Haggart v. Alton

SMITH, J.

Appeal from the circuit court of Brookings county. Action to recover an amount alleged to be due on a sewer certificate issued by the city of Brookings to the plaintiff, Haggart, as contractor, against property owned by defendants, for tjhe construction of sewerage. The complaint demands judgment for the amount of the certificate, $50 attorney’s fees, and prays that defendant’s property be sold according to law to satisfy the judgment. The complaint sets out in- minute detail each step in the proceedings of the municipal authorities, creating sewerage districts, -the contract under which the sewerage was constructed, the acceptance of the work, and other matters. The complaint is very voluminous, and no useful purpose would be ■ served by. an attempt to recapitulate its allegations and recitals. Defendants filed a general demurrer to the complaint, which was overruled. This appeal is from the order overruling the demurrer. The sewerage proceedings were under the provisions of chapter 213 of the Laws of 1903. Only two objections to the complaint are urged by appellant upon the demurrer: First. That chapter 213, Laws of 1503, provides for sewerage districts and contemplates .equality of special taxation only within subdistricts, and is unconstitutional *522 under the provision of section xo, art. 11, of the Constitution. Appellant contends that this section requires special taxes for local improvements to be uniform throughout the jurisdiction of the municipality levying the same. Second. That the complaint does not state a cause of action, for the reason that it fails to' allege the giving of the notice of hearing required by section 3 of the act of 1903. Section 1 of the act, among other things, provides that any city shall have full power to1 construct systems of sewerage in such manner and under such regulations as the city council shall deem expedient, but shall not enter upon such construction until such city shall have been divided into sewerage districts, nor until a plan shall have been adopted therefor. Section 2 provides that the city shall first cause diagrams of proposed plans to be prepared. Section 3 provides that, upon the completion of diagrams of the proposed sewerage, notice shall be given in the official newspaper of the city that plans for district sewerage have been prepared, and are open for inspection at the office of the city auditor; that all persons owning or interested in real estate in the district are entitled to examine the same at any time within 10 days after the first publication of the notice, and ¡to file objections thereto; that on the day specified in the notice the city council will be in session at the council chamber, to consider objections filed, and that all persons may then and there be heard; that such hearing- shall be within 10 days after the last publication of the notice, which must be published at least once a week, for two consecutive weeks. On the day specified the city council must take up and consider all objections to the proposed plans, and, when a plan is finally determined upon and adopted, a complete diagram thereof shall be prepared and filed in the office of ¡the ¡city auditor. Section 6 provides ‘that, after such plans have been adopted, whenever the city shall deem it necessary to construct any sewer, the city council shall, by resolution, declare the necessity therefor, and 10 days’ notice of the passage of such resolution shall be given by publication in the official newspaper of -the city, which notice shall state -the time and place when and where property owners may make objections to the construction of such sewerage. The complaint in this case does *523 not allege the giving of the first of these notices, namely, of the time and place of the meeting of the city council at which persons owning or interested in real estate in the district may file objections to the proposed plans of sewerage, as shown by diagrams. The complaint does allege that on March 23, 1907, the city council divided the city into two sewerage districts by ordinance, and caused diagrams and plans for a system of sewerage for each district to be prepared; that thereafter notice of the time and place of hearing and considering objections to said plans and to the construction of a sewerage system was given by publication of the following notice: “Notice of sewerage construction. Notice is hereby given that the city council of the city of Brookings, South Dakota, has under consideration the passage of a resolution declaring it necessary to construct a complete sewerage system in Sewerage District No. one (1) of said city entitled, ‘An ordinance relating to sewerage districts. Approved March 23, 1907/ according to plans and specifications for such sewerage system now on file in the office of the city auditor of such city, and that all property owners along the line of proposed sewers may appear before the city council at the council chambers in the city hall of said city on the 19th day of April, A. D. 1907, at eight o’clock p. m. of said day, and may then and there make objections to the construction of said sewer, and to the final passage of such resolution. Dated at Brookings, South Dakota, this 1st day of April, A. D. 1907.”

It is respondent’s contention that the act which provides for sewerage districts and for equality of special assessments or taxation within such districts is constitutional and valid, and that the notice above set forth is a sufficient compliance with the provisions of the statute, and that the trial court committed no error in overruling the demurrer. We shall consider these contentions in the order indicated.

[1] It was held.in Bailey v. Sioux Falls, 28 S. D. 118, 132 N. W. 703 , that section 17, art. 6, of the state Constitution, requiring all taxation to be equal and uniform, controls special assessments and special taxation within taxing districts. Whittaker v. Deadwood, 23 S. D. 538, 122 N. W. 590 , 139 Am. St. Rep. 1076 . *524 The declaration of that section that “all taxation shall be equal and uniform” embodies a general rule or principle applicable alike to ever}' form of taxation, whether it be special taxation or assessment of contiguous property,' for local improvements, or taxation for general corporate purposes. This provision is not a grant of power to the legislative branch of the government, but is a limitation upon legislative power expressly granted by other provisions of the Constitution.- ' Section io, art. u, of the Constitution, confers authority on the Legislature to vest •governing bodies of -cities, to-wn-s, and villages with power to tax for the purposes therein specified, first, by -special taxation of contiguous property for local improvements; and, second, by general taxation for corporate purposes. The -section reads as follows: “The Legislature may vest the corporate authority of -cities, towns and villages with power to make local improvements-, by special taxation of contiguous property, or otherwise. For all corporate purposes all municipal -corporations may be vested with authority to assess and collect taxes, but such tax shall be uniform in respect to persons and property within the jurisdiction of the body levying the same.”

[2] It is appellant’s contention that the latter clause, “such tax shall be uniform in respect to persons and property within the jurisdiction of the body levying the same,” applies to and is a limitation upon the power to grant municipal bodies authority to levy special taxes for local improvements, and requires that special taxes levied for local improvements shall be uniform upon all property within the jurisdiction of -the body levying the same. We think appellant is in error in this contention. The ■ two kinds of taxation contemplated by this section are different in character, application, and mode of levy.

It is settled by the decisions of this court, sustained by the great weight of authority, that special assessment -or special taxation is lawful and constitutional only when founded upon special benefits accruing from the improvement for which the tax or asssessment is laid. In very few, if any, cases would it be possible for a local improvement to specially benefit all -property within a municipality, and, if the construction contended for by *525 appellant be adopted, it is apparent that special assessments or taxation for local improvements must in such cases be held unconstitutional under that provision of section 13, art. 6, which declares that “private property shall not be taken for public use without just compensation.” Bailey v. City of Sioux Falls, supra; Searle v. City of Lead, 10 S. D. 312, 73 N. W. 101 , 39 L. R. A. 345; Whittaker v. City of Deadwood, 23 S. D. 538, 122 N. W. 590 , 139 Am. St. Rep. 1076 .

It is absolutely clear that section 10, art. 11, was intended to confer upon the Legislature power to authorize municipalities to make local improvements by special taxation of contiguous property or otherwise, and if it be held, as contended by appellant, that special taxation for local improvements must “be uniform in respect to persons and property within the jurisdiction of the body ■levying the same,” the latter provision of section 10 would in effect nullify the authority of the Legislature to authorize special taxation for local improvements, contained in the first clause of the section. To our minds it is entirely clear that the clause, “such tax'shall be uniform,” refers only to taxes levied for general corporate purposes, and not to special taxes or assessments for local improvements. But this view in no manner affects or modifies section 17, art. 6, of the Constitution, which requires that “all taxation shall be equal and 'uniform.” As applied to special taxation and special assessments for local improvements, the requirements that all taxation shall be equal and uniform' is fully met when special assessments or taxes are uniform as to all property benefited by the local improvements for which they are laid, in proportion to benefits conferred by such improvements. In Bailey v. City of Sioux Falls, supra, it was unnecessary to determine the constitutionality of chapter no, Laws 1909, which provides that cities may be divided into sewerage districts. The court there held that the municipal authorities had failed to proceed in accordance with the act itself, and for that reason.the proceedings were without authority and void. In the view we take of the present appeal, the same situation exists, but we are of opinion the public interests require that the question of the constitutionality of these acts authorizing the creation of sewerage districts be finally settled and determined.

*526

[3] In construing particular provisions of the Constitution, the same rule applies as in construing legislative acts, viz., that effect be given, if possible, to each and every part, and that a particular provision will not be so construed as to nulify the operation or effect of other provisions in the same Constitution or legislative act. This rule was applied in Bailey v. City of Sioux Falls, supra, where it was held that section 10, art. 11, granting the Legislature authority to vest municipalities “with power to make local improvements, by special taxation of contiguous property, or otherwise,” is limited by section 13, art. 6, inhibiting the taking of private property for public use without just compensation, and that the owner of private property could not be deprived thereof by means of special assessments or taxation for local improvements, regardless of special benefits to his property. To have held otherwise would have rendered the provision of section 13, art. 6, inoperative as applied to the taking of private property under the guise of special taxation for municipal purposes.

[4] Precisely the same result would follow were it held -that municipal authorities may be empowered to make local improvements by special taxation of all property “within the jurisdiction of the body levying the same,” regardless of benefits. And, if appellant is right in his contention, we must hold that special taxes may be levied for local improvements on all property within the municipality without regard to benefits or the power tO' authorize special taxation for local improvements must be denied entirely. The various provisions of the Constitution referred *o should be given such interpretation as to render them harmonious and operative, and this may be done by construing the language used in section xo, art. 11, as referring to distinct modes of taxation for separate and distinct purposes, and holding that the requirement that “such tax shall be uniform in respect to persons and property within the jurisdiction of the body levying" the same” applies only to taxes levied for corporate purposes, including general taxation for local improvements, where the municipal authorities see fit to adopt that mode instead of resorting to special taxation or assessments. We are sustained in this view by the almost unanimous decisions of courts of last resort in states hav *527 ing similar constitutional provisions. A review of the decisions would serve no useful purpose, and would extend this discussion beyond reasonable limits, and for that reason we shall not attempt it. We hold that the provision in the last clause of section io, art. ii, requiring that “the fax shall be uniform in respect to persons and property within the jurisdiction of the body levying the same,” does not apply to the preceding provision in the same section, relating to special taxation of contiguous property for local improvements, but that the clause last referred to is controlled by the provision of section. 17, art. 6, requiring all taxation to be equal and uniform. It was not necessary to decide that question in Turner v. Hand County, 11 S. D. 348, 77 N. W. 589 , and language used in that case, if construed as holding a different view, is obiter dictum, and dies not express the views of the court in the present case.

[5] Appellant’s second contention is that the complaint does not state a cause of action, in that it fails to allege the giving of one of the notices required in sewerage proceedings. The statute provides for two distinct notices and hearings. The first relates to the adoption of plans and diagrams for a sewerage system, and a hearing upon objections thereto. The statute then provides that at any time after plans and diagrams have been considered, adopted,-and filed with the city auditor a notice may be given of the time and place at which the necessity for the construction of the sewerage will be considered and determined, when all persons may appear and file objections. The paragraph of the complaint attacked by the demurrer appears to be an attempt to allege a combination of tliese two notices and hearings in one, upon the theory that hearing upon both questions under a single notice is substantial compliance with the statute. The complaint, however, sets out in haec verba the notice which was given. The language used in the notice makes it entirely clear that the hearing contemplated was not upon the adoption of the proposed plans and diagrams for sewerage, but to consider whether a necessity existed for the construction of sewerage. It is apparent from the notice itself, as pleaded, that the complaint does not allege either in substance or effect the giving of the initial notice required by sec *528 tion 3 of the statute. It is universally held by the courts and text-writers that notices required by statute as the foundation for these proceedings are essential to jurisdiction. Section 6 of the act in question provides that after notice the city shall, by resolution, declare the necessity for sewerage, and from the time of the adoption of such resolution the city council shall have jurisdiction to make the improvements therein specified, and assess the costs thereof upon the property benefited thereby. Respondent appears to construe the demurrer as an attack upon the sufficiency of the notice pleaded in the complaint to comply with the requirements of section 6 of the act. The notice is a sufficient compliance with that section. It recites that “the city council * * * has under consideration, the passage of a resolution declaring it necessary to construct a complete sewe'rage system, * * * that plans and specifications for a sewerage system are on file in the office of the city auditor, and that property owners along the line of proposed sewerage, may appear before the city council * * * and may then and there make objections to the construction of said sewer and to the final passage of such resolution.” The notice provides only for a hearing on the question of necessity, and 'does not purport to offer the property owner an opportunity to be heard on the question of benefits and assessments, which is contemplated by section 3 of the act. The real question presented by the record is the effect of the entire absence of one of the preliminary notices and hearings required. The notice published" contains a recital that plans and diagrams of the proposed sewerage are on file in the office of the city auditor, but does not contain even a recital that the notice required by section 3 of the act was ever given, or that a hearing was ever had as required by that section. Section 1 of the act expressly provides that the city “shall not enter upon such construction until a plan shall have been adopted therefor.” It is evident that the effect of the notice actually given cannot be enlarged in its legal operation or effect by allegations of the complaint which are merely legal conclusions. Respondent’s counsel contends that this notice and hearing afford the property owner a sufficient opportunity to be heard, not only on the question of the necessity of the proposed sewerage, but also to urge objec *529 tions to the plans of sewerage proposed. The case of Pittsburgh, C., C. & St. L. Ry. Co. v. Fish, 158 Ind. 525 , 63 N. E. 454 , cited by respondent, does not sustain this contention. The Indiana statute contains a provision for notice and a hearing upon the adoption of plans for proposed sewerage, and a provision for another notice and a hearing at which owners along the line of the proposed improvement may object to the necessity for the construction thereof. Burns’ Ann. Stat. Revised of 1894, §§ 4294, 4289. In the case cited the complaint contains express averments that notice of the proposed kind and character of the improvements, of the filing of plans, and of the time and place of hearing of grievances was given as required by section 4294, but no averment as to notice of adoption of the resolution of necessity required by section 4289. The court held that notice of the resolution of necessity was not essential to jurisdiction, or to the validity of the assessment, for the reason that its purpose was merely to invite the views and counsel of property owners, and followed the decision of that court in Barber Asphalt Paving Co. v. Edgerton, 125 Ind. 455 , 25 N. E. 436 , in which it was held that: ‘‘As to whether a particular improvement is or is not necessary must of necessity be left to the discretion- of the common council of the city where the improvement is to< be made. This question we think under the 'statutes in force in this state may he determined by such council without notice to the property owners who are to he affected by such improvement. Assessments to pay for the improvement are made upon the assumption that the property affected is benefited in a sum equal to the cost. But whether such'improvement does or does not benefit the property in a sum equal to its cost is essentially -a judicial question upon which the property owner is entitled to notice and a hearing.” -An examination of this and other decisions -of that court makes it entirely clear that the absence of an averment of the notice and hearing required by section 4294 above referred to would render the complaint fatally defective, -because of lack of jurisdiction over the persons of those affected by the proposed improvement. In the case of Barber Asphalt Paving Co. v. Edgerton, supra, that court *530 says: “It seems to be the settled rule that statutes granting municipal corporations power which involves the imposition of burdens upon private property are to be strictly construed, and where such statute requires the doing of some particular thing in its nature jurisdictional, as a condition precedent to the right of im- ■ posing such burden, the failure to do the thing required will render 'the whole proceeding void” — citing numerous decisions. In 2 Cooley on Taxation 1252-53, it is said: “The most fundamental and imperative of these (principles) is that the statute authorizing an improvement must be strictly pursued; not, indeed, with absolute literalness, but in all important particulars. The observance of every one of the substantial requirements must be regarded as a condition precedent to any valid assessment. None of the steps can ’be regarded as directory merely. * * * So, if they (the commissioners) are required to give notice of any particular step in the proceedings, a notice to the effect and for the time prescribed is indispensable.” The notice and hearing required by the provision of section 3, c. 213, haws of 1903, was evidently intended to afford the property owner an opportunity to be heard upon the question of benefits to his property and the burden to be imposed thereon under the proposed plans of sewerage. No such opportunity is contemplated at the hearing under the notice required by section 6 of the act, at which only the question of the necessity of the sewerage is to be considered. We are not quite clear whether it is respondent’s contention that from the time of the adoption of the resolution of necessity the city council acquired jurisdiction to make the improvements and assess the costs thereof upon property benefited, without the notice and hearing required by section 3 of the act. If such be his contention, we think he is clearly in error. The notice and hearing required by section 3 are essential as conditions precedent to the passage of the resolution required by section 6, declaring the necessity for the construction of sewerage. The proceeding’s required by section 3 are intended to give the property owner an opportunity to be heard upon the question of benefits, are for his protection, are mandatory in character, and constitute due process of law without which private property may not be taken for public use by special taxation or otherwise. *531 A substantial compliance with the provision's of this section is in•despensable to the jurisdiction of the municipal authorities in these proceedings. The complaint does not state the necessary jurisdictional facts. In Mason v. City of Sioux Falls, 2 S. D. 640, 51 N. W. 770 , 39 Am. St. Rep. 802 , it was held that statutes must be strictly complied with ■ to render property subj ect to costs of street improvement's, and that the cost of improvements not specifically designated in the resolution and published in the official paper could not be recovered. The court there said: “It is a well-settled rule that, when a municipal corporation seeks to impose upon citizens the burden of making public improvements and to hold the property of the individual liable therefor, the statute authorizing such improvements at the expense of the citizens must be strictly pursued.” Whittaker v. Deadwood, 12 S. D. 608, 82 N. W. 202 ; Ligerwood v. Michalek, 12 N. D. 348 , 97 N. W. 541 ; Coulter v. P. B. C. Co., 131 Mo. App. 230 , 110 S. W. 655 ; Swenson v. Greenland, 4 N. D. 532 , 62 N. W. 603 . See Cyc. 1011-1134; Auditor General v. Calkins, 136 Mich. 1 , 98 N. W. 742 ; Dumars v. City of Denver, 16 Colo. App. 375 , 65 Pac. 580 ; Chambers v. Satterlee, 40 Cal. 497 ; Ricketson v. City of Milwaukee, 105 Wis. 591 , 81 N. W. 864 , 47 L. R. A. 685; City of De Soto ex rel. v. Showman, 100 Mo.. App. 323, 73 S. W. 257 ; Petition of Manhattan R. Co. to Vacate an Assessment, 102 N. Y. 301 , 6 N. E. 590 ; Bolton v. Gilleran, 105 Cal. 244 , 38 Pac. 881 , 45 Am. St. Rep. 33 ; Cal. Improvement Co. v. Moran, 128 Cal. 373 , 60 Pac. 969 .

[6] Respondent next contends that the complaint is sufficient because it alleges facts which are made by statute prima facie evidence of the regularity of the proceedings necessary to fix defendant’s liability^ upon the assessment certificate, and that the admission of such facte by the demurrer establishes a cause of action. This contention is based upon sections 18 and 25 of the act, the first of which provides that acceptance of the work and issuance of the certificate of assessment to the contractor’s shall be conclusive evidence of the reg-ularity of all proceedings in “letting the contract, acceptance of work, and making the 'special assessment as herein provided.” The latter section provides that acceptance of the work by the city council upon the certificate of the city- engi *532 neer “shall be prima facie evidence that the contract has been complied with and the assessment exists.” It is sufficient to observe that both of these sections relate to the regularity of proceedings after jurisdiction has been acquired by publication of the notice giving the property owner opportunity to be heard upon the question of benefits, as required by Section 3 of the act, and not to the jurisdictional proceedings required.

[7] It is equally clear that these sections prescribe rules of evidence, and' do not purport to change or in any manner affect the ordinary rules of pleading. The precise point was determined in Himmelman v. Danos, 35 Cal. 441 . In that case the court said: “If, admitting all the facts stated to be true, the liability of the defendant does not follow as a legal conclusion, the complaint is bad. This is true of every complaint, regardless of the subject-matter. The performance of all conditions which are precedent to the liability of the defendant, whether founded upon a contract or a statute, must be alleged in some form, either general or special. In actions upon contracts, a general allegation of performance of conditions precedent is declared sufficient by our statute (Practice Act [St. 1851, p. 59] § 60), but a general allegation of the performance of conditions prescribed by a statute has not been so declared, and is not therefore sufficient (Dye v. Dye, 11 Cal. 163 ; People v. Jackson, 24 Cal. 630 ). The same rule prevails as to judgments and determination of courts, tribunals, boards, and officers of inferior or special jurisdiction. In favor of such the law intends nothing; hence, if the liability of the defendant depends upon them, the facts conferring jurisdiction must be specially alleged at common law; but, under our statute, an allegation that the judgment or determination was duly given or made is declared sufficient. Practice Act, § 59. In the present case the liability of the defendant depends upon the performance of the several steps enumerated in the statute by the officers of the ■city government. The complaint must show, by' either special or general averments of the character permitted by our statute, that the various provisions of the ‘Statute under which it is sought to charge the defendant were complied with, for, unless they have been complied with, the defendant is not liable. * * * If *533 they were not taken, the board had no power to award the contract, and hence no liability was cast by it or the subsequent steps, however regular they may have been, upon the defendant. * * * The alleged sufficiency of the complaint is grounded, however, by the respondent, upon a provision found in the thirteenth section of the statute in relation to street improvements, * * * which is to the effect that the assessment warrant and diagram with the affidavit of demand and nonpayment shall be prima facie evidence of the defendant’s indebtedness and of the right of the plaintiff to recover. Upon that -head it is sufficient to say that the provision in question does not establish a rule of pleading, but a rule of evidence only.” The rule thus announced was approved by that court in Oakland Bank v. Sullivan, 107 Cal. 428 , 40 Pac. 546 , where the court said: “We do not overlook the ruling in the case cited (Himmelman v. Danos), that the presumption declared by the statute is one of evidence, and not of pleading. The ruling is no doubt correct, and its effect is to require the statement in the complaint in cases" of this character of matters necessary to show the contractor’s right to recover, laying the presumption out of. sight.” The exact question is also considered in Welch v. Town of Roanoke, 157 Ind. 398 , 61 N. E. 791 . See Cyc. 1233-34-35; Cleveland, C., C. & St. L. Ry. Co. v. Edward C. Jones Co., 20 Ind. App. 87 , 50 N. E. 319 ; Burris v. Baxter, 25 Ind. App. 536 , 58 N. E. 733 ; Himmelman v. Townsend, 49 Cal. 150 . Section 138 Code of Civil Procedure, which provides that it shall not be necessary in certain cases to plead facts conferring jurisdiction, but, the pleading may state that a judgment or determination of a court or officer of special jurisdiction has been “duly given or made,” need not be considered here, for the reason that the complaint contains no statement or allegation which -could raise -the question of the application of that section. The complaint was evidently framed under the general rule, which requies that the pleadings in such cases shall allege performance of all conditions precedent to the liability of the defendant. Respondent’s contention that the rule announced in Himmelman v. Danos, supra, is repudiated in the later -'case of Raisch v. Hildebrandt, 146 Cal. 721 , 81 Pac. 21 , and other cases cited, is not correct. In that *534 case, as in the other cases cited, it is expressly stated that the complaint contains the averments necessary to a .complete cause of action on the lien, and the question there decided was the sufficiency of the proof when considered in connection with facts alleged in the complaint and admitted by the answer. And the case of Himmelman v. Danos was also cited by the court in the Raisch Case, as authority for holding allegations of the complaint material. Other questions are discussed in the briefs of counsel, which we deem it unnecessary to consider, for the reason that we regard the complaint as fatally defective for want of allegations which show a compliance with section 3 of the act under consideration.

[8] Respondent’s contention that irregularities in the proceedings are rendered immaterial by certain sections of the statute referred to as curative, on the theory that an act may declare any irregularity immaterial, where the particular requirement might have been omitted from the act, is erroneous as applied to this case. The Legislature is without power to declare that the steps essential to jurisdiction, the notice and hearing which constitute due proceess of law, shall be considered. immaterial. Respondent’s contention that appellant should be held estopped from denying the validity of the assessment or of the lien cannot be considered upon this appeal. The complaint contains no averments upon which an estoppel could be founded, even if the question could be raised by demurrer, which we do not decide:

The order overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.

IiANEY, J., not sitting.