Sauter v. Mahan , 95 Conn. 311 ( 1920 )

The plaintiff's right as a taxpayer to maintain this action is not disputed. The action is brought against the city of New London, and the Savings Bank of New London claiming to have a mortgage or mortgages upon the premises in question, as well as against the defendant Mahan, the owner of the premises. The city of New London did not appear, and judgment has been entered against it by default. The Savings Bank of New London has not appealed.

We take up first the claim that the trial court erred in ruling that the votes of the board of water and sewer commissioners, passed in 1915, purporting to reconsider the assessments made in 1907, were ultra vires and void. The assessment of special benefits is an exercise of the power of taxation. New London v. Miller, 60 Conn. 112,116. The State has delegated to the city of New London by its charter the power to make such assessments of benefits, but it has not granted it the right to reconsider or rescind them after they have been made; and in the absence of express authority to do this, the city has no power subsequently to reconsider or rescind a completed assessment lawfully made. This is a necessary consequence of the rule, especially applicable in respect of local taxation, that a municipality has no powers except those expressly granted in its charter and such others as "are reasonably proper to give effect to powers expressly granted." Bridgeport v. Housatonic R. Co., 15 Conn. 475, 502. In Woodbridge v. Cambridge,114 Mass. 483, 486, it is said: "It was doubtless within the authority of the mayor and aldermen, for reasons satisfactory to them, to abate the amount assessed upon any landowner. And if the assessment had not been actually laid, or had been illegal, they might have treated it as null and void, either by vote of rescission or by new proceedings in due form. But after a lawful order of assessment had been passed and had taken effect, a warrant for its execution committed to the city treasurer, and notices given to the owners of the estates assessed (by reference to the date of which the right to apply for a jury was limited), it was not within the power of the mayor and aldermen at a subsequent meeting to reconsider or rescind the entire order laying the assessment."

So in this case, it may be that the board of water and sewer commissioners had power, so long as the assessment was incomplete, to correct any error of amount or procedure; but after it had passed out of their hands, and especially after the time limited for appeal to the Superior Court had elapsed, they had no authority to reconsider or rescind the assessment.

It may be added, although the point is not specifically covered by any assignment of error, that the certificates purporting to release and discharge the liens securing these assessments were signed by the secretary of the board instead of by the mayor or by the city clerk, as required by the charter. This of itself would be enough to invalidate the releases and to entitle the plaintiff to have them cancelled of record.

The plaintiff as a taxpayer has a right to have the votes reconsidering the assessments declared null and void, and to have the certificates of release of liens cancelled of record, because the city has thereby wrongfully disabled itself from enforcing tax liens which on their face are valid and uncontested. Incidentally, the plaintiff is entitled to an order requiring the defendant Mahan to surrender the original releases. To that extent the judgment is enforcible by process, and when the records are corrected the liens will again appear to be valid, and the only delict complained of will be cured.

The question of the validity of the original assessments was argued at length before us, but we are of opinion that the trial court had no jurisdiction to entertain and determine that issue in this action. As a taxpayer the plaintiff could have no judgment foreclosing these liens, and none is asked for. A condition might exist which would entitle a taxpayer to a judgment requiring the proper officers of a city to proceed with the collection of taxes; but to permit one taxpayer to take part in the collection of taxes by calling on the courts for judgments, either executory or declaratory, against another taxpayer, is not only inexpedient but contrary to the rule that governmental duties must be performed by authorized agencies. The collection of these assessments has been entrusted by the city to designated officials, and to them alone, and the plaintiff may not volunteer to assist them in the performance of their duty.

The injunction restraining the city from executing or recording new releases of these liens is probably unnecessary, but it is not erroneous in law. There is nothing in the complaint inconsistent with the presumption that when the record is clear the city will proceed with the collection of these assessments, unless it is advised and believes that they are not collectible.

There is error in part and the cause is remanded to the Court of Common Pleas with direction to enter a judgment adjudging that the votes of the board of water and sewer commissioners purporting to reconsider