City of Hartford v. Poindexter , 84 Conn. 121 ( 1911 )

The defendants own land on Albany Avenue in the city of Hartford. Their several lots formerly constituted one tract which was owned by James G. Batterson, through whom directly or by mesne conveyances they all derive title. In 1871, when the land was owned by Batterson, the plaintiff caused a certificate of lien, of which the following is a copy, to be filed with the Hartford town clerk: "This may certify that an assessment for Albany Avenue Street and Building Lines of Five Hundred Twenty-five Dollars for a public work or improvement has been made on James G. Batterson on account of a certain piece of land situated in the City of Hartford and bounded North on Charles Blair, East on Vine Street, South on Albany Avenue West by Seth Kenyon, and that the City of Hartford claim a lien upon said land for said amount until the same is paid with all expenses. Hartford, June 30th, 1871. W. M. Charter, Street Commissioner." The land described was the entire tract, and covered the several lots now owned by the defendants in severalty. This action is brought to foreclose that lien.

The complaint alleges that the court of common council of the city of Hartford made the assessment therein referred to under the authority of the charter and ordinances of the city, that the street commissioner of the city lodged the certificate of lien in accordance with the charter of the city, and that in making the assessment and filing and recording the lien all the requirements of the charter and ordinances of the city were complied with. These allegations are denied in the answer.

The lien is a security for the payment of the assessment. If there is not a valid assessment, there is no lien. Gregory v. Bridgeport, 52 Conn. 40, 44. The defendants' claim upon the trial was that the assessment was invalid and the lien void, because no notice was given, as required by the ordinances, of the pendency of the proposed votes establishing the improvement on account of which the assessment is claimed to have been made. The court found that the assessment was made and the certificate of lien lodged and recorded under and by authority of the plaintiff's charter and ordinances, and that in such proceedings all the requirements of the charter and ordinances were duly complied with. The plaintiff claims that the question whether the charter and ordinances were complied with is a question of fact, and that the defendants are concluded by this finding. But finding a fact without evidence is an error of law. Morris v. Winchester RepeatingArms Co., 73 Conn. 680, 692, 49 A. 180. The judge, at the request of the defendants, amended his finding by a statement that the plaintiff offered no evidence to show that it had caused any notice of either the proceedings in 1871, or those in 1867, to be published in the newspapers of Hartford as required by the ordinances, other than its Exhibits B, C, and D. The defendants produced no evidence except as to the date of the approval of the vote of 1871. If, then, the exhibits referred to furnish no evidence that such notice was given, there was no evidence of that fact, and, if that was a fact essential to be proved by the plaintiff, it failed in its proof, and the judgment was wrong.

The ordinances provided that a vote laying out a street, or altering street lines, or establishing building lines, should not be passed by either board of the court of common council until it had caused the proposed vote, duly attested by the clerk of each board, to be published, together with a notice, appended to such vote as published, to all persons interested to file a written statement of their objections, if they had any, with the city clerk. The purpose of this is manifest. It gave persons interested an opportunity to object to the passage of the vote and the establishment of the proposed improvement. Such objections might be sufficient to defeat the passage of the vote. It was an essential condition precedent to the passage of the vote, and thus to the establishing of the improvement. It was by this notice that it acquired jurisdiction over the parties interested. It was essential, therefore, for the plaintiff to prove that such notice was given; otherwise it failed to establish the validity of the assessment upon which it relied.

The plaintiff insists that by the introduction of the final proceeding of the court of common council establishing the building line and approving the assessment, with the recitals of Exhibit D, a prima facie case was made out, and that there was a presumption that the necessary requirements had been complied with, no evidence to the contrary having been introduced by the defendants.

Municipal authorities in laying out and altering streets, and establishing building lines, act under special and limited authority. They are inferior tribunals. There is no presumption in favor of their jurisdiction as there is in the case of courts of general jurisdiction. Sears v. Terry, 26 Conn. 273, 280. The judgments of such courts, taken alone, are entirely disregarded, and the proceedings must show their jurisdiction.Kempe's Lessee v. Kennedy, 5 Cranch (U.S.) 173, 185. If the record shows jurisdiction it is prima facie evidence, but it may be attacked and contradicted in a collateral matter. Sears v. Terry, 26 Conn. 273,282; Culver's Appeal, 48 id. 165, 173. "Whoever relies on a judgment of a court of limited and special jurisdiction, must aver and prove the facts necessary to give the court jurisdiction." Sears v. Terry, 26 Conn. 273, 282. Unless, therefore, the record of the proceedings of the plaintiff's court of common council showed that it had jurisdiction of the parties, its approval in 1871 of the building line and the assessment made therefor afforded no presumption that proper notice had been given, or that it had jurisdiction of the parties which alone would make the proceedings regular and valid.

In considering upon a demurrer (in Waterbury v.Schmitz, 58 Conn. 522, 524, 20 A. 606) the sufficiency of a complaint similar to that now before us, referring to what it might be incumbent on the plaintiff to prove, we said: "Perhaps it will be sufficient for the plaintiff to prove the assessment by the record, relying upon the presumption that the requisite preceding steps were regularly taken, and then leave it to the defendant to show any defect or omission in those proceedings. On the other hand the better view may be that it is incumbent on the plaintiff to prove, what he has alleged generally, that all the proceedings were according to the charter." We think that the latter is the better view, and the only one which can properly be adopted. The power of making assessments, like other taxing powers, is an arbitrary one. The liability for assessment is created by the authority exercising that power for its own benefit. There is a reason why a man's note or bond or other obligation should be prima facie proof of his liability upon it. But the party who creates an obligation in his own favor should be required to show his authority to create it before he is allowed to recover upon it. The plaintiff's counsel think that support is found for the claim that the assessment is prima facie proof of its own validity, in the fact that the city charter and ordinances provide that an assessment lien may be foreclosed in the same manner as a mortgage incumbrance, the rule in the case of a mortgage foreclosure being that the introduction of the note and mortgage establish a prima facie case which the defendant must overcome by evidence. The cases are not analogous; for in the case of the mortgage the defendant or his privies created the obligation. But the provision for the foreclosure of assessment liens in the same manner as mortgages, refers to the general nature of the suit.Hartford v. Mechanics Savings Bank, 79 Conn. 38,41, 63 A. 658. It has no reference to the rules of evidence or the burden of proof.

The case of Hartford v. Champion, 58 Conn. 268,20 A. 471, cited by the plaintiff as determining that an assessment list is evidence that the tax was properly laid, does not support the plaintiff's claim. The circumstances under which the assessment list was introduced in that case do not appear. For aught that appears in the case proper foundation had been laid for its introduction by showing who were the assessors, and that no list had been handed in by the defendant. In such case the assessors would have authority to make the assessment and the fact of their jurisdiction would be established. The objection to the evidence was upon other grounds, and the decision merely answers those objections.

The plaintiff, however, claims that, if the record of the assessment does not of itself furnish prima facie proof that the required notice was given, the entire record of the proceedings in evidence shows that the notice was in fact given.

The record of the proceedings in 1871, Exhibit D, begins with what purports to be a report of the highway committee in the matter of laying out a street and building lines on both sides of Albany Avenue. The preamble of the report purports to give the building line. The report then states that the building line is described in a resolution establishing the same, and recites the resolution. The resolution is identical with one passed four years before by the court of common council establishing and laying out Albany Avenue. It contains no reference to building lines. This is the authority given by the committee for proceeding to lay out and assess for a building line. It furnished no authority for establishing or making an assessment for a building line. If this resolution was published as the ordinance required, it gave the property owners no notice that building lines were to be established. It is suggested that by reason of the change in the ordinance between 1867 and 1871, requiring that the resolution to establish a new street should designate the building lines, the resolution was sufficient to give parties interested notice that building lines would be established. This is to argue that because the ordinance requires that the resolution shall designate the building lines it is unnecessary to include such designation in the resolution. It is unnecessary to discuss this suggestion, for, if we are to treat the proceeding in 1871 as an independent proceeding disconnected from that of 1867, there is nothing to show that notice of the pendency of the resolution was ever published as required.

But it is said that the proceedings in 1871 may be treated as a part of the proceedings begun in 1867; that under the ordinance in force in 1867 the establishment of a building line was a separate public work; that the vote of 1867 was valid, and gave the court of common council jurisdiction of the improvement then voted and of the parties affected by it, which jurisdiction continued, and that by the ordinance of 1869 the establishment of building lines became a part of the whole improvement. It is denied by the defendants that the vote of 1867 was valid. But, if it be conceded that it was, how did that vote establishing and laying out Albany Avenue give authority to establish a separate public work not mentioned in it, and which could not under the ordinances then and still in force be established except by resolution of the pendency of which public notice had been given? The ordinance of 1869 was prospective. It referred only to resolutions which should be brought before the court of common council after its passage. To improvements already made or voted it had no reference. As to these, the establishment of building lines continued to be a separate public improvement to be proceeded with as the ordinances provided. If, therefore, proper notices of the pendency of the resolution of 1867 laying out Albany Avenue were published, they furnished no notice of the proposed establishment then, or in 1871, of building lines thereon. The plaintiff, therefore, failed to produce any evidence to prove its allegations that the building lines were established and the assessments made in accordance with its charter and ordinances.

An assessment for benefits carriers no interest as such, or by way of penalty, unless the law so provides. Sargent Co. v. Tuttle, 67 Conn. 162, 167, 34 A. 1028;Hartford v. Mechanics Savings Bank, 79 Conn. 38, 40,63 A. 658. By an amendment of the plaintiff's charter in 1899 it is provided that "all assessments made for public improvements . . . shall bear interest from the date when the same become due and payable, at such rate as the court of common council of said city shall . . . prescribe." By an ordinance passed June 10th, 1902, the rate was fixed at four per cent. The court allowed interest at this rate on the amount claimed in the certificate of lien, from the date of the ordinance. This is assigned for error.

When the lien was filed, the assessment drew no interest. None was claimed in the certificate. Two of the defendants acquired title to their property before the amendment of the charter referred to. The assessment was not against the property, but against Batterson. He died in 1901. The present owners are not liable for the assessment. So far as appears, no demand for the payment of it had ever been made upon them. They can be compelled to pay it only through the enforcement of the lien. It is doubtful whether this property, after having passed into new hands after the lien was filed, can be made chargeable under the lien with an after-imposed penalty inflicted in the form of interest upon the person liable upon the assessment because of his neglect to pay it. But we are not required to decide that question. The amendment to the charter is not retrospective. It does not relate to assessments already made at the time of its passage, but to future assessments. This is clear from the terms of the amendment. The assessments are to bear date from the time when they become due, not from the time when they became due, nor from the date of the ordinance fixing the rate. All laws are held to operate prospectively, unless their language unmistakably gives them a retrospective operation. Middletown v. New York,N.H. H.R. Co., 62 Conn. 492, 497, 27 A. 119. No interest should have been allowed.

It becomes unnecessary to consider the defendants' claim that the inclusion in the assessment of 1871 of the item of $5,001 rendered the whole assessment void. There is nothing in the finding which shows, as the defendants claim, that unless this item had been included there would have been no resulting assessment against Batterson. However that may be, the question becomes of no consequence in the decision of the case.

There is error, the judgment is reversed, and the case is remanded with direction to enter judgment for the defendants.

In this opinion the other judges concurred.