Filiau v. City of Hartford

Gager, J. This action is brought by the owners of property fronting on a portion of Windsor Avenue in Hartford, to restrain the city of Hartford from assessing the benefits for improved paving adopted and already being constructed under the Act of 1917. This Act is found in the Special Laws of 1917, p. 869, and reads as follows:— *514 “Section two of an act amending the charter of the city of Hartford concerning street paving, approved May 19, 1915, is amended to read as follows: The city of Hartford may cause to be paved with granite, asphalt or other substantial pavement other than concrete or the macadam in general use, as the board of street commissioners shall select, not exceeding four miles of highway in each year, without petition therefor, in addition to the amount petitioned for by property owners. The board of street commissioners shall select the streets to be paved, and after notice to the property owners interested, by publication in the daily newspapers of the city, and, so far as practicable, by a written or printed notice addressed to the property owners interested, at their last known place of abode, and deposited in the postoffi.ee, postage paid, at least ten days before taking the action herein contemplated, may pass votes to be submitted to and approved by the city council ordering such pavement, and assessing the aforesaid share of the expense upon the abutting owners as hereinbefore provided.” That part of Section 1 of the Act of 1915 (Special Laws, 1915, page 343) relating to assessments and referred to in the above Act of 1917, reads as follows:— “Said city council shall have power to assess the whole cost of such paving or repaving, including that portion contiguous to lateral and intersecting streets, and excluding that portion of the street which, by law or contract, a street railway is under obligation to pave, one-third of such cost upon said city of Hartford, which shall be paid out of the treasury of said city upon the order of the city council, and two-thirds of such cost upon the owners of the property abutting on the line of such improvement, in such proportion as said property may be especially benefited thereby, and may enforce the collection of such assessments in the *515 manner provided by the charter or ordinances of said city for the collection of assessments. On the completion of the work and assessment for the cost of the same, such assessment shall be final and conclusive on all parties in interest; and such assessment shall be a lien upon the land on account of which it was assessed, in the same manner and to the same extent as is provided in the charter of said city in the case of assessment for benefits arising from other public works and improvements.” The city charter provides for appeals from the assessment of benefits. 7 Special Laws (1873) p. 527, § 3. The highway improvement referred to was undertaken under the powers granted in the laws above quoted, more particularly the Act of 1917. The material grounds upon which the action is based, as summarized in the plaintiff’s brief, are: (1) A lack of authority to levy the assessments, or the claim that the assessment is void; (2) the liens placed against the lands of the plaintiffs constitute a very material cloud upon the title; (3) no adequate remedy exists at law; (4) the prevention of a multiplicity of suits involving the identical facts and parties. The various allegations on which the action is founded are demurred to. Taken collectively, as is done by counsel on both sides in their briefs, the various grounds of demurrer together raise the question of the jurisdiction of the court upon the allegations of the complaint to grant the relief sought. The trial court, while formally sustaining the demurrer upon all points, evidently ruled upon the broad proposition that upon the facts alleged equity would not interfere, and bases its ruling upon Dodd v. Hartford, 25 Conn. 2. Should Dodd v. Hartford clearly apply, it will be unnecessary to discuss separately the subordinate points raised by the demurrer. *516 The case of Dodd v. Hartford was a petition by several persons assessed for benefits, to restrain the defendant from enforcing the collection of certain sewer assessments on the ground that they were illegal and void, and the joinder of plaintiffs was based on the power of equity to prevent a multiplicity of suits. While not explicitly stated in the opinion, it appears from- defendant’s brief that the question of constitutionality was deemed to be in the case, and we think the Dodd case does not differ from .the present in any essential particular. This disposes of the first and fourth of the plaintiff’s claims as stated above. The second claim, that the hen would be a cloud upon title, would be determined according to the legality or illegality of the assessment. The claim of no adequate remedy at law has no greater force than those relating to multiplicity of suits and illegality. It very distinctly appears that the gravaman of the plaintiffs’ opposition is the present “high cost of living ” apphed to highway improvements. Whatever the objections to the assessments or their collection, if there are any of legal merit, they can be fully asserted in appropriate legal action under the provisions of the charter or when the city undertakes to collect. In the Dodd case the court said: “If the proceedings of the common council are irregular and void, as the petitioners claim they are, an action at law will he to recover all the damages which shall be sustained by the levy, and the question of the legality of the assessment will then be tried in its appropriate forum, a court of law. The claim most pressed by the petitioners, is that the court ought to entertain jurisdiction in order to prevent a multiplicity of suits. But no one of these petitioners has any interest in the suit which another of them may be called upon to institute. They cannot individually complain that others are *517 compelled to sue, for they have no share in the expense or vexation of each others suits. . . . There are also reasons of policy, founded on the necessity of speedy collection of taxes, which ought to prevent a court of chancery from suspending these proceedings, except upon the clearest grounds.” Dodd v. Hartford, 25 Conn. 238, 239. The plaintiffs have argued that the Dodd case should, in view of the later authorities, be distinguished; but the authority of the Dodd case is reaffirmed by the later authorities and its soundness has hitherto been unquestioned. In Swift v. Larrabee, 31 Conn. 225, 229, on the question as to multiplicity of suits, the court says: “The true rule on that subject is clearly stated ... in Dodd v. City of Hartford.” Rowland v. First School District of Weston, 42 Conn. 30, 31, was a petition, brought by a number of taxpayers, for an injunction against the collection of school district taxes as illegal, and is particularly pertinent in view of the claim here made as to the effect of the lien as a cloud on title to real estate. The court there said: “The case of Dodd v. City of Hartford is on all fours with the case at bar. The only ground of difference suggested is, that in that case the plaintiff sought to protect his personal property from being levied upon, and in this case the injunction is asked to protect real estate. We perceive no substantial reason why an injunction should be granted to protect real estate from a levy, that would not apply, with equal force, to personal estate. If there be any difference, the necessity for protecting personal property would seem to be the greater. A party might be.deprived of personal chattels, even under an illegal taking, and so be compelled to resort to an action for damages as the only redress. Not so in regard to real estate. There could be no amotion of that, by any levy, valid or void. That would remain in statu quo *518 ante censum. If the preliminary proceedings were illegal and void, as in this case they are claimed to be, neither the land nor the owner would be in danger of such injury as that the extraordinary powers of a court of equity need be invoked for protection. We can give no countenance to the argument of the plaintiff’s counsel impugning the authority of Dodd v. City of Hartford. We think that case was correctly decided, and we regard the principles enunciated in it to be sound and salutary.” In Waterbury Savings Bank v. Lawler, 46 Conn. 243, 247, the court said: “The case of Dodd v. City of Hartford, 25 Conn. 232, was the first in the line of decisions in this State that resulted in establishing the above doctrine. It was there held that a bill in chancery would not lie to restrain the city from enforcing the collection of illegal assessments by the levy of warrants on personal estate. Seymour, J., in giving the opinion, laid some stress on the fact that there was no averment in the bill that the real estate of any of the parties had been or could be levied on, and that the warrant only authorized the taking of personal estate. This may have led the profession "generally to assume that the court would recognize a distinction between personal and real estate in the application of the remedy by injunction. But the late case of Rowland v. First School District of Weston, 42 Conn. 30, obliterates this supposed distinction.” We have cited from the opinion in the Rowland case above. In Taylor v. Secor and other cases, cited as the “Railroad Tax Cases,” 92 U. S. 575, 23 L. Ed. 663, 673, the Dodd case is cited with approval to this proposition (p. 613): “It has been repeatedly decided that neither the mere illegality of the tax complained of, nor its injustice nor irregularity, of themselves, give the right to an injunction in a court of equity.” But the plaintiffs specially urge the prevention or *519 removal of cloud upon title as a specific equitable ground of relief, based upon the claimed unconstitutionality of the Act under which the improvement is made. We may admit that in many jurisdictions injunction would lie in such a case. 4 Pomeroy’s Equity (4th Ed.) §§ 1810 and 1866. In the note to § 1810 of Pomeroy it is stated, however, that such is not the rule in Connecticut, citing Rowland v. First School District, supra, and Waterbary Savings Bank v. Lawler, supra. In the latter case, the question of cloud upon title was discussed at some length, and in the course of the decision the court said: “Although, as suggested, the facts of this case may bring it within the ordinary definition of a threatened cloud upon the plaintiff’s title, by creating a prima facie right which must be overcome by evidence aliunde, yet there is one element wanting, which in this class of cases always calls most imperatively for equitable interference. I refer to the fact that the evidence to rebut the prima facie title is not in this case liable to be lost by the unavoidable death of witnesses, or any other cause likely to happen; for the rebutting facts relied upon, to wit, the mortgage, the foreclosure, and the date when the plaintiff’s title became absolute, are all matters of record and easily obtained. So that ultimately the petitioner will be sure to vindicate his title in a court of law and successfully defend his possession. The injury to be apprehended therefore is by no means irreparable, and the court might well act upon its discretion and deny the injunction.” That observation applies with special force in the present case, for whether or not a hen which would cause a cloud upon the title would be unconstitutional, depends simply upon the construction of the two Acts amending the city charter. In the same way as in Pomeroy, Connecticut is referred to in note 16 (p. 448), § 486 of High on In *520 junctions, Vol. 1, 4th Ed. See also Cooley on Taxation (3d Ed.) Vol. 2, page 1452. Whatever may be the rule elsewhere, we see no sufficient ground for changing the well-settled rule in force in our State for more than sixty years. It appears that the actual prosecution of the work was going on at the time this action was brought, and it must be presumed that before the work was begun all parties had the notice prescribed by the statute of 1917. What would have been the result had a suit for an injunction against beginning and prosecuting the work been seasonably brought, it is not necessary to discuss. The present suit is not an attempt to interfere with the work, but only to avoid paying benefits,' and the plaintiffs should be left to their legal defense, if - any, when the attempt is made to collect the assessment. The trial court was right in sustaining the demurrer on the grounds stated in Dodd v. Hartford, and affirmed in later cases, and therefore we leave the other features of the demurrer without comment. There is no error. In this opinion the other judges concurred.