Gilmore v. Hentig

The opinion of the court was delivered by ~V ALEN TINE, J.:

This was an action, brought on March 11, 1884, in the district court of Shawnee county, by F. G. Hen- *164 tig and others against George T. Gilmore, county clerk, Bradford Miller, county treasurer, and the city of Topeka, to perpetually enjoin the defendants from collecting certain sewer taxes levied by the city of Topeka upon the lots of the plaintiffs in said city. The action was tried by the court without a jury, and the court made certain special findings of fact and ■conclusions of law, and rendered judgment upon such findings and conclusions in favor of the plaintiffs and against the defendants, perpetually enjoining the defendants from collecting, ■or attempting to collect, said taxes. The defendants, as plaintiffs in error, now bring the case to this court for review, and .allege error in the third conclusion of law and in the judgment rendered by the court below.

The defendants in error, plaintiffs below, claim that the judgment of the court below is correct, for the reason that the taxes levied upon their lots are utterly null and void; and they •claim that the taxes are utterly null and void for the following reasons: (1) That the statute under which such taxes were levied is unconstitutional and void, for the reason that it does not provide for any notice being given to the owners ■of the property taxed, or for any opportunity for them to be heard with reference to such taxes, and no sufficient notice was in fact given; (2) that said statute is unconstitutional and ■void, for the further reason that it does not provide for levying the taxes with any reference to the benefits that might result to the owners of the property taxed from the construction ■of the adjacent improvements; and the taxes were not in fact levied with any reference to resulting benefits; (3) that there was no detailed estimate made by the city engineer, and the ■estimates that were made were not under oath; (4) that the mayor and council, instead of determining for themselves what the size, location and grade of the sewers, and all the other necessary requirements in the construction of the sewers should be, delegated such authority to the city engineer; (5) that the form of the oath taken by the appraisers of the value of the lots was not the form required by the statute, and was insufficient; (6) that the taxes levied were in excess of the *165 estimates made by the city engineer of the cost of constructing the sewers, and even the estimates themselves as thus made were fifteen per cent, in excess of the real estimates of the cost of the work.

The statutes referred to by counsel as being specially applicable to this case are §§19 and 22 of the first-class-city act, which read as follows:

“ Sec. 19. The mayor and council shall have power to provide for a system of sewerage and drainage for the city, or any part thereof, and to build and construct sewers or drains by districts or otherwise, as the mayor and council may designate. The cost and expense of constructing the same shall be assessed against the lots or pieces of ground contained in the district in which the same is situated, and the cost of same shall be levied and collected as one tax in addition to other taxes and assessments, and shall be certified by the city clerk to the county clerk, to be placed on the tax-roll for collection, subject to the same penalties and collected in like manner as other taxes, as provided by law: Provided, That where any property has paid its full proportion for general sewers and drains in one district, it shall not be transferred to any other made liable for taxation for sewers and drains therein.” (Laws of 1881, ch. 37, § 19.)

“ Sec. 22. Before the city council shall make any contract for building bridges or sidewalks, or for any work on streets, or for any other work or improvement, a detailed estimate of the cost thereof shall be made under oath by .the city engineer, and submitted to the council; and no contract shall be entered into for any work or improvement for a price exceeding such estimate, and in no case shall the city be liable for any allowance beyond the original contract-price for such work.” (Laws of 1881, ch. 37, § 22.)

This section was amended on March 7, 1883, and it now reads as follows:

“ Sec. 22. Before the building of any bridge or sidewalk, or any work on any street, or any other kind of work or improvement, shall be commenced by the city council, or under their authority, a detailed estimate of the cost thereof shall be made under oath by the city engineer and submitted to the council; and in all cases where the estimated cost of the contemplated work or improvement amounts to one hundred dollars, sealed proposals for the doing or making thereof shall be *166 invited by advertisement, published by the city clerk in the •official newspaper of the city for at least three consecutive days, and the mayor and council shall let the work by contract to the lowest responsible bidder, if there be any such whose bid does not exceed the estimate. If no responsible person shall propose to enter into contract at a price not exceeding the estimated cost, all bids shall be rejected and the same proceedings as before repeated, until some responsible person shall by sealed proposal offer to contract for the work at a price not exceeding the estimated cost. In no case shall the city be liable for anything beyond the estimated cost, or the original contract-price for doing such work or making such improvement. All sidewalks shall be built by contract, advertised for as herein provided. Before any such work or improvement, except building sidewalks, shall be commenced, the money to pay therefor must be set aside in the city treasury by an appropriation ordinance, regularly passed and published, and it shall be the duty of the city treasurer to take notice of such ordinance and be governed thereby.” ( Laws of 1883, ch. 34, § 3.)

There were three estimates in all made by the city engineer —two of which were made and filed prior to the foregoing amendment of § 22, and the other was made and filed afterward. They were filed respectively as follows: June 5,1882; August 29, 1882; and March 12, 1883. The most of the transactions and proceedings, and indeed all of-the transactions and proceedings which had for their object the charging of the property of the plaintiffs below, defendants in error, with special taxes, took place after the taking effect of said amendment of § 22.

"We suppose that in all cities of any considerable size a system of sewerage and drainage is absolutely necessary for the promotion of the health and comfort of the inhabitants, and to guard against epidemics and diseases generally, from the accumulation of filth and impurities. Both public and private individuals are interested in the construction of proper sewers and drains. But a proper system of sewerage and drainage can seldom if ever be brought into existence, except through the instrumentality of the public authorities. Individual effort is generally inadequate. The public has such an inter *167 est in the improvements that it may order their construction, .and the individuals who can use them, and whose property is specially benefited thereby, have such an interest in them that they may be ordered and compelled to pay for them, by paying special taxes levied upon their property to pay for their construction. Of course,.however, only those whose property is specially benefited by the improvements can be compelled to pay such taxes. Special taxes to pay for sewers and drains can be levied only upon the property of persons who can use such sewers and drains, and not upon persons who cannot use them. And the taxes should be apportioned in accordance with the special benefits received by each individual severally. Persons whose lots do not abut upon a sewer or drain, or some-branch thereof, but who would have to construct a ditch or sewer or drain through some other person’s premises in order to reach the public sewer or drain, would of course not be liable to pay such taxes, as evidently they could not of their own choice and own volition use the public sewer or drain ; .and persons whose lots are lower than the public sewer or drain, and who could not force their sewage and waste waters up-hill to the public sewer or drain, would also, of course, not be liable to pay special taxes for the construction of the same. In these particulars, the use of sewers and drains differs from the use of public streets and alleys; for persons whose lots .abut upon any public street or alley in a city may by reason thereof, and in connection with their lots, use all the streets and alleys of the city; and this whether their lots are higher or lower than the particular street or alley upon which their lots abut. Hence arguments in cases where special taxes have been levied to pay for street improvements cannot, in .all cases, be made applicable in cases where special taxes have been levied to pay for the construction or maintenance of sewers or drains. And while there is a distinction between taxes for street improvements and taxes for the construction of sewers and drain, there is a still broader distinction between general taxes levied for general revenue purposes, and local or special taxes levied for the payment of local improve *168 ments such as streets and alleys, and sewers and drains. One is levied directly for public purposes, although it may indirectly and remotely be beneficial to private individuals; while the other is levied directly for the purpose of procuring payment for the special benefits conferred upon individuals, although the improvement may also be beneficial to the public-generally. Special taxes should be levied only for special benefits conferred upon the property of the individuals taxed,, and never for the general benefits received and shared by all the members of the public in general; while general taxes, should be levied only for the public benefit. To levy a special tax upon the property of particular individuals for general revenue purposes, would be a violation of section 1, article 11,. of the constitution. (Hammett v. Philadelphia, 65 Pa. St. 146; Tidewater Co. v. Coster, 18 N. J. Eq. 518; Dyar v. Farmington Vil. Cor., 70 Me. 515 .)

In street improvements it is sometimes difficult to separate the special benefits to individuals from the public benefits to all, for the two are sometimes so intimately connected with each other that they cannot well be separated. The ability of an abutting lot-owner to pass directly from his lot into a public street, and from the street to his lot, is a special benefit as to him; yet to travel upon the street in front of his lot, or to. or from the line of his lot, is a general benefit which he may enjoy in common with all the other members of the public. (Trosper v. Comm’rs of Saline Co., 27 Kas. 391, 393, 394 .) And because of this difficulty in separating the two kinds of benefit from each other, injustice may often be done, and sometimes is done. But such need not often be the case with respect to taxes for the construction of sewers or drains. With respect to sewers and drains, the general and the special benefits are usually more distinct, and special taxes may be levied for the payment for each kind of benefit with greater certainty.. With respect to sewers, it may generally be known almost to a certainty just what particular sewer or sewers will carry off or assist in carrying off the particular sewage of each particular lot-owner; and only those who can use such sewer or *169 sewers should be taxed specially to pay for their construction. or maintenance; and each should be taxed specially only for the amount of the special benefits which the sewer or sewers might confer upon him; and each should be taxed specially precisely in proportion to the benefits which each might individually receive. As illustrating these propositions, we would refer to the following authorities: Thomas v. Gain, 35 Mich. 156 ; Tide-Water Co. v. Coster, 18 N. J. Eq. 518; Cleveland v. Tripp, 13 R. I. 50; Hammett v. Philadelphia, 65 Pa. St. 146; Washington Avenue, 69 id. 352; Nichols v. Bridgeport, 23 Conn. 189 ; City of Hartford v. West Mid. Dist., 45 id. 462; Dyar v. Farmington, 70 Me. 515 ; Crawford v. The People, 82 Ill. 557 ; City Praying for Opening Streets, 20 La. An. 497; 2 Desty on Taxation, 1237, 1238. Some of these cases are with reference to sewers and drains, but the most of them are with reference to street improvements; but all illustrate the limitations placed upon the levying of local or special taxes.

Also, before special taxes can be made a fixed and permanent charge upon the property of individuals, the owners must have notice thereof, with an opportunity to be heard, and an opportunity to contest their validity and fairness. (Gatch v. City of Des Moines, decided by the supreme court of Iowa, January 31,1884; 3 Am. and Eng. Cor. Cases, 622, and note, and cases there cited; Thomas v. Gain, 35 Mich. 156 ; Lampson v. Drain Comm’rs, 45 Mich. 150 ; City of Nashville v. Weiser, 54 Ill. 246 ; Butler v. City of Chicago, 56 id. 341 ; Stuart v. Palmer, 74 N. Y. 183 ; Sewell v. City of St. Paul, 20 Minn. 511 ; State, &c., v. Road Comm’rs, 41 N. J. L. 83; County of Santa Clara v. S. P. Rld. Co., 13 Am. & Eng. Rld. Cases, 183.)

This proposition will indeed apply to all taxes upon property, general as well as special. With reference to general taxes, however, the statutes are usually a sufficient notice to the owners of property; for the statutes themselves usually provide for levying and collecting such taxes annually, and fix a time within which the assessment shall be made, a specific time and place for the equalization of the assessment, a specific time *170 ■and place for the levying of the taxes, a time within which the amount of the taxes shall be placed upon the tax books, and a specific time for the tax books to be delivered to the tax collector or treasurer, aud a specific time for the taxes to become a lien upon the property taxed. Hence it is geuei’ally unnecessary to give any specific notice with reference to the assessment or levy of general taxes. (Gulf Rld. Co. v. Morris, 7 Kas. 226 .) Rut the statutes alone cannot usually furnish a sufficient notice to property-owners with .regard to special taxes levied upon their property; for special taxes are levied at very irregular periods of .time, for various purposes, and in vai’ious modes. Hence it is generally necessary to give.to property-owners some specific notice with regard to special taxes. It is not necessary, however, in any case, that the notice should be personally served upon the property-owner, or that the proceeding should be a judicial proceeding; but any notice that will enable the property-owner to- procure a hearing before some officer, board, or tribunal, and to contest the validity and fairness of the taxes assessed against him before the same shall become a fixed and established charge upon his property, will be sufficient. Nor is it necessary in any case, that the notice should be given before the taxes are levied. All that is necessary, is that the notice shall be given before the taxes shall have become such a fixed and permanent charge that the property-owner can have no adequate remedy to contest their validity or fairness. In support of the foregoing propositions, we would cite the following authorities: Cleveland v. Tripp, 13 R. I. 50; Allen v. Charlestown, 111 Mass. 123 ; City of St. Louis v. Oeters, 36 Mo. 456 ; In re De Peyster, 80 N. Y. 565 ; Dunning v. Township Drain Comm’rs, 44 Mich. 518 ; Davidson v. New Orleans, 96 U. S. 97 ; McMillen v. Anderson, 95 id. 37; Finnell v. Kates, 19 Ohio St. 405 ; McMicken v. City of Cincinnati, 4 id. 394 ; Nichols v. Bridgeport, 23 Conn. 190 .

The taxes may be levied provisionally before the notice is given, and be made a permanent charge afterward. But, as before stated, the taxes cannot become a fixed and permanent *171 Charge until after sufficient notice has been given, and the property-owner had ample time and opportunity to contest their legality and fairness. In the present case, the statutes do not require that any notice shall be given; hence the defendants in error, plaintiffs below, claim that the statute purporting to authorize the construction of sewers and drains is unconstitutional and void, and therefore that no special taxes for the construction of sewers or drains can be levied; while the plaintiffs in error, defendants below, claim that the statute is valid, and that no notice of any kind is necessary. We do not agree with either of the parties. We think that the statute is valid, and still that a notice is required. Of course, if no other or paramount law required that notice should be given, then we would think that the statute would be sufficient within itself, and that no notice of any kind would be required; but we think there is another and paramount law, requiring a notice. This other and paramount law is embodied in the fourteenth amendment to the constitution of the United States, which provides as follows: “ Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” Such a law is probably also embodied within some of the provisions of our own constitution, though not so clearly as in the said fourteenth amendment.

As before stated, we think that the statute is valid, but nevertheless that notice of some kind must be given; but as the statute says nothing about a notice, the city evidently has a broad and almost unlimited discretion with reference to the kind of notice that may be given, and the manner in which it may be given. When the legislature provided that a city of the first class should have the power to provide for a system ■of sewerage and drainage, it incidentally and impliedly gave power to the city to use all the means for providing for such system of sewerage and drainage as might be required or might be necessary under any law or laws of the state or the United States, including both the state and the federal constitutions. The question then arises: Was the notice which was *172 in fact given in the present case sufficient? Now we cannot say that it was wholly and entirely insufficient. After the sewers were constructed and their cost determined, and on September 4,1883, the mayor and council passed an ordinance provisionally levying special taxes upon the owners of property within the several sewer districts where such sewers had been constructed. This ordinance was regularly and duly published in the official newspaper of the city on September 8,1883. On Saturday, September 22,1883, and on Monday, September 24, 1883, a notice was published in the official newspaper, giving notice to all property-owners within said sewer districts to appear at a special meeting of the city council to be held on Monday, September 24,1883, at 8 o’clock p. M., to hear all complaints that might be made with respect “to the valuation assessed by the appraisers of any lots or pieces of ground contained” in.said sewer districts. On October 6,1883, another ordinance was passed, finally levying the special taxes upon the property of the lot-owners in said sewer districts, and on October 16,1883, this ordinance was duly published in the official newspaper; and under the laws of Kansas these taxes could not become a fixed and established charge or lien upon the property taxed prior to November 1, 1883, when the tax books are required by law to be delivered to the county treasurer to enable him to collect the taxes. (§85 of the tax law of 1876; Comp. Laws of 1879, ch. 107, §85.)

Now the property-owners had some notice with regard to the taxes assessed against them.- (1) From the city ordinance published September 8,1883; (2) from the direct notice given to them and published September 22 and 24, 1883; and (3) from the city ordinance published October 16,1883; and they had ample time after such notice and before the taxes became a fixed lien or charge upon their property, November 1,1883, to apply to the city council to make corrections or changes in their taxes, or to commence an action in the district court to-enjoin all further proceedings, or for some other sufficient and adequate relief. We cannot say that the notice in this case was wholly and entirely insufficient, and yet it was defective *173 in several particulars. Neither the ordinances nor the notice published in the official newspaper contained any mention of the particular property taxed, or of the owners thereof, and the notice published in the official newspaper was for too short a period of time prior to the special meeting of the city council to hear complaints; and it was further defective in not giving to the lot-owners the privilege of making all the objections which they might have desired to make with reference to the validity or fairness of the special taxes. It gave to them the privilege only of making complaint concerning the valuation of the lots as assessed by the appraisers, and nothing more. None of the objections which the defendants in error, plaintiffs below, now make to the validity and fairness of said taxes, had they any right to make within the terms of said notice. Taking the ordinances and the notices together, however, the combined notice which they gave was probably sufficient to 'render the tax proceedings valid, except for substantial reasons; but for substantia] reasons the taxes might still be void, or voidable — probably only voidable. We shall hereafter consider the other reasons which the defendants in error, plaintiffs below, now urge as grounds for holding that the taxes are void, or voidable.

The defendants in error, plaintiffs below, also claim that the statute authorizing the construction of sewers and drains is unconstitutional, for the further reason that it does not provide for levying taxes with reference to the special benefits resulting from the improvements to the property taxed or to the owners thereof; and they also claim that the taxes were not in fact levied with reference to resulting benefits. The taxes were in fact levied in proportion to the value of the lots taxed, without the improvements thereon. Now as the statute does not prescribe any mode for the apportionment of the taxes, we would think the city would have a right to adopt any mode that would be fair and legal; and we would also think that the mode adopted by the city was fair and legal. Of course it might in particular instances work injustice or hardship, and not be legal or valid; and in all probability there are *174 such instances in the present case; but, looking at it as a mere rule of apportionment, we think it is valid. There are various modes of apportionment, among which are the following: (1) In accordance with the special benefits directly ascertained by assessors or appraisers; (2) in accordance with the value of the lots, without the improvements on them; (3) in accordance with the value of the lots, with the improvements on them; (4) in proportion to the frontage of the lots; (5) in proportion to the superficial area of the lots. The first .would undoubtedly be valid, though it might be difficult to make it practicable. The second we think is also valid as a general rule of apportionment. (Downer v. Boston, 61 Mass. 277 ; Wright v. Boston, 63 id. 233.) With reference to the other modes, we do not now wish to express any opinion.

The defendants in error, plaintiffs below, also claimed that there was no detailed estimate made by the city engineer, and that the estimates that were in fact made, were not under oath. We think the estimates are subject to some criticism in both of these respects. The aggregate costs for some of the excavations, and for some of the masonry work, do not seem to have been stated in the estimates, and no sufficient data are given- whereby such costs may be ascertained or known; nor does it appear that the estimates were under oath; that is, it does not appear that the city engineer took any special oath with reference to these estimates, which we think is necessary under said § 22; and this we think is not a mere technicality, but, as we shall hereafter see, is a matter of substance.

The defendants in error, plaintiffs below, also claim that power was wrongfully delegated by the mayor and council to the city engineer. Now this does not fully appear, and probably it was not the case.

The defendants in error, plaintiffs below, also claim that the form of the oath taken by the appraisers was not the form required by statute, and was insufficient. Now the statute does not prescribe any form of the oath for the appraisers in this class of improvements, and we see no particular objection to ■ the form of the oath that was taken.

*175 It is farther claimed, by the defendants in error, plaintiffs below, that the taxes levied were in excess of the estimates made by the city engineer, and it is also claimed that the estimates themselves as thus made were fifteen per cent, in excess of the real estimates of the cost of the work — and all this appears to be true from the record. ' The excess of the taxes over and above the estimates made by the city engineer appears to be $5,204.79, and these estimates are in fact fifteen per cent., or something over $6,000, above the real estimates of the cost of the improvements in cash, making the taxes appear to be over $11,000 in excess of the real estimates of the cost of the improvements in cash. The real facts are probably not quite so bad, but still the taxes are very largely in excess of the estimates of the cost of the improvements in cash, at least fifteen per cent., and probably much more. This is all in violation of § 22 of the first-class-city act. That section requires that the estimates shall be in detail and under oath, and that the-cost of the imprqyements shall not exceed the estimates, and that the city shall not be liable for any greater amount than such cost. All of these provisions were partially at least-ignored. Everything connected with this case was done after § 22 was enacted in 1881, and one of the estimates was made, and the work was probably all done, and the taxes were all levied, after said section was amended in 1883; and yet it would seem that the city engineer and the mayor and council ignored the provisions of that section to a very great extent. The legislature evidently intended that the section should be strictly complied with; hence it required that the city engineer should make “a detailed estimate” of the cost of the work, and should make the same “ under oath,” and that the cost of the work should not exceed this estimate. It was evidently the intention of the legislature that the work should not cost the city or the lot-owners more than it was actually worth in cash. Hence this “detailed estimate;” hence this special “oath” of the city engineer; and hence the other rigid and explicit provisions contained in said § 22 with reference to the-cost of the work. All this was ignored by the city authori *176 ties. We think that the city authorities, by ignoring the provisions of said § 22, have rendered the special taxes which they levied on the lot-owners’ property at least voidable, if not void. The case of Gilmore v. Norton, 10 Kas. 491, 508 , was decided under a different statute, and can have no application to this case. Besides, the taxes and the cost of the work in that case were for much less than the estimated cost ■of the work.

We think the defendants in error, plaintiffs below, are entitled to their injunction; and the judgment of the court below will therefore be affirmed.

All the Justices concurring.