Sears v. Street Com'rs of Boston

for general construction, which means construction in any part of the system of sewers, and 2 cents per $100 for general maintenance, which means the expense of salaries, care of sewers, coal, and other things pertaining to the management and operation of the system. That such expenses are proper subjects for general taxation, and not for special assessments, has often been decided. Hammett v. Philadelphia, 65 Pa. St. 146; Washington Ave., 69 Pa. St. 352; Appeal of City of Williamsport (Pa. Sup.) 41 Atl. 476; Dietz v. City of Neenah, 91 Wis. 422-427, 64 N. W. 299, and 65 N. W. 500; Dyar v. Farmington Village Corp., 70 Me. 527; Hanscom v. City of Omaha, 11 Neb. 37, 7 N. W. 739. In Erie v. Russell, 148 Pa. St. 384, 23 Atl. 1102, the court says: "Why should a sewer demanded and constructed by the city, and paid for by assessments on the property fronting on the street under which it is laid, be maintained and reconstructed on the order of the municipality at the expense of such property? It was made by the

action of the city a part of its system of sewerage, which is as necessary for the health of its people as its paved streets are for their use. Its construction was at the expense

of the abutting property, and properly so, in discharge of the obligation arising from particular benefits conferred. It is now a constituent of the general system ordained by the city for the convenience and health of its inhabitants. This system confers benefits which are general. It is a public necessity, and the expense of maintaining it should be provided for by general taxation." See Child v. City of Boston, 4 Allen, 41; Emery v. City of Lowell, 104 Mass. 13-16. In Sears. Board, supra, this court held, with some hesitation, that watering streets, which before the passage of a statute on the subject was generally done at the expense of the abutters, conferred a direct and special benefit upon abutting property occupied for business or residence. Some other courts have held to the contrary. See City of Chicago v. Blair, 149 Ill. 310, 36 N. E. 829; Insurance Co. v. Prest, 71 Fed. 815. But in that case the relation of the expenditure

Sears v. Street Com'rs of Boston

to the abutting property was very different from that of the expenditure for salaries and other expenses of maintaining a sewer department to property whose owners have previously paid assessments for the special benefits to be received from the use of the sewers. In assessing such benefits when the sewers were constructed, it was assumed that the sewers would be kept in operation for the benefit of the public, and that owners of property assessed would only be called upon to contribute, as general taxpayers, their proper share of the expenses of operating them. It is probable that most estates which drain into sewers in Boston were specially assessed when the sewers were constructed. Because the statute purports to give the street commissioners power tionality of to levy special assessments on real estate upon other grounds than the receipt of special benefits, and to amounts beyond the amount, if any, of special benefits, and for expenditures which, as against such property, are not proper subjects for special taxation, we are of opinion that the statute is unconstitutional.

Same-Constitu

Statute.

It is also contended by the petitioners that the statute gives owners of property no opportunity of being heard upon their liability to assessment. It is well established that the determination of the amount of taxes for special benefits to real estate by any tribunal to which the legislature delegates the power is a quasi judicial proceeding which cannot take final effect unless persons to be assessed have an opportunity to be heard. New London N. R. Co. v. Boston & A. R. Co., 102 Mass. 386; Parsons v. District of Columbia, 170 U. S. 45, 52, 54, 18 Sup. Ct. 521; Hagar v. Reclamation Dist., 111 U. S. 701-709, 4 Sup. Ct. 663; Irrigation Dist. v. Bradley, 164 U. S. 112-175, 17 Sup. Ct. 56; Stuart v. Palmer, 74 N. Y. 189; Remsen v. Wheeler, 105 N. Y. 573, 12 N. E. 564; In re Trustees of Union College, 129 N. Y. 308, 29 N. E. 460; Dietz v. City of Neenah, 91 Wis. 422-427, 64 N. W. 299, and 65 N. W. 500; People v. Board of Supervisors of Saginaw Co., 26 Mich. 22; Thomas v. Gain, 35 Mich. 155; Campbell . Dwiggins, 83 Ind. 473; Ulman v. City of Balti

Notes

more, 72 Md. 587, 20 Atl. 141, and 21 Atl. 709. But, if a party has a right to appeal or to be heard upon an applica tion for an abatement, it is sufficient. Weed v. City of Boston, 172 Mass. 28, 51 N. E. 204; Palmer v. McMahon, 133 U. S. 660, 10 Sup. Ct. 324; Redwood Co. v. Winona & St. P. Land Co., 40 Minn. 512, 41 N. W. 465, and 42 N. W. 473. See, also, Sawyer v. Board, 125 Mass. 182-186; City of Philadelphia v. Miller, 49 Pa. St. 440; Cleveland v. Tripp, 13 R. I. 50. This statute makes no express provision for notice or a hearing. It declares that "the determining of such charges as aforesaid [that is, by the street commissioners] shall be final in all cases," and provides for a notification of the determination to the board of assessors, and for the collection of the amount as a tax. In view of this language, it is difficult to see how the statute gives, by implication, an opportunity to be heard at any stage of the proceedings. But, as we hold this section of the statute unconstitutional on other grounds, it is unnecessary to determine this question. In each case the order must be: Writ of certiorari to issue.

NOTES.

Local Assessments-Validity.-A local assessment is unconstitutional so far as it exceeds the special benefit to the property assessed. Creighton v. Manson, 27 Cal. 620; Crawford v. People, 82 Ill. 557; Louisville v. Louisville R. M. Co., 3 Bush (Ky.) 416; Excelsior Planting, etc., Co. v. Green, 39 La. Ann. 455; Zoeller v. Kellogg, 4 Mo. App. 163; Hanscom v. Omaha, 11 Neb. 41; Tide-Water Co. v. Coster, 18 N. J. Eq. 527; Matter of Canal St., 11 Wend. (N. Y.) 155; Chamberlain v. Cleveland, 34 Ohio St. 560; Holton v. Milwaukee, 31 Wis. 40.

See also State v. Mayor, etc., of Bayonne Cas. 299 and note, p. 305, 2 Dill. Mun. Corp. question is ably discussed in all its phases.

(N. J.), 1 Mun. Corp. 752 et seq., where the

Assessment Fixed by Discretion of Municipal Authorities - Constitutionality. In Church v. Fort Wayne, 36 Ind. 338, is construed a general municipal incorporation act of Indiana, which provides in respect of sewers, drains and cisterns that the assessment of the cost thereof shall be upon the owners of the property benefited thereby, "in such equitable proportion as the common council may deem just." See also, Thomas v. Gain, 35 Mich. 155.

Notes

A statute empowering the authorities of a city to construct sidewalks and make local assessments on the property fronting the same, "for so much of the expense thereof as they shall deem just and equitable," is unconstitutional in that there is no fixed, certain and legal standard for assessment. Such assessment should be made in view of the benefit to the abutting land; but under this statute they may be made in view of the defendant's ability to pay. Barnes v. Dyer, 56 Vt. 469, 5 Am. & Eng. Corp. Cas. 503.

In State v. Newark, 8 Vroom (N. J.), 415, 18 Am. Rep. 729, the chief justice of New Jersey says: "The only safe rule is that the statute authorizing the assessments shall itself fix either in terms or by fair implication the legal standard to which such assessment must be made to conform. In no other way can property be adequately protected."

In New Brunswick Rubber Co. v. Commissioners of Streets and Sewers, 9 Vroom (N. J.), 190, 20 Am. Rep. 380, it was decided that where a statute authorized commissioners to assess the cost of a sewer upon lands benefited thereby in such proportion as they should deem just and equitable, no valid assessment could be made under the statute, as it failed to determine the mode of distributing the burden. KNAPP, J., in delivering the opinion of the court says: "In State v. Mayor, etc., of Paterson, 8 Vroom (N. J.), 412, an assessment certified to have been equitably made, was set aside as governed by no rule. It is not perceived how a legislative enactment which provides no rule or standard for making an assessment for a public work can have higher claim for validity."

In a note to Dillon's Mun. Corp. Sec. 761, the learned author makes this comment upon New Brunswick Rubber Co. v. Comm'rs of Streets, 38 N. J. Law, 190:-"The supreme court held the very strict view that a sewer act which authorized the commissioners of streets and sewers upon the completion of any sewer to ‘ascertain the whole cost thereof and the size of all the lots drained thereby, and to fix the amount to be paid for each in such proportions as may in the judgment of the commissioners be just and equitable,' was unconstitutional because it failed specifically to determine the mode of distributing the burden; that is as we understand it, since no assessments can be made except for special benefits, the act ought distinctly to require the assessments to be made on this basis; but the act did not exclude this basis, and would probably be held else. where as sufficient to support an assessment which was in fact made upon the right principle. See, however, Thomas v. Gain, infra. Neither absolute certainty nor exact equality is practicable in such matters and cannot be judicially exacted. A similar provision to that condemned in New Jersey may be found in many of the States."

McCague v. City of Omaha

MCCAGUE

v.

CITY OF OMAHA.

(Supreme Court of Nebraska, Feb. 23, 1899.)

Local Assessments-Illegal Sales-Recovery of Purchase Money from City. In absence of statutory authority, a city of the metropolitan class cannot be required to refund money received from a purchaser of real estate at a sale made thereof by the county treasurer for illegal special assessments or taxes imposed by the city. Pennock v. Douglas Co., 58 N. W. 117, 39 Neb. 293, and Merrill v. City of Omaha, 58 N. W. 121, 39 Neb. 304, followed.

Same Same-Same-Statutes.-Sections 69 and 94, c. 12a, Comp. St. 1889, and section 144 of chapter 77, do not authorize the recovery from a metropolitan city of moneys received by it under a tax sale made to enforce the collection of illegal special taxes levied by the municipality.

Caveat Emptor.*-The rule of caveat emptor applies to purchasers of real estate at tax sales.

(Syllabus by the Court.)

ERROR by plaintiff to Douglas County district court. Affirmed.

R. W. Breckenridge, for plaintiff in error.

W. J. Connell, Lee S. Estelle, and E. H. Scott, for defendant in error.

NORVAL, J. The facts upon which this action was predicated may be summarized thus: The city of Omaha opened and extended South Nineteenth street through Hartman's addition; and, to pay the costs and expenses thereof, the municipal authorities levied special assessments upon the adjacent lots, including lots 60, 61, 66, 67, 72, 73, *See note at end of case.

MC CAS 13