Corliss v. Village of Richford , 85 Vt. 85 ( 1911 )

Powers, J.

This is a proceeding for a re-assessment for benefits conferred by the construction of a sewer on Province Street in the defendant village. The only question raised or considered is the constitutionality of the act under which the assessment was made. The petitioner attacks the act on two grounds specified as follows:

1. That the act does not give the petitioner an opportunity to be heard on the question of the public necessity for the construction of the sewer.

2. That the act does not provide a certain, fixed and definite standard for assessing the land owners for the expense of construction.

1. In support of his first proposition, the petitioner relies upon Stearns v. Barre, 73 Vt. 281, 50 Atl. 1086, 58 L. R. A. 240, 87 Am. St. Rep. 721. But that was a case involving the law of eminent domain, while this is one involving the law of taxation. The distinction between such cases was recently pointed out in Durkee v. Barre, 81 Vt. 530, 71 Atl. 819, wherein it was held, upon a review of the authorities and in harmony with the views expressed in Woodhouse v. Burlington, 47 Vt. 300, that due process of law does not require that one liable to assessment for benefits should have an opportunity to be heard on the question whether the public good requires the improvement involved, since no property is thereby taken, but only a foundation laid for the exercise of a particular right of taxation. That case was followed and approved in Lazelle v. Barre, 81 Vt. 545,. 71 Atl. 824, wherein the improvements were wholly unauthorized when made, but a subsequent amendment to the defendant’s charter provided for assessments upon an ex post facto determination of the public character and necessity thereof.

2. The petitioner’s second objection must be sustained, for the law of the subject is with him. All agree that the only legal basis for assessments of this kind is the special benefits conferred by the improvements involved; and that special benefits are such as a landowner received therefrom in excess of the benefits enjoyed by the general public. That the act authorizing the assessment must itself,, either in- express terms, or by fair implication, fix the legal standard to which the assessment must be made to conform was established by Barnes v. Dyer, 56 Vt. 469. It was therein held that an act providing for an assessment for such part of the expense incurred as the authorities should deem “just and equitable” was insufficient and unconstitutional. The act under consideration provides for an assessment for the landowner’s “just share” of the expense. These words, like those in Barnes v. Dyer, fail to establish a legal standard by which to determine the validity of an assessment. And this is so because they do not import, with reasonable certainty, a limitation to the special benefits conferred. The act falls short of constitutional requirements in this regard, and affords no basis for an assessment.

Pro forma judgment reversed, assessment vacated, and judgment for the petitioner to recover his costs.