114 A. 686 | Conn. | 1921
No objection is made to the assessment against the city on account of general benefits to the people of the city and the community at large, because by itself it would not require an expenditure by the city of more than the amount limited by the provision of the city charter which we are to consider in determining the first question submitted for our advice. That provision is quoted in the agreed statement of facts, and is contained in § 178 of the city charter revised in 1920. 17 Special Laws, p. 888. But the board of street commissioners of the city has found that three pieces of land belonging to the city will be specially benefited by the proposed public improvement to the amount of $28,346.03, and accordingly, in the assessment of benefits, has included the city among the owners of specially benefited property lying within the area of assessment. If the payment of these assessments on this property of the city should be reckoned as a part of the expenditure which this public work will require the city to make, it is plain that this expenditure will exceed $25,000, and the resolution ordering this work, since it has not been approved by a majority vote of a city meeting, is not obligatory on the city. The first and decisive question, then, is whether these assessments must be so reckoned within the meaning of this charter provision.
We have said that this provision "was obviously intended to protect the taxpayers of the city against extravagant and unnecessary expenditures by the common council"; Park Eccl. Soc. v. Hartford,
The public work which is the basis of the assessments of benefits in the present case is a local improvement, incidentally carrying some general benefit to the community as a whole. The assessments have been laid upon individuals, private corporations and the city, because they are the owners of certain property specially benefited, and a small assessment upon the city on account of the general benefits. These assessments have been apportioned and fixed by the board of street commissioners of the city of Hartford, to which the General Assembly has given exclusive power to assess any part of the expense of laying out or altering any street in the city upon persons whose property is, in the judgment of this board, specially benefited thereby. 6 Special Laws, pp. 315, 745. In exercising this power, this board derives its authority directly from the State, not through the city or any of the city's boards or officers. Hartford v. Hartford Electric Light Co.,
In connection with public works in the city of Hartford, it has been the uniform practice to assess benefits against the city on account of property belonging to it and fronting on the improvement or lying within the area of assessment, in the same manner and at the same rate as assessments of benefits have been made upon *521
private owners in similar situation. This practice has never been challenged, and accords, we think, with the fundamental theory and principles of local or special assessments. 2 Cooley on Taxation (3d Ed.) pp. 1153, 1155, 1234. "Even public property is often subjected to these special assessments; there being no more reason to excuse the public from paying for such benefits than there would be to excuse from payment when property is taken under eminent domain." Ibid. p. 1236; 1 Page Jones, Taxation by Assessment, § 584; Scammon v.Chicago,
By its charter (Revision 1920, § 139, 6 Special Laws, p. 315), the city has been given power to assess the whole or any part of the expense of a public work "upon the persons whose property is . . . specially benefited thereby." In Hartford v. West Middle District,
It is truly said that the city must pay the damages awarded on account of any public work; but its charter provides a means by which it may reimburse itself through assessments of special benefits. These are charged against the several property owners, and paid in some instances by money belonging to them, and in some by offsets against damages awarded. In the same way the benefits assessed against the city are charged against the city, and are paid by money belonging to it. In every case the person who pays is the person in law who owns property benefited to the extent of the payment, who therefore bears no burden nor loss, but receives an advantage. The principles which authorize and justify these proceedings in any case, authorize and justify them in the case of a municipal corporation possessing property specially benefited by a local improvement.
The right and power to make an assessment of benefits upon the owner of property specially benefited by a public work, does not depend on the power to place a lien on the property. New Haven v. New Haven Westville R. Co.,
It is true that by our General Statutes, § 1160, all property belonging to any city is exempt from taxation. But while an assessment of benefits is an exercise of the taxing power of the State, "it is never spoken of in charters of cities and boroughs, or in the general law, *524
or in popular intercourse, as a tax." While it is "in a general sense a tax, it is one of a peculiar nature. It is alocal assessment imposed occasionally, as required, upon a limited class of persons interested in a local
improvement; who are assumed to be benefited by the improvement to the extent of the assessment." Bridgeport
v. New York N. H.R. Co.,
It would seem to require no argument to show that the taxpayer needs no protection against a resolution of the common council which will confer an advantage upon him, or that an expenditure which results in no loss nor burden for him to bear should not be classed as "extravagant" or "unnecessary."
While all the inhabitants of the city of Hartford possess and enjoy all the property of the corporation and are benefited by general public improvements and indirectly by local improvements, by no means all of them bear any part of the expense of making any of them. Nevertheless many of them are electors entitled to vote in a city meeting. The money to defray all expenses of the city is obtained from its general revenue, which is derived almost wholly by taxation levied only *525 upon those of its inhabitants who own taxable property within the city limits. Many of these taxpayers are not electors entitled to vote in a city meeting. There is no occasion for the nontaxpaying voters to vote on a question of a local improvement the expense of which is not borne by them; and the interests of the taxpayers will be protected sufficiently if the voters in a city meeting devote their attention to matters in which they have a direct interest and which require an expense to be paid by the public at large.
For these reasons, and mindful of these principles of law which we have mentioned, we conclude that the practice long prevailing in the city of Hartford, of assessing benefits against it on account of specially benefited property owned by it and situated in the assessment area, in the same manner and at the same rate as benefits have been assessed against private owners of specially benefited property in the same locality, is equitable and legal; that the amount of the special benefits the city has received, as conclusively determined by the board of street commissioners, at least equals the expense by the city on account of this public work, and the city will suffer no loss by reason thereof; and that, within the meaning of this charter provision, that amount should not be reckoned as a part of the expenditure by the city required by this public work. In our opinion, the charter provision in question has no application to a public work or improvement unless the expenditure which it will require all the taxpayers of the city to make, on account of general benefits to the people of the city, shall be more than $25,000.
The total damages awarded in connection with this public improvement are $485,022.79, and this sum the city will pay. The total benefits assessed are $460,230.10, and this sum the city will recover either *526 in money collected, or in offsets against damages awarded, or in the increased value of its own property. The remainder is the only part of the expense which may be regarded as a burden upon the people of the city at large, which must be borne by them, and in which they have any direct interest. There can be no occasion for them to vote on the question of a local improvement requiring expenditure of another kind. On the other hand, being compensated fully for the payment of their assessment for special benefits, the taxpayers will be protected in their other interests by limiting the application of this provision of the charter to that portion of the expenditure which must be paid by the city at large. In the case of this proposed public improvement, this portion is less than $25,000. Hence this provision of the charter has no application nor effect.
While the determination of these questions finally disposes of this cause, another question of law has been presented in this reservation for our advice which it is desirable to determine at this time in the interest of simplicity and economy in action in the future. It is whether in such circumstances as appear in this proceeding a taxpayer is entitled to relief by injunction. The plaintiffs in this suit are not only taxpayers but owners of real estate situated within the area covered by the assessment, and have all taken appeals from the assessment of benefits laid upon them and their property under the provisions of the city charter, and these appeals are now pending. Nevertheless, the plaintiffs allege that they have no adequate remedy at law, and contend that they have a right to equitable relief by injunction. The city charter provides that "an appeal shall be allowed to any person aggrieved by any appraisal of damages or assessment of benefits, to the judge of the Court of Common Pleas for the county of *527
Hartford"; that if he shall find cause, he may alter any appraisal or assessment and reapportion the amount of damages or benefits; and that he "shall have, for the purpose of disposing of said appeal, all the power of the Superior Court." City Charter (Revision 1920) §§ 152-156; 7 Special Laws (1873) p. 527. An amendment in 1917 added the provisions that "such appeal shall not necessitate delay in the action of the court of common council in laying out, altering or making such public work or improvement, or in the actual execution thereof," and that "the city may enter upon and occupy the land or property needed for such work or improvement, notwithstanding the pendency of any such appeal." 17 Special Laws, p. 977; City Charter (Revision 1920) § 141. With such power as this, it is manifest that the city may cause irreparable injury to a property owner before he could be effectively protected by an appeal. While the judge on appeal is enquiring into the validity of all the proceedings in which an assessment is based, and before he shall have set aside or modified them, the property owner may have been deprived of his property, and if the proceedings be ultimately declared invalid, of compensation also. The owner cannot be denied the right to challenge in some effective action the legality of the process by which his land or property is to be taken from him without his consent. The charter of the city of Hartford in its latest form does not secure this right by the process called an appeal from an award of damages or assessment of benefits. There is in it no adequate remedy at law. Hence an application to a court of equity for a restraining injunction is a proper, if not the only, means which the property owner has to protect his rights. This is not merely a case of misspending the public funds or resisting the levy of a tax illegally levied, as was New London v. *528 Brainard,
As we have said, the resolution of the common council ordering this public improvement did not require an expenditure by the city of more than $25,000, within the meaning of this charter provision, and therefore it was valid, and the city and its officers, notwithstanding the pending appeals, have authority under the charter to proceed at once to carry out the resolution and to begin the actual execution of the work without delay.
Therefore the Superior Court is advised that upon the pleadings and agreed statement of facts, judgment should be rendered for the defendants.
No costs will be taxed in this court.
In this opinion the other judges concurred.