Nichols v. City of Bridgeport

23 Conn. 189

• Court: Supreme Court of Connecticut
• Decided: June 15, 1854
• Status: Published

Opinion

Hinman, J.

The declaration contains a count for money had and received by the defendants for the plaintiff’s use, and also a count for the value of the land, taken and appropriated by the defendants, under the provisions of their charter, for a public street, or highway, within the limits of the city. The right of the plaintiff to recover, upon the second count, has not, however, been pressed, and as plaintiff’s argument rests upon the claim that^^.inB’of 1 plaintiff has not, in point of law, been taken,\n the grom that the proceedings are all void, we presume this count was intended to be abandoned. It| seems, therapy } fore, to be sufficient to say, in reference to iVStaty ft the 'J proceedings of the city authorities are void, tn^piaiffij; land has not been taken, and he can have no right to recover for it, as if it had been, and if the proceedings are not void, or, at least, inoperative, so far as the plaintiff’s rights are concerned, it must be because his land has been legally appropriated to the public use, as one of the legally constituted streets of the city; and, as this could not be accomplished, without first making just compensation for the land taken, it follows, as of necessity, that such compensation must have been made; and, in no event, therefore, can the plaintiff recover upon this second count.

Can he recover upon the money count ? If the proceedings of the city authorities are void, or inoperative, in respect to the plaintiff’s rights, it follows, that he can recover the amount of money, which he has been compelled to pay the city collector, on the warrant of alderman Burrall; but, if they were all valid proceedings, then the money was due to the city, and the plaintiff’s claim to recover it, fails. The plaintiff has had nothing paid to him for his land, taken by the extension of John street, but has been compelled to pay and has paid the sum of six hundred dollars, as an assessment for benefits, received by him, in respect to his land not taken by the extension of said street; and the claim first made is, that this assessment of benefits, whether made as a compensation for his land taken, or otherwise, is illegal and void, on the ground that it is an attempt to take private property for public use, within the familiar constitutional provision that such property shall not be taken for such use, without just compensation being made therefor; and this is the question we have first to consider.

The charter of the city of Bridgeport authorizes such an assessment of benefits to be made. That portion of the charter, which relates to the subject, will be found in the thirty-eighth and forty-second, and the intermediate sections; and it is proper here to remark that we do not assent to a claim made by the plaintiff’s counsel, as to the proper manner of looking at these sections, for the purpose of giving a construction to them. It seemed to be assumed that we were to look at these several sections, independently of each other, as if they were each treating of a single, separate, distinct and several matter, and as having no relation to each other; whereas, as we look at them, they all relate to the same general subject, viz., the laying out, or altering, extending or enlarging of any new highway, street, public walk, public avenue, or public landing place in the city; also, the establishment of lines on the lands of proprietors, adjoining the streets and public avenues, between which and the streets, or public avenues, the proprietors are prohibited from erecting buildings, and the making of compensation to persons injured by these improvements, either in respect to the taking of these lands or the establishment of lines for building, and the assessment of benefits to the owners of lands, or buildings benefitted thereby, for the purpose of raising the means with which to make such compensation. The importance of this, however, will be made more apparent, when we come to consider the legality of the assessment in this ease, in point of form. We are now only upon the constitutionality of the assessment of benefits, without respect to the point whether the proper course was taken in this particular case.

The forty-first section provides that “ whenever any highway, street, public walk, public avenue or landing place in said city shall be laid out or altered, or whenever any line shall be designated upon the land of any proprietor, between which and any highway, street, public walk, or public avenue in said city, such proprietor shall be prohibited to build, said court of common council shall have power, and it shall be their duty to ascertain what person or persons, owning or interested in lands or buildings in said city, will be specially benefitted by such lay-out, alteration or designation, and to apportion among, and to assess to be paid by such person or persons respectively, the whole, or such part as they shall judge reasonable, of the damages caused by such lay-out, alteration, or designation,” and then the section goes on to provide how the benefits thus assessed shall be collected.

In the case of Nicholson v. The New York & New Haven Railroad Co., 22 Conn. R., 174, the superior court instructed the jury that, in estimating the damages caused to the plaintiff’s property, by the defendants5 making an embankment on his land, in one of the streets of New Haven, to such an extent as to make it necessary for him to raise up his buildings from their original foundations, to enable him to gain access to them, which embankment was rendered necessary in consequence of the construction of the defendants’ railroad, the jury should allow the defendants the local, personal, and particular advantage, accruing to the plaintiff’s premises from the construction and use of the road; and this court were unanimously of opinion that that instruction was correct. The point then arose upon the words of the charter of the New York and New Haven railroad, which allowed to persons, whose real estate was taken, or injured, just damages; and it was said, in that case, that the practice of selectmen and county commissioners, in laying out ordinary highways under the statute, was to consider the local and peculiar benefit which a proprietor whose land is taken, receives by the new highway, in respect to his land not taken, but which is contiguous to the road. 22 Conn. R., 88. This decision is a full and perfect answer to so much of the plaintiff’s argument, as rests upon the idea that, because some portion of his land was taken, by the extension of John street, therefore, he must have sustained damage thereby. It is obvious, that in point of fact, the plaintiff’s land might be so situated, as to be greatly benefitted by the opening of the new street through it; and while it is true that there is no power, and ought to be none in the government, to thrust a benefit on an individual, and then compel him to pay for it, as a mere abstract proposition, yet we think it would be a perversion of the constitutional provision, in respect to compensation for property taken for public use, to hold, that the government must, in all cases, pay for the property taken, irrespective of the local and peculiar benefit which the party receives thereby. While it is unjust that property should be taken for public use without compensation, it is equally so, that any individual should be paid for a benefit he has received by a public improvement, whether it is thrust upon him or not. Public improvements are not made at the call of any single individual, nor are they denied, because one or more individuals, whatever may be their interest in regard to them, may feel aggrieved by them; but they are made, because the public require and need them; and when so required, individuals, who are very much benefitted by them, ought, surely, to rest satisfied with them, without tenaciously insisting upon compensation for these benefits. These principles are fully sustained by numerous decisions in Massachusetts, New York, and elsewhere. Owners of ground v. Mayor of Albany, 15 Wend., 374. Commonwealth v. Justices of Norfolk, 5 Mass., 430. Commonwealth v. Cony, 2 Mass., 489. White v. County Commissioners of Norfolk, 2 Cush., 361.

But the plaintiff has not only been denied compensation for his land, taken by the extension of John street, but he has been assessed, and compelled to pay the sum of six hundred dollars, as for a benefit he has received by the extension. This assessment, we have seen, is authorized by the forty-first section of the charter of Bridgeport, but it is claimed that this section of the charter is unconstitutional and void. Provisions of a similar character to this are contained, we believe, in most, if not all, the city charters in the state, either in respect to the laying out or improvement of streets, or in respect to public parks, side-walks and sewers, and probably for many other city purposes; and these provisions, to a greater or less extent, have been acted upon, ever since the organization of cities in the state, and although questions, in respect to the exercise of this power, have frequently arisen in the courts, yet the constitutionality of the power itself has not, so far as we are advised, been seriously questioned before ; certainly, it has not been so questioned in our highest courts. Surely, the long acquiescence of the community, in the exercise of this important power, and the repeated sanction of. it by the legislature, in chartering our cities, ought to be some evidence of the legality of it. It is difficult to believe that a doubtful power of this sort, would be long submitted to, without question. But we agree that this is not conclusive upon it, however persuasive it may be. But what objection is there to the exertion of such a power? It is said that it takes the property of individuals; that is, their money, for public use, without any compensation therefor. This is not so, either in theory, or in fact. If- the assessment has been truly and justly made, the fact must be regularly ascertained to be, what the theory of the proceeding supposes it to be, viz., that the party whose money is taken, is locally and peculiarly benefitted, over and beyond the ordinary benefit which, as one of the community, he receives in all public improvements, to the precise extent of the assessment. It is no answer to this, to say that the power may be abused; that is true of every power, and whether this particular power is so liable to'be abused, as to make it improper that it should be vested in the city corporations, is a matter of which the legislature must be the sole judge. The legislature saw fit to authorize the city authorities to lay out new streets, and public avenues, and instead of throwing the expense on the whole city, to be raised by a general tax, it authorizes the expense of the several new improvements to be assessed upon those, who, “ owning or interested in lands, or buildings in said city, will be specially benefitted by such lay-out, alteration or designation, and to apportion among, and to assess to be paid, by such person or persons respectively, the whole, or such part as they shall judge reasonable, of the damages caused by such lay-out, alteration or designation.” Now, unless there is some inherent difficulty in ascertaining who are the persons thus specially benefitted, we see no more objection to this mode of taxation for a public improvement, than there is in all other modes. From the very nature of the subject, the power of taxation is an arbitrary power, which, when exercised by the government itself, is limited only by the discretion of the legislature, and when exercised by subordinate bodies, is limited by the object's for which the legislature has seen fit to authorize it to be exercised, and by such restrictions as the legislature has seen fit to prescribe, unless, indeed, it is further limited by some constitutional provision. But the only provision that can be found, at all bearing upon this subject, in our constitution, is the one already alluded to, that “ the property of no person shall be taken for public use, without just compensation therefor, and this has respect to property taken by the right of eminent domain, as where the land itself is taken for a highway or other public work, or where property is directly taken for the use of the government, and has no reference to the collection of taxes where money is taken as the contributive shares of individuals to the public burdens. The rule of taxation authorized by the charter, and which, in this particular case, the authorities of Bridgeport adopted, is certainly as equitable as any other. It attempts to apportion each man’s tax to the benefit which he is to receive from the improvement, for which it is expended. Most of our highways are laid out by the selectmen of the towns, and the expense is borne by the town in which the highway is located, though in regard to many of them, the inhabitants of the towns have a much less interest than the public, beyond the local limits of the town; and in regard to many others, they are principally for the accommodation of some, perhaps a small portion of the town’s inhabitants. But the towns bear the burden, because the legislature has thrown it upon them. It might, with the same propriety, have thrown it upon the counties, or even upon the lesser territorial corporations, and although injustice may occasionally be done, by compelling a small town to construct an expensive bridge, for the benefit principally of persons outside of its limits, yet the general operation of the law is, perhaps, as equitable as any system which could be devised. At any rate, we have never heard it agitated, as a debatable point, that the system was so unjust as to be unconstitutional or illegal.

We think the views, which we have here expressed, may fairly be drawn from the class of cases already cited, in which it has been held, that the local and peculiar benefit which a party receives by the laying out of a highway, or other like public improvement, through a portion of his land, maybe considered and deducted from the damage he has received, by the taking of another portion of his land, for the purpose of making the improvement itself. If you can deduct the benefit from the value of the land taken, then it follows, that where the benefit exceeds the value of the land, the property has sustained no damage, and nothing can be allowed him for his land, which has been taken for public use. See 2 Cush., 361. But, as the constitution is imperative, that private property cannot be taken without just compensation being made therefor, it follows, that the estimated benefits must be considered, and treated as the compensation for the land taken, and the only compensation to which the party is entitled. This, however, is, in effect, but one way of taxing an individual, peculiarly benefitted by the laying out of a highway, for a portion, and it may be only a portion, of his just share of the whole tax, for the public improvement. If you can, in this way, tax one individual for the whole, or a part of his share of the public burden, it seems to follow, that you can, for the same reason, and on the same ground, viz., the special and peculiar benefit he has received, or is to receive by the improvement, tax every other individual who is similarly situated. And if you can tax him to the extent of the full value of the land actually taken, there is no reason that will limit the tax to that precise amount, or to any amount, short of the full value of the benefit he receives, provided all others, similarly situated, are taxed proportion ably.

But the point we are now considering, although it has never before come up for consideration in this court, is not a new one to the profession; and it has very lately received the careful examination of the court of appeals, in New York, which, upon full argument, and in view of all the authorities, which could be brought to bear upon the question, came unanimously to the conclusion, that where a statute “ authorizes a municipal corporation to grade and improve streets, and to assess the expense among the owners and occupants of land, benefitted by the improvement, in proportion to the amount of such benefit,” it is a constitutional law; that such an assessment is an exercise of the power of taxation, vested in the state government, and is not in conflict with any provision of the constitution. The People ex rel. Griffin v. The Mayor, &c., of Brooklyn, 4 Comstock, 419.

As the constitution of New York, in relation to every point, which can be supposed to have any bearing upon this question, does not differ, in any essential particular, from our own constitution, this decision of that learned court, so lately made, ought to have a controlling influence, upon the question, if we had doubt in relation to it, on the ground of principle; especially, in the absence of any well considered case to the contrary; for we think, it is shown, in the opinion expressed in this case, that the contrary doctrine, which at one time, seemed to prevail, in Kentucky, cannot now be considered, as the law of that state. See the cases decided in Kentucky, referred to by Judge Ruggles, in 4 Comstock, 429.

But objections are made to the regularity of the proceedings, resulting in the assessment of benefits.

In the first place, it is insisted, that, as it appears the plaintiff’s land was valuable, damages should have been allowed him, as a matter of right.

This objection, has been incidentally answered already. Aside from the question of benefits, he was undoubtedly entitled to damages; but, if we are correct, in what has been said, then he was only entitled to the excess of damage, over his local and peculiar benefits; and, if there is no such excess, then he has suffered no damage, within the meaning of the constitutional provisions, requiring property, taken for public use, to be compensated for; for the reason, that he has obtained compensation, in the increased value to him, of his adjoining land, not taken for such use.

The plaintiff further claims, that the freeholders to assess damage, under the 38th section of the charter of Bridgeport, are, by the terms of the charter, appointed for the mere purpose of assessing damage, irrespective of any benefits; and that a different body, the common council, must ascertain, assess, and apportion the benefits. And in connexion with this, it is claimed, that the record does not show, that the persons appointed to assess damages, were freeholders, or residents of the city.

Some portion of this claim is well founded, undoubtedly. The appointment of appraisers, to estimate the damages to proprietors, caused by the laying out and extension of John street does not show, that the persons appointed, were either freeholders, or residents of Bridgeport; and although the warrant, for the collection of the assessment, against the plaintiff, which professes to give a history of all the proceedings, does state, that those persons, were in fact, freeholders of the city, yet we cannot think this is proper evidence of the fact. This fact can no more be shown by a statement in the warrant, than a judgment can be shown, by a statement in an execution, or by parol testimony, which no one would claim to be proper.

The rule undoubtedly is, that where it is attempted to acquire title to land, or to take from a proprietor his right to the unrestrained use of it, in invitum, and under the provisions of positive law, and in derogation of the common law, every requisite of the statute must be complied with, and should appear on the face of the proceedings, under which the property is attempted to be taken. Mitchell v. Kirtland, 7 Conn. R., 229. Hobart v. Frisbie, &c., 5 Conn. R., 592. Booth v. Booth, 7 Conn. R., 350.

And where it becomes necessary, for a party to show a fact like this, the due appointment of certain officers to make an appraisal, it-should be shown by the record, unless it appears the record is lost, in which event, secondary evidence of its contents may be proved. Griffin v. Rising, 2 Cush., 75. Nor can we sanction the defendants’ claim, that, by his appeal to a judge of the superior court, or his hearing before freeholders appointed by the judge, the plaintiff waived the irregularity. It appears to us, that the fact, that the persons whom the mayor was bound to appoint appraisers, to assess damages to persons, whose lands were taken for public use, were to be freeholders of the city, was a jurisdictional fact, which could only be shown, by the appointment itself, or the record of it; and if the appraisers appointed in this case, had no jurisdiction, and no power to make any appraisal, because it did not appear that they were freeholders of the city, then it seems, the appraisal they did make, was void, and there was nothing to appeal from.

If we looked at the several sections of the charter of Bridgeport, as entirely separate and distinct from each other, as the plaintiff views them, we should have great difficulty in coming to any other result, than that the attempted appraisal of damages to the plaintiff, haying failed, in consequence of the appraisers not being freeholders of the city, the whole proceedings must be void also; and such would be the result, if they rested upon the legality of the appraisal under the thirty-eighth section of the charter. We have suggested, however, that we do not so look, at the charter. The object must be to come at the intention of the legislature ; and to do this, we take all the sections, bearing upon the general subject of taking property for public use, together; and the whole, as connected with certain provisions, directing, and prescribing, the means of making compensation therefor. And, in view of the subsequent proceedings, which have been had in this case, it appears to us, that the difficulty, which has been suggested, has been cured by those .proceedings.

The thirty-eighth section of the charter prescribes the mode of laying out streets, and provides for the assessment of damages caused thereby. The section is silent in respect to the assessment of benefits; but this court held, in a late case, that similar provisions' in a railroad charter, necessarily meant, by the word damages, the real, actual injury, over and above the special and peculiar benefit which the land owner received by the improvement. The committee of freeholders, then, in order to estimate correctly the real injury, must examine into the benefits, so far as to see whether they equal the damages, and if they do not, they must necessarily enquire what the benefits are, in order to deduct them from the damages; but when it is once found that the benefits equal, or exceed the damages, their powers are at an end, and they can only return, that the party whose land has been taken, has suffered no damage, as they are not appointed to assess anything but damages.

This has been understood to be the law, by all parties', throughout these proceedings. Hence, no damages have been assessed by anybody to the plaintiff, while damages were assessed to all others, who were -differently situated. The committee, appointed by the mayor, after assessing the damages of all persons, whom they found to have been injured, close their report by saying, that no other persons have sustained damage by the extension of John street, and the committee appointed by the judge of the superior court, on the plaintiff’s appeal, say expressly, that the said David B. Nichols has sustained no damage; and although these proceedings were void for the reasons suggested, they show clearly how all parties have construed this section of the charter.

The forty-first section of the charter, provides for the assessment of benefits, by the court of common council; and on the 15th of July, 1850, that body appointed a committee to make an assessment of the benefits to proprietors, by the extension of John street. On the 22d of July, the committee report a list of individuals benefitted by the extension, and among them is the plaintiff, who is assessed, and set in the list, as benefitted to the amount of six hundred dollars. This report was accepted; the plaintiff was notified of it, and he appealed to a judge of the superior court for a review, and a disinterested committee of freeholders of the county, appointed by the judge, after a full hearing, reassessed the plaintiff’s benefits, by the extension of this street, at the same sum of six hundred dollars.

The plaintiff claims that this assessment was also void. He insists, that no assessment of benefits can be made, until it has been, in some way, regularly determined that no injury or damage has been suffered; and that this can only be done by a valid finding, under the thirty-eighth section of the charter: we think otherwise. If the appointment of appraisers of damages, by the mayor, had shown, that the persons appointed, were freeholders of the city, it would have regularly appeared, from their report, that the plaintiff had suffered no damage; but still they would have had no power to assess benefits, and it would have been necessary to have had an assessment under the forty-first section; and the common council, or their committee, under that section, must necessarily take into consideration the damage to the plaintiff, so far as to see that it did not amount to, or exceed the benefits; otherwise, there could be no benefits to ascertain and assess. As the appraisers of damage could only appraise the real damage, or the excess over the benefits, so the assessors of benefits could only assess the excess over the damages: and we do not see why a regular finding, by a competent board, under the charter, that the plaintiff has not been damaged by the extension of John street, is not necessarily involved in the finding, that he has been benefitted thereby, to the extent of six hundred dollars.

It was said, that the legislature never intended to constitute two boards, having jurisdiction over the same subject matter. But, to the limited extent which we have indicated, it appears to us otherwise. These two boards are so constituted, that it is not possible for their decisions to conflict. If the first committee find no excess of injury, they have nothing to appraise; and if the common council find no excess of benefit, they have nothing to assess; and as the assessment of benefits is in the nature of a tax, there seems no impropriety in its being vested in the board which has jurisdiction over the mode of taxation where taxes are levied by the city. Besides, the legislature has made such provision on the subject as it thought proper, and we have nothing to do with the mere question, whether the mode prescribed is the most convenient that could be devised.

It was said, that it does not appear that the common council made any attempt to agree, in respect to the plaintiff’s damage. But the committee, who laid out the street, report to that board, that they were unable to agree with any of the parties whose lands were taken ; and this report was accepted. We think this sufficient, until something is shown to .the contrary.

Again, it was objected, that no notice was given of the time when the committee of the common council assessed the benefits. The duties of this committee were analogous to the duties of town assessors; and there was no more necessity of their giving notice, than in the 'case of ordinary assessors of taxes; the charter does not require them to do so. After the assessment was made, they gave notice to Mr. Nichols, and he then exercised his right of appeal to freeholders appointed by a judge of the superior court; and before the board to which he appealed, he had a full and fair hearing, which resulted in a reassessment of the same sum, that had been assessed by the committee.

What is meant by the claim, that the benefits were not properly apportioned, we do not know. The committee reported a list of persons owning lands, &c., who were specially benefitted, by the extension of the street, with the amount to which each was benefitted. We do not see what more could be done by way of apportionment.

Again, it is claimed, that the order to pay, and the warrant to collect the assessment, issued against the plaintiff alone. There is nothing to show the reason of . this, or that there was any impropriety in it. If the others paid their assessments, without the necessity of resorting to any compulsory measures, we do not think that the plaintiff ought to complain of it.

Another claim was, that the damages which other persons had suffered by the extension, were ordered to be paid out of the city treasury; and could not, for that reason, be after-wards claimed of the persons benefitted. We find no foundation for this, in the record before us; and, if the fact was so, we see no objection to it. The city might pay the damages, and then reimburse itself by the assessment and collection of the benefits, as well as to cause the benefits to be paid directly to the parties injured.

Lastly, it is insisted, that, as the committee to ascertain benefits do not appear to have been freeholders, their assessment was void. But the charter requires that the court of common council shall ascertain the benefits; and the mode of doing it is not prescribed. For convenience, a committee of the board was appointed, who made the assessments, and reported them to the board, and t|gg report was accepted. It th|US,,l5.ecaj^]e the act of the court of common council, and there is no provision that that body shall be composed of freeholders.

Upon the whole case, therefore, we advise that judgment be rendered for the defendants.'

In this opinion Waite, J., and Ellsworth, J., concurred.

Church, C. J., and Storrs, J.,

were of opinion, that, as it did not appear on the face of the proceedings, in laying out the street or highway, for the benefits of which the plaintiff was assessed, that the persons appointed to estimate, and who estimated the damages sustained by him by such layout, were freeholders of the city of Bridgeport, as was required by the thirty-eighth section of the charter, under which those proceedings took place, the said proceedings and laying out were ineffectual and void; and that this defect in the proceedings was not cured by the subsequent proceedings’; and that as the said street or highway was not legally established, the plaintiff was not liable, under the preceding section, to be assessed for benefits received by him by said laying out, and consequently, was entitled to recover the sum, collected of him, for such benefits.

Judgment for defendants.