Haggart v. Alton

WHITING, J. Section 1, c. 213, Laws 1903, known as the “Sewerage Act,” provides: “Any city shall have full power to construct systems of sewerage in such manner and .under such regulations as the city council shall deem expedient, but shall not enter upon such construction until such city shall ’have been divided into sewerage districts, nor until a plan shall have been adopted therefor * * *” Section 2 of such act authorizes the city council to cause diagrams of the plans of sewerage for each sewerage district to- be prepared. Section 3 provides for the giving of a notice that the — 532 — diagram- of plans has been prepared, that the same may be inspected, and that, at a time and place to- be named in the notice, an opportunity will ibe given for the people interested to object to the same. Section 4 provides for a hearing of the objections and authorizes the adoption, of' the plans by the council if the objections are overruled. Section 5 provides that, when the plans for any sewerage district have -been finally determined upon, a complete diagram thereof shall be prepared and filed in the office of the city auditor. Section 6 provides that, whew a city has adopted plans under the foregoing sections, and the council shall deem is necessary to construct the system or some part thereof, the council shall by resolution declare the necessity for the system or such part thereof, and, if the part of the system which they may deem it necessary to construct does not constitute the whole of a district, the council “shall state the location and designate all terminal points thereof,” and shall give notice of the passage of such resolution and of the time and place where objections to the construction may be filed. Said section further provides that: “Thom the time of the adoption of ’such resolution, the city council shall have jurisdiction to make the improvements therein specified, and assess the cost thereof upon -the property benefited thereby, as hereinafter provided.” Then follow numerous sections relating to the letting of contracts for the installation of the system, providing for the payment therefor, and other matters only a few of which are necessary to our present discussion. The city of Brookings undertook to establish a sewerage system under the provisions of this act. It let a contract, and there was installed a system covering part of such city. Assessment certificates were issued against the several lots within the territory covered by the sewerage installed. A certificate issued against defendant’s lot not having been paid, this action was brought to recover the amount due thereon and to forclose the lien claimed under such certificate. Demurrer was interposed to the complaint, suoh. -demurrer was overruled, and an appeal taken from the order overruling same. Our opinion on such appeal is to be found in Haggart v. Alton, 29 S. D. 509, 137 N. W. 372, to which reference is.made for a statement of the contentions of — 533 — the parties and our holdings thereon. We reversed the trial court, basing such reversal upon the fact that it did not appear that the provisions of sections 1-3 'had been complied with. It appeared from the complaint that the resolution of necessity had been adopted, and that a notice 'had1 been .given 'which the plaintiff and respondent contended was sufficient to cover the requirements not only of section 6, but of sections 1-3. We held that, while the proceedings pleaded were sufficient to show a compliance with the provisions of section 6, they did not comply with the provisions of sections 1-3, and that a compliance with the provisions of such sections was jurisdictional. Upon the. return of this cause to the trial court the complaint was amended, so as to set forth proceeding's alleged to have been taken under the provisions of said sections 1-3. The cause proceeded to trial and resulted in findings and judgment for the plaintiff. From such judgment and from an order denying a new trial this present appeal was taken. [1] While many assignments have been presented, we are of the opinion that the crucial question before us is as to whether or not such a compliance with -the provisions of sections 1-6 was shown as would give to the city council jurisdiction to install the sewerage that was installed, and as would comply with those provisions of the Constitution that forbid the taking of a person’s property without due process of law. Upon the former appeal we held, as hereinbefore noted, that the complaint showed a compliance with section 6 of the act. The complaint alleged that the resolution adopted thereunder was one declaring the necessity of installing a sewerage system for the “first sewerage district” of said city. In 'holding such resolution sufficient under the provisions of section 6 we assumed that the plans were for a system a part of which was designated as “first sewerage district.” Under the amended complaint and the evidence submitted in support thereof it appears that the city council had a diagram of plans for a sewerage system for such city prepared; that such diagram treated the whole system as a single district; and that the notice given under the provisions of section 3 spoke of the system as one district and described it in detail as though it were but one district. Upon the completion of. such, diagram the council attempted to give a notice under section 3; and thereafter — 534 — the council passed a resolution adopting the said diagram of plans. Appellants question the sufficiency of the steps taken under sections 1-2, the competency and sufficiency of the proof of the publication of the notice given under section 3, the sufficiency of the publication as proven, the competency of the proof of the notice itself, and' the legal sufficiency of the notice proven. We have considered all the questions raised, but deem it unnecessary to discuss them in detail. We are of the opinion that the steps taken by the council were authorized 'by and complied with the provisions of sections 1-3, and resulted in the lawful adoption of plans for a system of sewerage for one sewerage district which district comprised the whole city. These plans disclosed that, in reality, the said sewerage system was divided into two separate and independent parts, one including that part of said city north of the railway running through such city, the other including that part south of such railiwa3r. The statement of the engineer who prepared such plans, and which statement was attached to and filed with such plans, declared: “This practically comprises two main districts, one north of the railway tracks, and one south of same.” [2] But appellants contend that, because the plans adopted were plans for a system comprising but one district, and the resolution of necessity referred to' but a part of the system, and, instead of stating its location and designating the terminal points thereof (as provided by section 6), spoke of it as the “first sewerage district,” there was not such a compliance with the provisions of ■section 6 as was necessary in orier to give the council jurisdiction to proceed with the installation of such part of the system. The record discloses that, after the adoption of the plans and prior to the giving of the notice of, and adoption of the resolution of necessity, the council passed an ordinance purporting to divide the sewerage system of the city into two districts known as “first sewerage district” and “second sewerage district,” which districts conformed to the divisions above noted, the “first sewerage district” comprising the part of the system north of the railway, and' the ¡other that part south of the railway. Of course, if this ordinance was valid and ’had the effect of lawfully dividing the sewerage system into districts, then there can be no question but that' — 535 — the description contained in the resolution of necessity was ample. Was such description, even though the ordinance did not have the effect of dividing the system into districts, a substantial compliance with the provisions of section 6? The clear purpose of that provision of section 6 which requires, in case the council contemplate installing the system in part of a district only, that the resolution and the notice shall give the terminal points of the part to foe constructed, is that the people interested may foe apprised of the action contemplated and may take steps to protest if they desire. A description is certain which is capable of being made certain through the examination of records to which it fairly calls one’s attention. The full description of the sewerage system as set forth in the notice of the resolution of necessity was: “A complete sewer system in sewerage district No. i of said city, as defined by the provisions of Ordinance No. 5 of said city, entitled, 'An ordinance relating 1» sewerage districts,’ approved March 23, 1907, according to the plans and specifications for such sewerage system now on file in the office of the city engineer, and copies of which are now on file in the office of the city auditor of said city.” We are of the opinion that, inasmuch as one reading this notice would receive therefrom such information as, followed by reasonable investigation, would fully advise him of the boundaries of the proposed work, the' notice should be held good at least as against one who makes, no claim that he was misled by the description given. [3] Appellants, however, contend that the ordinance dividing the system into two districts was invalid, and that, although a reference to such ordinance and the plans on file may ‘have rendered the description in the resolution of necessity and notice thereof a sufficient description of the part of the system- that the council deemed it necessary to construct, yet such part of the system was but a part of the “district”, for which plans ‘had been legally adopted; the sewerage installed being less than that of “an entire sewerage district,” the assessment as made was void, and the certificate sued on was invalid. Section 9 of this act provides that the council may divide sewerage districts into sub-districts for purposes of assessment; the basis of division being — 536 — that each subdistrict shall contain territory in which “the benefits of such sewerage are uniform' and equal.” A division was made and- the assessments levied were uniform within each subdistrict. But section n provides that: “The cost of any sewer or sewers being for less than an entire sewerage district under one contract shall be apportioned among the lots benefited thereby at a uniform rate per front foot without regard- to the lines of assessment subdistricts provided for in this act.” Appellants contend that, the sewerage installed being less than “an entire district,” the assessment could only be made at “a uniform rate per front foot without regard to the lines of assessment subdistricts.” It is undisputed that the assessments as made were uniform within each subdistrict, but were not at a “uniform, rate per front foot” throughout the whole of the territory covered by the sewerage installed. [4] Appellants cannot -be heard to raise this objection to this assessment at this time Even though it should be conceded that the ordinance by which the council sought to divide the sewerage system into districts was ineffective for that purpose, appellants were advised by the notice of the resolution of necessity that there was such an ordinance. The purport of such ordinance was clear, and appellants had clear notice that the council was. proceeding — either rightfully or wrongfully — on the theory that the sewerage to be installed was the sewerage of ,an entire district. They were thus advised that, if the council thought the benefits to be unequal throughout such district, it would be the duty of such council to subdivide this assumed district into sub-districts for the purposes of assessment. We must presume, in the absence of all evidence to the contrary, that the division into sub districts for purpose of assessment was jus-t — that it was based upon conditions not only justifying such division, bu<requiring it if, as assumed, the sewerage installed comprised a whole district. No claim is made that the assessment against, appellants’ lot was inequitable, nor have appellants sought a new assessment or offered to pay such sum as might be found just. The debt and the lien agiainst appellants’ property do not arise- by virtue of the assessment solely, but rather through the installation of a public improvement which has 'benefited such property; the — 537 — certificate is the mere evidence of the authorized determination as ■to the amount of tire burden which this property should bear in consideration of such benefit. [5] We are thus confronted with this situation: The council, after adopting- the resolution of necessity, had jurisdiction to install the sewerage; appellants had notice that the council were proceeding under the assumption that the portion to be installed comprised a system for a whole district; appellants, being advised of these facts, and knowing that in due course an assessment based upon benefits received must follow and that such assessment would be uniform .-within assessment subdistricts if the council thought division into subdistricts necessary to provide uniformity and equality, stood by and allowed the city council to enter into a contract and install the sewerage; it is only when pay day arrives that appellants enter any complaint. It does not behoove one to thus remain silent while a municipality is openly engaged in the making of a public improvement under an authority vested in .it, and, after such improvement has been completed and his property has received benefits therefrom, to question, for the first time, the legality of the steps taken by such municipality, and, relying upon some failure to comply with the strict letter of the law, seek to escape his just share of the burdens incident to the benefits received. We fully agree with the following from McCoy v. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453: “Principle and authority forbid that property owners should be allowed to stand by, inactive and passive, until after the work has been done, and then come in and take from thé contractor the value of his work and materials without compensation. For such persons the law has no very tender regard.” That our Legislature desired this principle to guide the courts of this state is evidenced by the provisions of section 25 of this act, which reads in part as follows: “No injunction to restrain proceedings, under the provisions of this act. shall be maintained unless the same shall be issued prior to making the contract -herein provided for. Tn any action to resist the payment of any assessment or any part thereof made under the provisions of this act, the court shall disregard1 — 538 — any and all irregularities or defects, whether in the proceedings of the city council or any officer of the corporation. * * *” The- judgment and order appealed from are affirmed.