44 Del. 489 | Del. Super. Ct. | 1948
What constitutes due process under the Federal and State Constitutions, is a question which has often been passed upon by the Courts. In the case of English v. Mayor and Council of City of Wilmington, 2 Marv. 63, 37 A. 158, the Court of Error and Appeals of this State held, where the Legislative Enactment names certain persons as assessors or commissioners, to view the premises of those interested in work proposed to be done, for the purpose of determining the benefits to be received and make an assessment in proportion thereto, the owner of the premises is entitled to notice and an opportunity to be heard; but where the Legislature provides for a special assessment for local improvement, or adopts some definite standard for determining the benefits and corresponding burdens, no notice is required. It would be very difficult to give a definition of due process which would cover all cases. The following definition is given by Mr. Justice Fields, in Hagar v. Reclamation District No. 108, 111 U.S. 701, 4 S. Ct. 663, 667, 28 L. Ed. 569, “by ‘due process’ is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must
Paragraph five of the Act, 45 Del. Laws, c. 113, provides that a hearing to fix the boundaries of the proposed sanitary district shall be held within thirty days after the petition therefor is received by the Levy Court, which shall be previously advertised for at least ten days, by notices posted in four of the most public places in said proposed district and in a newspaper published in the county, having a general circulation, once each week for two weeks immediately preceding the week in which the hearing is to be held. It requires that all interested persons, officials, residents, voters, taxpayers, property owners or other persons or corporations affected by the petition shall be heard. This provision for notice and opportunity to be heard, which covers the entire county, is sufficient so far as the question of fixing the boundaries of the proposed district is concerned.
Paragraph six of the Act provides, that after the public hearing has been held and the boundaries fixed by the Levy Court, it shall direct the County Engineer or Consulting Engineer, to make an estimate of the costs of the proposed construction and also an approximate estimate of the assessment per front foot including the amount necessary to take care of interest, amortization and maintenance costs. Said construction estimates and assessment
Paragraph twelve of the Act empowers the Levy Court to levy a special assessment for the express purpose of paying the interest on the bonds, their retirement, and the maintenance costs, the same to be in addition to the calculated assessment per front foot of the average installed cost of an eight inch sewer in the district, to be paid by property owners for sewers immediately serving said property owners. The Act fails to provide for notice of this assessment, or to give the interested parties an opportunity to be heard. It might well be argued that this constitutes a taking of property without due process of law, if it were not for what is contained in paragraph twenty of the Act and certain recognized legal principles applicable thereto.
Said paragraph twenty provides that the total assessment for each year shall be sufficient to raise an amount which will provide for the retirement of the bonds, pay the interest and maintenance charges, and pay for the improvements and necessary general expenses of the sanitary district. It then specifies that the Levy Court shall apportion the assessment against the property in the sanitary district directly or indirectly benefited, in proportion as nearly as may, to the benefits derived. The property against which the assessment is levied is then made liable for the payment thereof in the same manner that it is liable for the payment of other county taxes.
At the present time, there are three methods for the collection of county taxes in New Castle County. However, one of these, the “Monition” method, - was not enacted until 1947, 46 Laws of Del. Chap. 133, and both sides properly concede that because of its later enactment, this method is not available for the collection of assessments under the Sanitary District Act. The only methods available for collection under the latter act are an action of debt, Rev. Code of Del. 1935, § 1360, and attachment proceedings, Rev. Code, § 1351. When the Receiver of Taxes, the officer authorized to make collections proceeds by an action of debt, jurisdiction in personam or quasi in rem must be obtained by appropriate procedures. The statute providing for the attachment method requires an attachment or seizure of property and directs that “Notice of said attachment shall also be given to the defendant whenever practicable.”
Hagar v. Reclamation District No. 108, 111 U.S. 701, 4 S. Ct. 663, 28 L. Ed. 569. Winona & St. Paul Land Co. v. Minnesota, 159 U.S. 526, 16 S. Ct. 83, 40 L. Ed. 247; In re Delinquent Polk County Real Estate Taxes, 147 Minn. 344, 180 N.W. 240; Mudd v. Wehmeyer, 323 Mo. 704, 19 S.W. 2d 891; Ownbey v. Morgan, 256 U.S. 94, 41 S. Ct. 433, 65 L. Ed. 837, 17 A.L.R. 873.
We will now consider the objection taken to the proceeding on the ground that the petitions filed with the Levy Court, and the action taken thereon, fail to comply with the provisions of the statute.
We find the general rule to be, that statutes pro
City of New Haven v. Fair Haven & Westfield R. Co., 38 Conn. 422, 9 Am. Rep. 399; Chicago, R. I. & P. R. Co. v. City of Ottumwa, 112 Iowa 300, 83 N.W. 1074, 51 L.R.A. 763; City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746; Meyer v. City & County of San Francisco, 150 Cal. 131, 88 P. 722, 10 L.R.A. (N.S.) 110; Mayor & City Council of Baltimore v. Porter, 18 Md. 284, 79 Am. Dec. 686.
Our attention is first directed to paragraph four of the Act which states, that fifty or more legal voters residing in a proposed sanitary district, may petition the Levy Court to submit the question of organizing a sanitary district to the legal voters residing in said proposed district. In this proceeding two petitions were filed with the Levy Court, one by persons representing themselves to be legal voters of a district designated as Holly Oak Terrace and vicinity, and one by persons representing themselves to be legal voters of a district designated as Gwinhurst and vicinity; each of said petitions requested the Levy Court to submit to the legal voters of the district the question of organizing a sanitary district to be known as Quarryville Sanitary District. The argument was made that because two petitions were filed with the Levy Court, it was necessary for the Levy Court to establish two separate sanitary districts but we cannot agree with that contention. Each petition asked that the question of establishing a sanitary district, to be known as Quarryville District, be submitted to the voters designated in the petition. We cannot see any reason why the Levy Court cannot combine two contiguous districts into one sanitary district provided that the
A further objection to the proceeding was made on the ground that the petitions do not contain a description of the proposed sanitary district. The Act expressly provides, that the petition shall contain a description of the proposed district which shall be accompanied by a map,
We now come to the question of the sufficiency of the notice of the hearing to determine the boundary of the proposed sanitary district. This notice has been attacked on the ground that it stated that it was posted “in accordance with House Bill No. 359”, without specifying at what session of the General Assembly said bill was passed. It undoubtedly would have been much better to have referred to the session of the General Assembly at which the bill was passed in addition to the number, but the failure to do this is not a fatal defect. Anyone desiring to examine the statute would be able to find it but it might take a little longer to do so.
The notice was attacked on the further ground that it describes the area to be included in the proposed sanitary district to be called Quarryville Sanitary District, as “Holly Oak Terrace and vicinity”, and does not refer to “Gwinhurst and vicinity”. Under the provisions of paragraph five of the Act, upon the receipt of a petition for the organization of a sanitary district the Levy Court is required to set a date for a public hearing on the question of the
We are of the opinion that the proceeding taken under the above-mentioned notice, and all proceedings taken thereafter, are invalid, and we direct that this opinion be certified to the Superior Court in and for New Castle County.