Clapp v. City of Hartford

Carpenter, J. The questions involved are substantially the same in all these cases. The cases were argued together, and the opinion now to be given may be considered as applicable to all alike. These proceedings originated in the proceeding of the common council of the city of Hartford, in locating and constructing a sewer, under the provisions of the city charter. The charter provides for the assessment of — 73 — benefits upon those who are benefitted by the sewer, with a right of appeal to a 'judge of the superior court, who may by, himself, or by a committee by him appointed, re-assess the benefits. Prior to the statute of 1864 the proceedings of a judge in cases of this character could not be reviewed by this court on a motion for a new trial or other proceeding in, error. Trinity College v. City of Hartford, 32 Conn., 452. It was there held that, although the judge by express provision of the charter had all the powers of the Superior Court for the purpose of the proceeding before him, yet he had not, all the attributes of a court, but was to be regarded as a special tribunal for the particular purpose named. But now the statute entitles the parties to have the questions of law decided by the judge reviewed by this court. It is apprehended however that the statute does not change the nature of the tribunal. The judge still remains a special tribunal for this particular purpose. His powers and duties are measured by the provisions of the charter. By a. reference to that it will be seen that he has no original jurisdiction. He can only take cognizance of cases brought before him by proceedings in the nature of an appeal. He is then, for all purposes involved in the present inquiry, an appellate tribunal. The principles of law which govern appellate courts generally, will, so far as they have a bearing upon the matter now before us, be applicable to the tribunal in question. In Owings v. Hull, 9 Peters, 607, the question was made whether the Circuit Court for the district of Maryland was bound to take judicial notice of the laws of the state of Louisiana. The court, on page 625, says, “ The Circuit Courts of the United States are created by Congress, not for the purpose of administering the local law of a single state alone, but to administer the laws of all the states in the Union in cases to which they respectively apply. The judicial power conferred on the general government by the constitution, extends to many cases arising under the laws of the different states. That jurisprudence is then, in no just sense, a foreign jurisprudence, to be proved in the courts of the United States by the ordinary modes of proof by which the — 74 — laws of a foreign country are to be established, but it is to be judicially taken notice of in the same manner as the laws of the United States are taken notice of by these courts.” A court of error will also take notice of the nature and extent of the jurisdiction of the inferior court whose judgment it revises. Chitty v. Dendy, 8 Adol. & El., 319. Courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction. It follows necessarily that all courts, original or appellate, will take judicial notice of the laws by which they are created, and by which their proceedings are regulated, and especially of the laws which they are to administer. In all such cases, when the memory of the judge is at fault, he has reference to such books and documents as may be at hand, and he may deem worthy of confidence. 1 Greenl. Ev., § 6. Apply these principles to this case. It was not necessary to allege or prove before the common council that the charter of the city of. Hartford constituted them a tribunal for the purpose of assessing benefits. The charter was the law of their existence, and they were bound to take judicial notice of it, and of all its provisions relating to their duties. When these cases were brought before a judge of the Superior Court by appeal, he sustained the same relation to the charter that the common council did while the proceedings were pending before them. As a special tribunal, ho was called into existence by the charter, and his powers and duties as such were thereby limited and defined. It was only necessary, therefore, for the parties to allege such facts as were essential to show' that the case was within the provisions of the charter. The charter itself need not be alleged or proved, as the judge was bound to take judicial notice of it. This view of the case will render it unnecessary for us to determine the question raised and elaborately discussed during the argument, whether the charter is a public or private statute, for in either case it was within the judicial knowledge of the court. 2. The second, third and fourth errors assigned, relate to the rejection of evidence by the judge on the trial of the re — 75 — monstrance. The second and third will be considered together. In the first reason of the remonstrance, it is alleged that the whole cost of the sewer was §7,120.80, and that the persons among whom that sum was apportioned were specially beuefitted by the sewer to an amount largely in excess of that sum, and that the acceptance of the report would greatly reduce the entire assessment. In the second reason it is alleged 'that the persons who appealed from the assessment were specially benefitted by the laying out and construction of said sewer to an amount equal to the whole sum assessed upon them, and that the different appellants were .severally benefitted to an amount equal to the sum apportioned to them severally, and that the acceptance of the report would reduce the sum assessed to all the appellants, and the sum apportioned to each. The evidence offered in support of these allegations was rejected.by the judge as irrelevant. The claim that this evidence was admissible is based upon two assumptions: — 1st. That the whole cost of laying out and constructing a sewer should in all cases be paid by the persons specially benefitted thereby. Consequently when the amount apportioned to one man is reduced, that apportioned to others must be increased; so that, when one of several persons benefitted by a sewer appeals, the whole question of assessing aud apportioning benefits upon and among all the persons interested is carried before the appellate court to be proceeded with de novo. 2d. That the amount assessed to each individual should be a sum equal to the full amount of the benefit received. After a careful consideration of the provisions of the city charter we have come to the conclusion that neither of these assumptions is well founded. In respect to the first, perhaps it is reasonable and just that the city should have the power, in the first instance, to apportion the whole cost of the sewer among the persons specially benefitted thereby, and although the whole city is to some extent benefitted by a judicious system of sewerage, yet, as all parts of the city would require — 76 — sewers, perhaps the burden, so far as the public benefit is-concerned, might in that way be fairly and equally distributed. And we think the language of the charter will justify the court of common council, so far as their action is concerned, in requiring the whole expense to be paid by the parties interested. In making the apportionment, however, it may sometimes happen that injustice will be done to one or more individuals. The remedy is by an appeal to a judge of the Superior Court. The obvious import of the charter is, that the appeal carries up, not the whole apportionment, but simply the apportionment to the appellant. The appeal is allowed “ to any person aggrieved,” and notice must be served upon the city clerk. The city, and not the other persons benefitted, is the adverse party. If the legislature had intended that there should be a general re-apportionment upon the appeal, it is fair to presume that provision would have been made for notifying the others interested, as they would, in that event, seem to have a greater interest in the question than the city. Indeed, the city would hardly be interested at all, as it would be immaterial to it who paid the assessment, or in what proportion it was paid. The fact that the charter makes the city the only appellee, is sufficient evidence of an intent that the appeal should not disturb the assessment upon others, and that the appellate court should be limited to re-assessing benefits to the appellant. In this view of the case it is apparent that the charter must have contemplated a reduction of the assessment upon the appellant, and a consequent reduction of the whole sum assessed; otherwise the appeal could be of no benefit to the party aggrieved. I-t follows then," necessarily, that evidence to prove such reduction in these cases would have been immaterial and irrelevant. It is true that this view of the question renders it possible that some portion of the expense of every sewer may be borne by the city; but it is apprehended that the burden thus sustained will generally be light. However this may be, a fair and reasonable interpretation of the charter clearly points to that result; and as the sewer is beneficial — 77 — to the city, independent of its special value to individuals, we cannot say on the whole that it is unjust or inequitable. We think the other ground assumed is equally untenable. The whole amount of benefits to individuals may be largely in excess of the whole cost of the sewer. In such a case it is not contended that the whole amount should be paid. It was doubtless competent for the city to prove, on the trial before the committee, that the benefit was equal to or greater than the sum assessed; and it does not appear but what the party there had the full benefit of that fact. But we do not see how that fact, standing alone, proves or tends to prove any irregularity or misconduct on the part of the committee. W.e cannot therefore perceive its relevancy, either by itself or in connection with any other fact alleged, upon the trial of the remonstrance. We think therefore that the judge did not err in rejecting this evidence. 3. It seems that there was no evidence offered before the committee to show the values of the particular lands, the owners of which were assessed for this sewer. It is alleged in the third reason of the remonstrance, that such evidence, in the judgment of the committee, was necessary in order to estimate the just proportion of the expense of the sewer which these appellants should severally pay. On the trial of the remonstrance the judge rejected the evidence offered in support of this allegation, and that is assigned as the fourth error. Had the appellees offered evidence to prove the value of the land on the trial before the committee, and such evidence had been rejected, there would have been just cause for complaint. But no such evidence was offered. Either party, deeming it material, might have offered it. Neither party, then, is in a condition to complain of its absence. 4. It is next objected that the judge erred in disregarding the rule of assessment adopted by the common council; to wit, to assess the owners of lands fronting on the sewer in proportion to the number of front feet owned by each. When or how this rule was adopted does not distinctly appear. It is not to be found in the charter, and our attention has not been called to any by-law, or city ordinance, containing any — 78 — such rule. From the language of the remonstrance we are led to believe that the rule is nothing more than a practice that has grown up in this class of cases. If so, perhaps that of itself would be a sufficient answer to this whole claim. We are not prepared to say that á simple rule of practice, even though uniformly acted on, is to have the force of law, so that a departure from it will alone vitiate the proceedings. If by departing from the rule and adopting another injustice should be done, we should doubtless set aside the proceedings, not because the rule had been disregarded, but because injustice had been done. So on the other hand, if substantial justice has been done, and the provisions of the charter virtually complied with, we ought not to disturb the judgment, notwithstanding the court adopted a rule differing in some respects from the rule adopted by the common council. But if the rule had been embodied in a by-law of the city, it ought not to receive the sanction of this court, unless it appears to be a fair and reasonable rule. City of Boston v. Shaw, 1 Met., 130. Waiving then the question as to the mode of its adoption, let us examine the rule and see whether it is reasonable in its operation. It disregards entirely the quantity of land affected. Two lots, with equal fronts, the one containing double the number of square feet contained in the other, are benefitted in different degrees. The rule taxes them alike. This is not in proportion to the benefit received. The proceeding under this charter is analagous to the proceeding prescribed by statute for draining meadow and marshy lands, and should be governed by the same principles. The statute referred to expressly provides that the assessment shall be made “ according to their quantity of land, and the benefits which they receive, in such proportion as the commissioners shall judge to be equal and just.” Gen. Statutes, tit. 54, secs. 2, 11. We agree that this statute is not conclusive; but is evidence that the legislature deemed it reasonable that, in the cases to which it applies, the quantity of land should be considered in making the assessment. We think it equally reasonable that the quantity should be considered in the cases now under consideration. — 79 — The rule also ignores the values of the lands benefitted. Two different lots, with the same length of front, may differ greatly in value, owing to a difference in location, or other causes, and hence be benefitted in different degrees. It is certainly reasonable that the one receiving the greater benefit should pay the greater tax. Yet an arbitrary rule, like the one contended for, taxes both alike. In the city of Boston an ordinance provides that sewer taxes shall be assessed according to the value of the land, without reference to the buildings thereon. The Supreme Court of Massachusetts held that the ordinance was valid, and the rule prescribed a reasonable and just one. Downer v. City of Boston, 7 Cush., 277. We cannot sanction a rule which excludes the value of the property in estimating the tax to be assessed. This rule also excludes from consideration any and all peculiar circumstances which modify the amount of benefit received. One man owns a piece of land extending from one street to another. A sewer in one street sufficiently drains his whole premises. Another sewer is constructed in the other street, from which he derives little or no benefit. This rule imposes the same burden upon him that it docs upon an adjoining proprietor to whom the new sewer is indispensable. The charter is silent as to any such rule. It provides that the “ court may assess a proportional sum of the expense of laying out, altering and making such public works, upon any person or persons specially benefitted thereby, and estimate the just proportion of such expense which such person should defray.” It evidently contemplates that the amount assessed shall be in proportion to the benefit received. The committee has expressly found that “ the persons liable to be assessed, and actually assessed for the expense of the sewer, were and are benefitted in very different degrees, for other reasons than the differing lengths of their respective fronts, and the differing distances of such fronts- from said sewer.” If therefore the committee had been governed solely by the length of the respective fronts, and the distances of such fronts from the sewer, the assessment would not have been in proportion to the benefit received. It seems to us quite clear that all the — 80 — circumstances, tending either to enhance or diminish the benefit received, must be taken into consideration. Again, the charter gives the party aggrieved the right of appeal. This would seem to be idle if the amount assessed to each individual must depend solely upon the relative length of front owned by him. In that case, estimating the amount of tax to be paid would be merely a mathematical computation, which could be performed by a mere school boy. The very fact that an appeal is given, seems to imply that the act appealed from involves the exercise of judgment and discretion. 5. It is further claimed that the judge erred in not paying sole regard to the effect of the sewer upon the market value of the land assessed, without reference to the present use of the property, or the present means and facilities for drainage through other channels. In one case, that of the First Ecclsiastical Society, the land assessed is at present occupied as a building site for a congregational church, with every prospect that it will continue to be so occupied for an indefinite time to come. The appellants claim that such use requires no drainage, in consequence of which, for the present at least, the sewer can be of no, benefit to them. This claim was sustained by the judge, and the property assessed accordingly. In this we seqnothing objectionable. We have already seen that the assessment should be in proportion to the benefit received. The present use of the property, which seems to be of a permanent character, forbids the idea of any immediate benefit. Before the property will need the advantages of a sewer, the sewer itself may be rendered worthless by lapse of time. If that could be known with certainty, the assessment should be little or nothing. On the other hand, the church edifice may be sold, and the property converted to other uses, within a short time. In such a case there should be little or no abatement. It is to be presumed that all such considerations were properly weighed by the committee, and allowed to have such weight as they were justly entitled to. In the case of Ely and others it appears that the appellants had previously constructed a private drain running under the — 81 — highway, in consequence of which the public sewer, as they claim, is of no special benefit to them. The judge so far sustained this claim as to reduce somewhat the amount assessed by reason of the private drain. We think he was justified in so doing. If any lot fronting on this sewer had been so situated as to be as easily and perfectly drained without the sewer as with it, there could have been no justice or propriety in taxing it; and for the simple reason that it received no benefit. The proprietor of such a lot can have no stronger claim for exemption than one who in good faith has been at the expense of furnishing himself with such facilities. The appellee objects that this drain, inasmuch as it passes under the highway, is a nuisance, and liable to be abated at any time. The record does not show it to be a nuisance. There was evidence tending to prove that it was constructed by the consent of the street commissioners. But however this may be, in the absence of proof to the contrary the presumption is that it was lawfully constructed. A license will, if necessary, be presumed. In the case of Clapp and others, the appellants had constructed their drain through other lands belonging to them. Much that has already been said applies with more or less force to this case,- and it is unnecessary to repeat it here. The appellees object, however, that the other land may be sold, and the right of drainage across it may thereby be lost. This may or may not be so. The probabilities, one way or the other, were doubtless considered by the committee. Whether the assessment should be reduced much or little was a question for him. The manner in which he exercised his judgment in this respect is not complained of. That it was his duty to take this circumstance into consideration seems to us unquestionable. The property taxed in these cases is to be distinguished from vacant lots. Here the lots are appropriated to some practical, substantial use, more or less permanent in its character ; while vacant lots are generally unoccupied. The advantage accruing to these lots from the public sewer is — 82 — either postponed indefinitely or materially diminished by the peculiar circumstances of each case. The advantage accruing to a vacant lot is direct and immediate. The full benefit of the sewer is at once realized in the increased value of the lot. In such cases there should be no abatement of the sum assessed in consequence of the non-use of the land. We see nothing erroneous in the proceedings complained of. In this opinion the other judges concurred.