Hall v. Street Commissioners of Boston

an old sewer or a new part of an old system. See Sears v. Commissioners, 173 Mass. 350, 53 N. E. 876; Carson v. Same, 175 Mass. 242, 56 N. E. 1, 48 L. R. A. 277.

We are of opinion, in the next place, that this sewer is within the words first above quoted from the act. It is true that the words, "within two years after any sewer is completed." taken by themselves, would seem to refer to a completion in the future. But we have to consider the whole section and the circumstances. Later on, as we have said, there is a general power to assess upon any estate heretofore or hereafter connected with a sewer, about which we say nothing except that it shows that the legislature had past work in its mind. But what is more important is that the section is enacted to replace the one which was held unconstitutional by this court, and its whole frame shows that it was intended among other things, to enable the city to collect the special assessment which it had failed to get under the earlier act. Indeed, this is the petitioner's argument, although aimed at a different conclusion. Taking this into account, and also that the section which we are construing was passed as an amendment to the act of 1897, we are of opinion that the words embrace at least sewers completed after the act of 1897 went into effect. We are not laying down a general rule of construction for amendments, but simply are construing this particular act as we think that the legislature meant it to be construed. No doubt if the amendment in a new clause not repeated from the amended section had read, "is hereafter completed," the general rule would take "hereafter" as referring to the date of the amendment, not to the date of the act. Ely v. Holton, 15 N. Y. 595, 598; Moore v. Mausert, 49 Ñ. Y. 332, 335; In re Peugnet, 67 N. Y. 441, 445. See Parsons v. Circuit Judge, 37 Mich. 287; Farrell v. State, 54 N. J. Law, 416, 423. 24 Atl. 723.

Finally, we are of opinion that the act of 1899 is constitutional, so far as it applies to this case. The greater part of the petitioner's argument is made is made inapplicable by our decision that this was a new sewer, and is within the opening words of the section. We see no objection to the statute in the fact that the statute does not apply to any sewer built before a certain date, it does not matter precisely what. Such a limit of liability by time is no more unreasonable or contrary to any principle of constitutional right than is a statute of limitations. Again, it is not unconstitutional to levy special assessments for sewers already built. One must not let one's mind be led astray by the false analogy of executed consideration in contracts. Public works must be paid for although they have been constructed before any tax has been levied on their account. If the tax otherwise is levied properly as a special assessment for betterments, then, in view of the fact that the benefit and payment both are compulsory, not matter of contract, a betterment already executed when

Sanborn v. City of Mason City

the law authorizing the tax was passed will sustain the tax, as well as a work built with express notice that it is under the law. Butler v. City of Toledo, 5 Ohio St. 225; Howell v. City of Buffalo, 37 N. Y. 267, 273; Righten v. Mayor, etc., 45 N. I. Law, 104; Brevoort v. City of Detroit, 24 Mich. 322, 326; 2 Dill. Mun. Corp. (4th Ed.) § 814.

It is suggested that this statute is an attempt to exercise judicial functions, and to revive the decision in Sears v. Street Com'rs. We perceive no such attempt, except that the legislature is trying now to give a valid authority where formerly it gave a void one. State v. Mayor, etc., of City of Newark, 34 N. J. Law, 236, 240; Howell v. City of Buffalo, 37 N. Y. 267.

It is urged that the method of assessment is bad, as not being limited to the benefit received. It is unfortunate that the petitioner's argument is directed against the latter clause authorizing the board to assess a reasonable part of the cost upon any estate heretofore or hereafter connected with a public sewer. But we assume that he would wish to urge the same objection to the clause at the beginning of the section which we have decided to be applicable. That clause confines the assessment in terms to the estates especially benefited, and limits it to a proportional part of the cost, not exceeding four dollars per linear foot, but does not limit it in clear terms to the special benefit received. We are of opinion, however, that the word "proportional," as here used, must be taken to mean proportional to the special benefit received. See Carson v. Commissioners, 175 Mass. 242, 56 N. E. 1. 48 L. R. A. 277. We believe that we have dealt with all the objections to the assessment insisted on in the petitioner's argument, so far as they are applicable to our view of the facts and our construction of the statute. Petition dismissed.

SANBORN et al. v. CITY OF MASON CITY et al.

(Supreme Court of Iowa, May 23, 1907.)

[86 N. W. Rep. 286.]

Sewer-Assessment--Manner of Making-Time.-An ordinance for the construction of a sewer in a certain district provided that the sewer committee should report the entire cost thereof on its completion and acceptance, and that each lot of land in the district should be assessed its proportion of the entire cost in constructing the same. Provision was then made as to the manner of making assessment "when the sewer authorized shall have been completed." Acts 25th Gen. Assem. c. 7, § 10, provides that, when such improvement shall have been completed, it shall be the duty of the council to ascertain the cost thereof. Section 11 declares that, when the whole or any part of the cost of constructing such sewer shall be required by ordinance to be paid by the proceeds of a sewer tax, said city shall have the power to levy the entire cost of such sewer at once upon all the taxable real property within such district. Held, that a special assessment for the construction of a sewer could not be levied and collected in advance of completion thereof.

Sanborn v. City of Mason City

Cost of Improvement Tax Levy--Time of Levy-Construction of Statute. Where, before the completion of a sewer, the city passed an ordinance directing that the probable cost of the entire improvement be estimated, and a tax levied for the payment thereof, and suit was brought to enjoin the enforcement of the assessment on the ground that such a tax was prohibited by Acts 25th Gen. Assem. c. 7, § 10, providing that, when such improvement shall have been completed, it shall be the duty of the city council to ascertain the cost thereof, and assess the same against the property benefited, a contention that the tax was valid on the ground that the time for the levy of the assessment as prescribed by such section was directory merely could not be sustained, since the vice in the ordinance was not in the time of the levy, but in the levy of a tax for the "estimated and unascertained" cost of the improvement, which was prohibited.

Appeal from district court, Cerro Gordo county; John C. Sherwin, Judge.

Mason City had been divided into sewer districts, through one of which (Willow Creek). by ordinance and resolution, the city council ordered the main artery of the sewer system to be constructed, in length 9,605 feet, of which 1,250 was to be open, and the remainder closed. The contract was let to Ford & De La Hunt, September 28, 1896, at the lump sum of $21,370, and on October 26th following $960 was added for covering the 1,250 feet which was to be open. The work was to be completed June 1, 1897, but, after about 2,600 feet of the sewer had been put in, the council, on December 8, 1896, extended the time to November 7, 1897, and paid the contractors $3,000. Work under the contract not having been resumed, on July 15, 1897, the council, by motion or resolution, estimated the cost of completing the sewer over and above the contract price at $6,670 to cover engineering and contingent expenses, and ordered "that levv of 5.7 per cent. be made on all real property included in the Willow Creek district." Proceedings were then taken resulting in making the levy, and properly certifying the same to the county auditor. The various tracts of land belonging to plaintiffs have been advertised for sale, to enjoin which this action was brought. To the petition alleging the foregoing facts in detail a general demurrer was sustained, and, as plaintiffs elected to stand on the ruling, their petition was dismissed, and they appeal. Reversed.

Cliggitt & Rule, for appellants.

R. Wilber, Blythe, Markley & Smith, and T. G. McDermott, for appellees.

LADD, J. The controlling question raised by the record is whether, under chapter 7 of the Acts of the 25th general assembly and the ordinance of the defendant city, a tax for the construction of the main artery of a sewer system of a particular district may be levied and collected on the real estate of the district in advance of its completion. That the ordinance contemplated a completion before the levy is put beyond controversy by the language employed. Section 6

Sanborn v. City of Mason City

thereof provides for a report of the entire cost by the sewer committee "upon the completion and acceptance of the sewer," and the assessment of "each owner and lot and parcel of land in said Willow Creek sewer district, according to its value, its proportion of the entire cost in constructing said sewer'; that is, the entire cost as found and reported by the committee "upon the completion and acceptance of the sewer" is to be distributed on the real estate of the district according to its assessed value. The following section directs the manner of making the assessment "when the sewer authorized by this act shall have been completed"; that is, by preparing a plat, issuing notices to landowners, hearing obiections, etc. These are the only portions of the ordinance relating to the levy and the time of doing so. Without repealing or modifying this ordinance, it is at least doubtful whether the method prescribed for raising the funds for the sewer, if permitted by statute, might be abandoned for another; but that point is not argued, possibly for the reason that the chapter mentioned provides for no other mode. It has long been the policy in this state not to exact the payment of assessments for local or special improvements, such as street paving, gutters, and the like, as distinguished from those of the entire municipality, before their completion. Such has been the tenor of legislation from the organization of the state. Thereby the cost is definitely ascertained, and no more exacted from the property holder than is essential to meet it. Hence no provision is made for the return of any excess, as, under such a system, if computation is accurate, there can be none. Were money to be collected in advance on mere estimates, it might often happen, on the one hand, that enough would not be raised, and, on the other, an excess might remain unexpended. We think the provisions of chapter 7, Acts 25th Gen. Assem., not a departure from this policy. Under it the paving or curbing of streets and the construction of sewers must be done under contract made with the lowest bidder after public notice. Bonds or certificates to provide for the payment of the improvements are to be issued as the work progresses for not exceeding six-sevenths of its costs, and the proceeds derived from their sale "paid out on requisition of the council, accompanied by certificates of the city engineer or board of public works that the work has been done or material furnished to the amount of the requisition, and that it is required for the payment of the same." See sections 6-9. Section 10: "When any such improvement shall have been completed, it shall be the duty of the council to ascertain the cost of the improvement, and also what portion of such cost so assessable shall be assessed as provided by law or by ordinance of such city upon the property fronting or abutting or adjacent to the improvement." The remainder of this section relates to the assessment of railroad or street-railway property, and need not be set out. It thus appears that not until com

Sanborn v. City of Mason City

pletion is the council required to determine the cost, and nowhere in the chapter is an estimate thereof mentioned. The following section relates to the manner of ascertaining the proportion of the cost to be levied against each parcel of ground, and is in two parts. The first makes provision for assessing lots fronting, abutting, or adjacent to the improvement. The assessments against these are necessarily according to the benefits received, whatever be the rules adopted for determining these. For this purpose a plat is to be made. with the amount assessed against each parcel of ground with other particulars indorsed thereon, public notice given that opportunity for inspection be afforded, and that objections thereto must be filed before the next meeting of the council; and said "council at such meeting, or as soon thereafter as practicable, and after hearing and deciding upon any objection so filed, if any, and after making all necessary corrections in the assessment, as proposed by said plat, shall assess and levy as a special tax upon the property of each owner, liable to special assessments as aforesaid, its just and true proportion according to law and according to said assessments proposed by said plat as corrected and approved of the amount to be specially assessed for any such improvement." Thus considerable time of necessity elapses for the accomplishment of the proportionate distribution of the cost to the several properties beneficially affected. But, when this is to be paid by the property owners of an entire district according to its assessed value, there is no occasion for notice and hearings. The distribution of the burden is then a mere matter of computation. Hence the second part of section II reads: "Provided, that when the whole, or any part of the cost of constructing a sewer, shall be required by ordinance of any city to be paid by the proceeds of a sewer tax, to be levied upon all the property of any sewer district, according to valuation, that said city shall have the power to levy the entire cost of such sewer, required to be paid by such sewer district, at once upon all taxable real property within such district, and determine by ordinance or resolution the whole percentage of tax necessary to pay such cost, and the percentage to be paid in any one year, and when the same shall become delinquent, and such taxes shall be entered, and payable and collectible, as other special taxes in this chapter provided for; and said city shall have the right to issue bonds in anticipation of the payment of such taxes in the same manner, and with the same effect, as herein provided for bonds issued for taxes levied upon specified abutting, or adjacent property." "At once," as here employed, evidently refers to the time when the cost is ascertained by the council under section 10, and what is meant is without the delay incident to the preceding part of section II. The "entire cost" of such sewer, not its estimated or probable cost, may be levied on the property of the district. No provision whatever for ascertaining the cost.