590.738 feet to be especially benefited to the extent of $3.4963, “and they did assess said lands and.buildings abutting on said North Main street upon each individual piece of property according to frontage as follows: * * *, which assessment does not exceed one-half the cost of said improvement, and thereupon assessed your orator, Mary Jane Durkee, on a frontage of twenty feet, making your orator Mary Jane Durkee’s assessment $69.73,” etc., — giving
We construe the allegations as in effect that the assessment was made upon the respective lands of the several orators according to the special benefits per front footage, as found by the commissioners. That this is the force intended by the pleader is obvious from the further allegation that a great many pieces of land with buildings thereon and adjacent to said street, were not assessed for the purpose of paying the costs of said improvements, and that these facts we.re- well known to the commissioners. This allegation, taken in connection with allegations showing the assessment made, impliedly is, that the several pieces of land there referred to were not found by the commissioners to have been specially benefited by the improvements. Sowles v. Village of St. Albans, 71 Vt. 418, 45 Atl. 1050. Unless thus benefited, no assessment could be made thereon. This appears from the case to which reference was last made, also from Barnes v. Dyer, 56 Vt. 469.
After alleging somewhat more specifically regarding the differences in size, shape, and value of the abutting pieces of property, also in improvements by way of buildings thereon; and that notwithstanding the records show that the different properties were all equally benefited so mneh per front foot, some of the abutting landowners were more especially benefited than others; it is alleged that the “street commissioners, in the way and manner aforesaid, have knowingly and fraudulently adjudged that all of said lots and buildings thereon abutting said street, were of the same value, and were especially benefited all alike as to front footage, for that the said street commissioners then and there well knew that a great many of said lots were deeper than others of them, and were more valuable, and that the buildings and blocks of divers kinds of wood, brick, and granite on the several abutting lots were different in size, containing many more stories than others, and worth many more thousand dollars than other blocks and buildings, and that the benefits to the granite and brick blocks, worth from thirty to forty thousand dollars, were greater than the benefits to the wooden buildings worth from twelve to fifteen thousand dollars. ’ ’
It will be observed that on the face of the bill, the only allegation which can be claimed as directly charging fraud, is a
In Peters v. Newark, 2 Vroom, 360, one objection to the assessment for benefits received by opening a new street was, that the commissioners adopted an erroneous principle in estimating all the property assessed as if it were unimproved, whereas some of it was, in fact, improved by having valuable buildings thereon. The court said it was not satisfied that in this the commissioners were wrong; that the advantage an owner of property acquires by the opening of a new street in a city must be mainly if not wholly the advanced value of the land; that the buildings on it would cost very nearly or quite the same without as with the improvements; and that the action of the commissioners in this regard was believed to have been in accordance with the common practice in like cases, which
In O’Reilley v. Kingston, 114 N. Y. 439, 21 N. E. 1004, the action was brought to set aside and adjudge void an assessment made on lands of the plaintiff for paving a certain avenue in defendant city. Objection was made to the assessment on the ground that it was apportioned among the owners of the lots fronting upon the avenue in proportion to the frontage of each lot, some of the lots being vacant and others occupied by valuable buildings. By the city charter the land to be assessed was that bordering on or touching the street improved and it was the duty of the assessors to determine the benefits derived by the owners of such land. It was held that in thus determining the benefits the assessors acted judicially, and that their judgment could not be reviewed, unless they acted upon an erroneous principle in making the assessments; that the conclusion reached by them that the tax should be apportioned among the owners of the real estate bordering on the street according to the number of feet front, owned by each individual, was not necessarily an erroneous principle, if it was the assessors’ judgment that each owner was benefited in that proportion; and on the other hand it might be the most just and equitable of any that could be adopted. In Hoffeld v. Buffalo, 130 N. Y. 387, 29 N. E. 747, the plaintiff sought in equity to have an assessment of his land for benefits received by way of improvements in extending a certain street adjudged void and its collection restrained. The assessors in finally determining the amount to be assessed for the benefits upon each of the pieces of land assessed, fixed -the amounts without regard to the value of the buildings or other improvements on the respective parcels for the reason that they determined that the amount of benefits
In Hagar v. Reclamation Dist., 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. 663, it is said: “The expense of such work may be charged against parties specially benefited and be made a lien upon their property. All that is required in such cases is .that the charges shall be apportioned in some just and reasonable mode, according to the benefit received. Absolute equality in imposing them may not be reached; only an approximation to it may be attainable. If no direct and insidious discrimination in favor of certain persons, to the prejudice of others, be made, it is not a valid objection to the modé pursued that, to some extent, inequalities may arise.” See also Allen v. Drew, and Seattle v. Kelleher, before cited.
Without further reference to decided cases on this question, sure it is that the statement of facts contained in the bill upon which the orators rely as showing fraud in the making of the assessment, do not in law carry such an inference, and consequently they do not warrant the characterization there given to the acts of the commissioners in this behalf. Special benefits are such peculiar benefits as the owner of land receives from local improvements, over and above the ordinary benefits which he receives as one of the community. The averred differences among the abutting properties were, with the other circumstances, matters for consideration by the commissioners in imposing the tax, and the fact that a uniform sum per front foot was imposed against several of the owners of frontage, and against
It is unnecessary to consider when or under what circumstances equity will grant relief against such assessments on the ground of fraud. Suffice it that from the facts alleged fraud will not be inferred, and we cannot say that substantial justice was not done,
The question of misjoinder of the orators is also presented, but not considered. The disposition made of the other questions leaves the bill without anything upon which to stand.
Decree reversed, demurrer sustained, bill adjudged insufficient, and cause remanded tuith directions that the bill be dismissed with costs to the clefendaoit in this Court. Let the costs below be there determined.