Mall v. City of Portland

Mr. Justice Bean,

after stating the facts in the foregoing language, delivered the opinion of the court.

1. It is the universal rule that a special assessment, like the one in question, does not bear interest unless the law so provides : Sargent v. Tuttle, 67 Conn. 162 (32 L. R. A. 822, 34 Atl. 1028 ). Unless, therefore, some general statute, or provision of the charter of the City of Portland, or of the bonding act to which reference has already been made, expressly or by clear implication authorizes the defendant to levy and collect interest upon an assessment for sewer purposes, payable in installments, as provided in section 5 of the bonding act, it cannot be done.

2. Now, it is not claimed that there is any general statute of the state touching the matter, nor does the provision of the municipal charter (section 131) that all general or special taxes shall bear interest at the legal rate from the time they become due or payable, apply to the payment of an assessment for improvements under the bonding act, where the property owners have availed themselves of the privilege of paying such assessments in installments, until after the amount thereof has been levied, as provided in said section 5, because such assessment, or installment thereof, does not become due and payable before that time. Docketing the amount of the assessment against the particular property in the city lien docket, as provided in section 3 of the act, does not render it due and payable. It only creates a lien on the property described therein, having priority over other liens or incumbrances, but such amount is not collectible until after the special tax provided for in section 5 of the act shall have been levied and become due and payable. Whenever an application for the privilege of paying the cost of an improvement in installments is made, and the *94 conditions of the law complied with, the assessment is then payable only as the installments become due, and in the particular manner pointed out in section 5. We must look, therefore, to the terms and provisions of the bonding act alone for authority to collect interest on the amount of such assessment at or prior to the maturity of such installments, and, if it is not found there, the plaintiffs must prevail in this suit.

3. It is claimed that the provision requiring the special tax to be equal to ten per cent, of the amount of the bonds issued for such improvement necessarily implies that it shall be such per cent, of the bonds and accrued interest thereon. But, even if this provision of the act stood alone, the argument does not impress us as sound, in viewof the fact that, if the interest on the bonds is to be included in the amount upon which the ten per cent, is to be estimated, it would be impossible to make the annual installments of an equal amount, or to pay the entire assessment and such interest in ten installments, as the act evidently contemplates, without the property owner being compelled, after the payment on the first installment, to pay interest on the entire amount of his assessment, notwithstanding the fact that he had previously paid a portion of the principal. But, however this may be, the question seems to be put at rest by the requirement immediately following the language referred to, that the special tax shall be equal to ten per cent, upon the amount docketed against each lot or parcel of land for and during the ten years next succeeding the date of issuance of such bonds. This clearly contemplates, not only that the installments shall be equal to ten per cent, of the amount docketed against the property, but that they shall be equal in amount, and that the entire assessment shall be paid in ten years. The amount docketed as a lien against the property is *95 necessarily the amount of the assessment, and a special tax of ten per cent, thereof would clearly not include any interest thereon. Some contention is made, based upon-the provision that, in addition to such ten per cent., an amount equal to any unpaid balance against such property, as might appear by the lien docket, shall also be included therein; but this evidently refers to installments, or parts of installments, which might remain unpaid after becoming due, and which, of course, would bear interest from the date of their maturity, under the general provisions of the charter.

4. It is also insisted that the provision authorizing the property owner to discharge the lien against his property by paying into the city treasury the whole amount of the assessment as entered in the lien docket, together with the full amount of the interest accrued thereon to the date of payment, indicates an intention on the part of the legislature that the property owners should pay the interest on bonds issued for such assessment. But this language is, in terms, confined to the payment of the assessment and accrued interest thereon, and, as we have already seen, there can be no interest on an assessment of this character until after it becomes due and payable. So that this provision must have reference to such interest as may have accrued upon unpaid installments after the maturity thereof. Under no construction which it seems to us can fairly be given to the language of the bonding act, or any provision of the city charter, is the defendant authorized to levy and collect interest on the installments for sewer or street improvements before such installments are levied, and become due and payable. That no such provision is made by law is, perhaps, unfortunate, and will impose on the general taxpayers of the municipality an inequitable burden; but it is an error for which the legislative department is alone re *96 sponsible, and which the courts are powerless to correct. It follows that the decree of the court below must be reversed, and the cause remanded with directions to overrule the demurrer, and for such further proceedings as may be proper, not inconsistent with this opinion.

Reversed.