Haggart v. Alton

Decision Date25 June 1912
Citation137 N.W. 372,29 S.D. 509
PartiesHAGGART v. ALTON et al.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Brookings County; C. X. Seward, Trial Judge.

Action by Gilbert W. Haggart against Arthur Alton and another. From an order overruling a demurrer to the complaint, defendants appeal. Reversed and remanded.

Hall Alexander, Roddle & Purdy, for appellants.

M. E Culhane and Olaf Eidem, for respondent.

SMITH J.

Appeal from the circuit court of Brookings county. Action to recover an amount alleged to be due on a sewer certificate issued by the city of Brookings to the plaintiff, Haggart, as contractor, against property owned by defendants, for the construction of sewerage. The complaint demands judgment for the amount of the certificate, $50 attorney's fees, and prays that defendant's property be sold according to law to satisfy the judgment. The complaint sets out in minute detail each step in the proceedings of the municipal authorities, creating sewerage districts, the contract under which the sewerage was constructed, the acceptance of the work, and other matters. The complaint is very voluminous and no useful purpose would be served by an attempt to recapitulate its allegations and recitals. Defendants filed a general demurrer to the complaint, which was overruled. This appeal is from the order overruling the demurrer. The sewerage proceedings were under the provisions of chapter 213 of the Laws of 1903. Only two objections to the complaint are urged by appellant upon the demurrer: First. That chapter 213, Laws of 1903, provides for sewerage districts and contemplates equality of special taxation only within subdistricts, and is unconstitutional under the provision of section 10, art. 11, of the Constitution. Appellant contends that this section requires special taxes for local improvements to be uniform throughout the jurisdiction of the municipality levying the same. Second. That the complaint does not state a cause of action, for the reason that it fails to allege the giving of the notice of hearing required by section 3 of the act of 1903. Section 1 of the act, among other things, provides that 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 provides that the city shall first cause diagrams of proposed plans to be prepared. Section 3 provides that, upon the completion of diagrams of the proposed sewerage, notice shall be given in the official newspaper of the city that plans for district sewerage have been prepared, and are open for inspection at the office of the city auditor; that all persons owning or interested in real estate in the district are entitled to examine the same at any time within 10 days after the first publication of the notice, and to file objections thereto; that on the day specified in the notice the city council will be in session at the council chamber, to consider objections filed, and that all persons may then and there be heard; that such hearing shall be within 10 days after the last publication of the notice, which must be published at least once a week, for two consecutive weeks. On the day specified the city council must take up and consider all objections to the proposed plans, and, when a plan is finally determined upon and adopted, a complete diagram thereof shall be prepared and filed in the office of the city auditor. Section 6 provides that, after such plans have been adopted, whenever the city shall deem it necessary to construct any sewer, the city council shall, by resolution, declare the necessity therefor, and 10 days' notice of the passage of such resolution shall be given by publication in the official newspaper of the city, which notice shall state the time and place when and where property owners may make objections to the construction of such sewerage. The complaint in this case does not allege the giving of the first of these notices, namely, of the time and place of the meeting of the city council at which persons owning or interested in real estate in the district may file objections to the proposed plans of sewerage, as shown by diagrams. The complaint does allege that on March 23, 1907, the city council divided the city into two sewerage districts by ordinance, and caused diagrams and plans for a system of sewerage for each district to be prepared; that thereafter notice of the time and place of hearing and considering objections to said plans and to the construction of a sewerage system was given by publication of the following notice: "Notice of sewerage construction. Notice is hereby given that the city council of the city of Brookings, South Dakota, has under consideration the passage of a resolution declaring it necessary to construct a complete sewer system in Sewerage District No. one (1) of said city entitled, 'An ordinance relating to sewerage districts. Approved March 23, 1907,' according to plans and specifications for such sewerage system now on file in the office of the city auditor of such city, and that all property owners along the line of proposed sewers may appear before the city council at the council chambers in the city hall of said city on the 19th day of April, A. D. 1907, at eight o'clock p. m. of said day, and may then and there make objections to the construction of said sewer, and to the final passage of such resolution. Dated at Brookings, South Dakota, this 1st day of April, A. D. 1907."

It is respondent's contention that the act which provides for sewerage districts and for equality of special assessments or taxation within such districts is constitutional and valid, and that the notice above set forth is a sufficient compliance with the provisions of the statute, and that the trial court committed no error in overruling the demurrer. We shall consider these contentions in the order indicated.

It was held in Bailey v. Sioux Falls, 27 S.D. _____, 132 N.W. 703, that section 17, art. 6, of the state Constitution, requiring all taxation to be equal and uniform, controls special assessments and special taxation within taxing districts. Whittaker v. Deadwood, 23 S.D. 538, 122 N.W. 590, 139 Am. St. Rep. 1076. The declaration of that section that "all taxation shall be equal and uniform" embodies a general rule or principle applicable alike to every form of taxation, whether it be special taxation or assessment of contiguous property, for local improvements, or taxation for general corporate purposes. This provision is not a grant of power to the legislative branch of the government, but is a limitation upon legislative power expressly granted by other provisions of the Constitution. Section 10, art. 11, of the Constitution, confers authority on the Legislature to vest governing bodies of cities, towns, and villages with power to tax for the purposes therein specified, first, by special taxation of contiguous property for local improvements; and, second, by general taxation for corporate purposes. The section reads as follows: "The Legislature may vest the corporate authority of cities, towns and villages with power to make local improvements, by special taxation of contiguous property, or otherwise. For all corporate purposes all municipal corporations may be vested with authority to assess and collect taxes, but such tax shall be uniform in respect to persons and property within the jurisdiction of the body levying the same."

It is appellant's contention that the latter clause, "such tax shall be uniform in respect to persons and property within the jurisdiction of the body levying the same," applies to and is a limitation upon the power to grant municipal bodies authority to levy special taxes for local improvements, and requires that special taxes levied for local improvements shall be uniform upon all property within the jurisdiction of the body levying the same. We think appellant is in error in this contention. The two kinds of taxation contemplated by this section are different in character, application, and mode of levy.

It is settled by the decisions of this court, sustained by the great weight of authority, that special assessment or special taxation is lawful and constitutional only when founded upon special benefits accruing from the improvement for which the tax or assessment is laid. In very few, if any, cases would it be possible for a local improvement to specially benefit all property within a municipality, and, if the construction contended for by appellant be adopted, it is apparent that special assessments or taxation for local improvements must in such cases be held unconstitutional under that provision of section 13, art. 6, which declares that "private property shall not be taken for public use without just compensation." Bailey v. City of Sioux Falls, supra; Searle v. City of Lead, 10 S.D. 312, 73 N.W. 101, 39 L. R. A. 345; Whittaker v. City of Deadwood, 23 S.D. 538, 133 N.W. 590, 139 Am. St. Rep. 1076.

It is absolutely clear that section 10, art. 11, was intended to confer upon the Legislature power to authorize municipalities to make local improvements by special taxation of contiguous property or otherwise, and if it be held, as contended by appellant, that special taxation for local improvements must "be uniform in respect to persons and property within the jurisdiction of the body levying the same," the latter provision of section 10 would in effect nullify the authority of the Legislature to authorize special taxation for local improvements, contained in the first clause of the section. To our minds it is entirely clear that...

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