137 N.W. 372 | S.D. | 1912
Appeal from the circuit court of Brookings county. Action to recover an amount alleged to be due on a sewer certificate issued by the city of Brookings to the plaintiff, Haggart, as contractor, against property owned by defendants, for tjhe construction of sewerage. The complaint demands judgment for the amount of the certificate, $50 attorney’s fees, and prays that defendant’s property be sold according to law to satisfy the judgment. The complaint sets out in- minute detail each step in the proceedings of the municipal authorities, creating sewerage districts, -the contract under which the sewerage was constructed, the acceptance of the work, and other matters. The complaint is very voluminous, and no useful purpose would be ■ served by. an attempt to recapitulate its allegations and recitals. Defendants filed a general demurrer to the complaint, which was overruled. This appeal is from the order overruling the demurrer. The sewerage proceedings were under the provisions of chapter 213 of the Laws of 1903. Only two objections to the complaint are urged by appellant upon the demurrer: First. That chapter 213, Laws of 1503, provides for sewerage districts and contemplates .equality of special taxation only within subdistricts, and is unconstitutional
It is respondent’s contention that the act which provides for sewerage districts and for equality of special assessments or taxation within such districts is constitutional and valid, and that the notice above set forth is a sufficient compliance with the provisions of the statute, and that the trial court committed no error in overruling the demurrer. We shall consider these contentions in the order indicated.
It is settled by the decisions of this court, sustained by the great weight of authority, that special assessment -or special taxation is lawful and constitutional only when founded upon special benefits accruing from the improvement for which the tax or asssessment is laid. In very few, if any, cases would it be possible for a local improvement to specially benefit all -property within a municipality, and, if the construction contended for by
It is absolutely clear that section 10, art. 11, was intended to confer upon the Legislature power to authorize municipalities to make local improvements by special taxation of contiguous property or otherwise, and if it be held, as contended by appellant, that special taxation for local improvements must “be uniform in respect to persons and property within the jurisdiction of the body ■levying the same,” the latter provision of section 10 would in effect nullify the authority of the Legislature to authorize special taxation for local improvements, contained in the first clause of the section. To our minds it is entirely clear that the clause, “such tax'shall be uniform,” refers only to taxes levied for general corporate purposes, and not to special taxes or assessments for local improvements. But this view in no manner affects or modifies section 17, art. 6, of the Constitution, which requires that “all taxation shall be equal and 'uniform.” As applied to special taxation and special assessments for local improvements, the requirements that all taxation shall be equal and uniform' is fully met when special assessments or taxes are uniform as to all property benefited by the local improvements for which they are laid, in proportion to benefits conferred by such improvements. In Bailey v. City of Sioux Falls, supra, it was unnecessary to determine the constitutionality of chapter no, Laws 1909, which provides that cities may be divided into sewerage districts. The court there held that the municipal authorities had failed to proceed in accordance with the act itself, and for that reason.the proceedings were without authority and void. In the view we take of the present appeal, the same situation exists, but we are of opinion the public interests require that the question of the constitutionality of these acts authorizing the creation of sewerage districts be finally settled and determined.
The order overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.