Woodhouse v. City of Burlington

47 Vt. 300 | Vt. | 1875

The opinion of the court was delivered by

Royce, J.

The constitutional power to confer upon municipal corporations the right to make assessments upon the property benefited, for the purpose of defraying the expense of making local improvements, has been generally recognized in the states of the Union, and expressly affirmed in this state in Allen v. Drew, 44 Vt. 174. See 2 Dillon Munic. Corp. §596, and notes. Experience has shown that by a judicious exercise of this power where it has been conferred, a nearer approach to equality of taxation has been arrived at, than where the entire burden has been permitted to rest upon the property of the municipality, without regard to special benefits conferred. There is nothing in this case that shows that any injustice was done to the petitioners in ascertaining and fixing the amount for which they were assessed ; and hence the petitioners’ right to the writ must depend upon proof of illegality in making the assessments. The first objection made by the petitioners, as affecting the legality of the assessments, has already been considered. The second, that the commissioners erred in finding as matter of law, that the assessments appealed from were legal and valid, is not available, because it was wholly immaterial what the judgment of the commissioners might be, as long as their judgment was not conclusive. The judgment of the court to whom they were required to report, might be made the subject of complaint, if error was committed by them. It is further claimed, that the commissioners having made the assessments of Dec. 18, 1871, their power over the subject was thereby exhausted, and that that fact, in-connection with the proceedings that were had in relation to that assessment, should be treated as an estoppel against their making the subsequent one. Whether the making of the first assessment would so operate or not, must depend upon its legality and validity. Section 38 of the act approved Nov. 19, 1868, authorized the street commissioners to construct and maintain sewers for the city, and provided that they might assess the owners of land adjoining the streets through which such sewers might be established, a portion of the expense of constructing the same.

But in making such assessments, the same proceedings were required to be had, as were in the same act provided in respect to assessments made by the commissioners upon adjoining land owners in case of laying out or making highways. The power to assess adjoining land owners a portion of the expense of making, opening, or altering highways, was conferred by § 2 of the.same act; and it provides that such assessments may be made upon giving twelve days’ notice of the time and place of hearing, to the parties, in the manner provided by § 93, of ch. 24, of the Gen. Sts. By the record sent here, it appears that no such notice was given. In all cases where the authority to perform any act which will affect the interests of parties, is conferred by statute, and the manner of its performance, and of obtaining jurisdiction over the parties to be affected, are prescribed by statute, the mode of proceeding directed is mandatory, and must be strictly complied with, or the proceeding will be utterly void. Potter’s Dwarris, 224, and notes. Applying this rule to this assessment, we are brought to the conclusion that it was void, and the commissioners might well proceed as if it had never been made.

The only remaining objection which we deem it important to notice, is the alleged want of notice to the petitioners, of the intention of the commissioners to establish the sewer. The establishment and construction of a sewer in a public street, is not, ordinarily, such a taking of private property for a public use, as .requires that compensation should be made. It is to be treated rather as such an improvement or repair of the street as the commissioners are entitled to make. A case might arise where the construction of a sewer would be considered as an additional burden upon the land ; and in such a case, the party owning the land would, no doubt, be entitled to compensation. But no such is made here. And neither the letter or spirit of the statutes under which the commissioners acted, required that any such notice should be given.

The writ of certiorari is denied, and the petition dismissed with costs.