35 Mich. 155 | Mich. | 1876
The principal question in this cause is, whether it is competent to provide by law that sewer taxes in a city shall be assessed upon the lots and lands benefited in proportion to their superficial area. A subordinate question is, whether, conceding such an assessment to be legal, it can be lawfully made without giving the parties concerned an opportunity to be heard.
The assessment in question was laid under .act No. 241 of 1875. — Local Acts 1875, p. 8. The second section of that act provides that before the assessment shall be made, the common council shall, by resolution, declare what lands, lots, and premises are and have been benefited by the construction of the sewers respectively, and such lots, lands, and premises are then to constitute the assessment district for the purpose of assessing the cost and expense of such sewers respectively. By the fourth section it is provided that the assessment shall be .made on the lots, lands, and premises within the district “in proportion to the number of superficial feet therein.” It is further provided that the assessment roll, when completed, shall remain on file with the city clerk for' at least two weeks,
The principal objection made to the assessment is, that it is not apportioned among the parties benefited upon any principle recognized in the law; that it is made on a basis purely arbitrary, and consequently cannot be justified as an exercise of the taxing power. It is not claimed that an assessment by benefits would be inadmissible, but it is insisted that an assessment by the area of lots, irrespective of proportionate benefits, is nothing but a levy of arbitrary exactions, and therefore unconstitutional.
*The proper method of levying assessments for sewers has not been much discussed by the courts. In England they have generally been laid in proportion to benefits received, estimated according to the yearly value of the lands within the district. — Rooke's Case, 5 Rep., 100; Masters v. Scroggs, 3 M. & S., 447; Netherton v. Ward, 3 B. & Ald., 21; Stafford v. Hamston, 2 B. & B., 691; Soady v. Wilson, 3 Ad. & El., 248; Metropolitan Board of Works v. Vauxhall Bridge Co., 7 EL & Bl., 964. In this country, assessments for sewers, and also for drains, have generally been levied upon an estimate of special benefits. — Reeves v. Treasurer of Wood Co., 8 Ohio N. S., 333 ; Sessions v. Crunkilton, 20 Ohio N. S., 349; Draining Co. Case, 11 La. An., 338; O’Reiley v. Kankakee Braining Co., 32 Ind., 169; Wright v. Boston, 9 Cush., 233: Springfield v. Gay, 12 Allen, 612; Brewer v. Springfield, 97 Mass., 152; Cone v. Hartford, 28 Conn., 363; Commonwealth v. Woods, 44 Penn. St., 113., It was decided in Connecticut, that an arbitrary assessment by the frontage of lots was unreasonable and invalid.— Clapp v. Hartford, 35 Conn., 66; but in Pennsylvania, assessments which charged upon lots a portion of the costs of sewers, not to exceed a certain maximum per foot front, have been sustained. — Lipps v. Philadelphia, 38 Penn. St., 503; Philadelphia v. Tryon, 35 Penn. St., 401.
The assessment of sewer taxes by the superficial area is quite unusual. In the southwest, levee taxes are sometimes assessed
It is quite evident to our minds, however, that when it has been determined that a case is one in which a special assessment may be laid, we have not got over all the difficulties that present themselves here. That is only a preliminary question, and involves only a single consideration, namely: whether the particular burden which it is proposed to levy is or is not a tax in the meaning of that term as it is employed in the constitution in making provision that taxes shall be laid by the value of property. If it is a tax in the ordinary sense, it must be assessed by value; if it is not a tax in that sense, it must be apportioned on some other basis. But it does not follow that it may be apportioned on any basis whatsoever which the legislature may see fit to prescribe.
It has been decided in this state that an assessment of paving and similar taxes may constitutionally be made in proportion to the frontage of lots along the improvement.— Williams v. Detroit, 2 Mich., 560; Motz v. Detroit, 18 Mich., 495; Hoyt v. East Saginaw, 19 Mich., 39. The idea that underlies statutes for this purpose is, that the benefit to the abutting lots
But it is generally agreed that an assessment levied without regard to actual or probable benefits is unlawful, as constituting an attempt to appropriate private property to public uses. This idea is strongly stated in Tide- Water Co. v. Coster, 18 N. J. Eq., 519, which has often been cited with approval in other cases. It is admitted that the legislature may prescribe the rule for the apportionment of benefits, but it is not conceded that its power in this regard is unlimited. The rule must at least be one which it is legally possible may be just and equal as between the parties assessed; if it is not conceivable that the rule prescribed is one which will apportion the burden justly, or with such proximate justice as is usually attainable in tax cases, it must fall to the ground, like any other merely arbitrary action which is supported by no principle.
The only discretion which the act in question allows to the common council as an assessing board is in determining what lots and lands are benefited by the improvement. When that determination is made, the rule of apportionment is fixed, and it must be made according to the area. It is not required that the lands shall lie contiguous to each other, or that the bene
In what has here been said, it is not intended to decide, or to intimate, that a sewer tax may not, under some circumstances, be lawful though apportioned by the area of the lots assessed. If under the law providing therefor the assessment were confined exclusively to lots lying contiguous to each other, and on or near the street in which the sewer was to be' constructed, and all properly urban lots, or, as they are sometimes designated, in-lots, as distinguished from the outer lands of the town, which receive only slight and indirect benefit from such improvements, and if the law also provided for private drains "into the sewer as matter of right on the part of the-proprietors of the lots assessed, the case would be so different from the one now before us that much of what we have said could have no application. We confine our discussion strictly to the record before us, and to the act under which this assessment is laid, not caring to enter upon any discussion of hypothetical eases which may never arise, or which, if they do arise, can better be considered when their special features are presented for consideration.
The principle of the statute being thus found to be unsound, it does not become necessary to consider details. But as new legislation will probably be procured, it seems proper to declare in this case that parties whose property is to be taken under summary tax proceedings are entitled as of ight to be heard at some stage of the proceedings before the tax shall become an established charge against them or their property. It was said by Agnew, J., in Philadelphia v. Miller, 49 Penn. St., 440, 448, that “notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property.” The principle was recognized by this court in Butler v. Supervisors of Saginaw, 26 Mich., 22. In England, until appeals were given from sewer assessments, it *was held that the party taxed might sue the officer in trespass or replevin for a levy on his
We have deferred to the last a question raised-by the defendant which goes to the jurisdiction of the court. We have decided in several cases that equity has no jurisdiction to restrain the collection of a tax from goods and chattels.— Youngblood v. Sexton, 32 Mich., 406; Hagenbuch v. Howard, 34 Mich., 1; Mears v. Howarth, Ib., 19. The bill in this case complains that the city marshal is about to proceed in the collection of the assessment from the personal property of the complainants; and had it been demurred to, the objection would have been fatal. But this case differs from Youngblood v. Sexton, in that the tax is one levied upon real estate, and which by the statute is made a lien. The case is consequently a proper one for a bill to remove a cloud from the title. But to such a bill ■che city should have been made a party, as the cloud would not be removed by merely enjoining the action of the marshal on his tax warrant. It was held in the similar ease of Palmer v. B,ich, 12 Mich., 414, that where the objection to want of parties was not seasonably made, it might be obviated by amendment made at the hearing; and with a view to putting an end to expensive litigation, we are disposed to allow that course to be taken here. The case will be ordered remanded, with leave to the complainant to amend by adding the city as a formal party, and with directions to enter final decree for complainants when the amend