Atherton v. Vill. of Essex Junction

• Decision Date: 20 January 1910
• Court: Vermont Supreme Court
• Parties: ATHERTON v. VILLAGE OF ESSEX JUNCTION.

74 A. 1118

83 Vt. 218

ATHERTON

v. VILLAGE OF ESSEX JUNCTION.

Supreme Court of Vermont. Chittenden.

Jan. 20, 1910.

Appeal in Chancery, Chittenden County; Wm. H. Taylor, Chancellor.

Bill by Charles S. Atherton against the Village of Essex Junction. From a decree dismissing the bill, the orator appeals. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

J. J. Manahan and L. F. Wilbur, for appellant.

Martin & Bailey, for appellee.

HASELTON, J. This is a bill of complaint brought to the court of chancery for Chittenden county. The cause came on for hearing on demurrer, and, without argument and strictly pro forma, the demurrer was sustained and the bill dismissed. The case is here on appeal by the orator. The material allegations of the bill, which in this hearing are to be taken as true, will be recited.

In November, 1892, by direct act of the Legislature, the Essex Junction Graded School District in the town of Essex was incorporated and made a body politic, by the name of the village of Essex Junction. Laws 1892, No. 120. The management of the affairs of the village was vested in a board of trustees, and the village was authorized to make, alter, and repeal by-laws relating to streets, highways, sidewalks, alleys, commons, parks, sewers, water supply, fire protection, the watching and lighting of streets, and for other purposes. The village so incorporated was made one of the highway districts of the town of Essex and it was provided that the trustees should appoint a superintendent of streets for such district, and that highway taxes in such village and district should be used and applied by such superintendent under the direction of the trustees in building and maintaining the highways streets, walks, alleys, sidewalks, lanes, and sewers of the village. The offices of clerk, treasurer, collector, and fire engineers were created, and the trustees were empowered to appoint police officers, who by virtue of their appointment should have the usual authority of such officials. It was provided that the village might, for any of the purposes mentioned in the act, assess taxes on the taxable polls of residents of the village, and upon the list of real and personal estate taxable therein. The charter of the village is a public act, and as such is to be taken notice of in considering the pleadings. Village of Winooski v. Gokey, 49 Vt. 282. This being so, the act itself has been referred to in making the above recitals, although the bill itself appears to set out the provisions of the charter with sufficient fullness and accuracy. The bill recites the acceptance of the charter.

The orator, Charles S. Atherton, and his wife, Addie N. Atherton, reside on a farm of about 148 acres, situated within the limits of the village as incorporated. This farm is about a mile from what the orator denominates the "village proper," a phrase which is understood to mean the same as the words "Physical village," as used in the opinion in Noyes v. Village of Hyde Park, 73 Vt. 261, 50 Atl. 1008. This farm is used for agricultural purposes 'exclusively, and has not received and cannot have any benefit from the water supply, sidewalks, and other improvements, nor from the watching and lighting of the streets. Of the farm above mentioned the orator owns 50 acres and the orator's wife 98 acres. In the year 1907 the orator's grand list was $12, and that of his wife $25. In 1907 the orator paid, under protest, 88 cents, his share as assessed for that year of the expense of the village water supply, $1.46 as his like share of the appropriation for street lighting purposes, and 24 cents as his like share of the appropriation for sidewalk purposes. In the same year the orator's wife, under like protest, paid, for the corresponding purposes, $1.83, $2.25, and 51 cents, respectively. Both the orator and his wife were willing to pay, and offered to pay, and tendered without protest, all of the village taxes for the year 1907, except the sums mentioned. But the tender of a part of the taxes was refused, and so the whole sum was paid under protest. This bill was brought July 21, 1908, and therein the orator shows that his grand list as made up for that year is $12, that his wife's is $30, and that the trustees of the village had assessed the orator $2.16 on account of the water tax and for street lighting purposes, and 24 cents for sidewalk purposes, and that for the same purposes his wife had been assessed $5.40 and 60 cents, respectively, and that, while both the orator and his wife were willing and ready to pay all other village taxes, except those named, the said village corporation, through its officers, was threatening to enforce the collection of said taxes named, and to that end to sell and sacrifice the orator's property and his wife's property.

The bill sets out the interest of the orator as a husband of Addie N. Atherton in the property for which she is assessed, and avers that the burden of the taxation of her property falls upon the orator. The orator avers that the village corporation will, unless enjoined, continue through all future time to tax the orator and his wife, on the property above referred to, for the purposes of maintaining the water supply system, lighting the streets, and repairing the sidewalks, of which the orator can have no benefit. The orator avers that he has requested the village to extend the system of street lighting to his farm, but that the village has neglected and refused so to do; that he has requested the village not to assess him and his wife on their respective grand lists, on account of the water supply, street lighting, and sidewalks of the village, but that the village insists upon so doing, and will continue so to do unless enjoined, and that the taxation, and threatened taxation, for those purposes greatly depreciates the value of the farm in question, and renders it unsalable, and results in irreparable injury to the orator. The orator further shows that the village in raising taxes always votes a lump sum and a certain per cent. on the grand list for general village purposes, and does not designate the separate objects for which the taxes are voted, and that so it is impossible to know for what objects the tax is raised, nor to show the invalidity of the tax without resorting to extrinsic evidence, and that for those reasons the orator is compelled to resort to a court of chancery for relief, and that resort, from year to year, to suits at law to recover back taxes improperly assessed would require a multiplicity of suits; that the situation is oppressive, and creates a cloud upon the title to the farm, and works an irreparable injury to the orator. The orator prays that the defendant be enjoined from assessing any tax on his grand list, and that of his wife, for the year 1908, and in the future, for the purposes of the water supply, street lighting, and sidewalks mentioned, and that it may be decreed that the defendant repay to the orator all the money paid, under protest, by himself and his wife as taxes in 1907 and 1908 for the purposes of the water supply, street lighting, and sidewalks mentioned, and for other purposes. The orator also prays for general relief.

The Constitution, c. 2, § 9, authorizes the General Assembly to constitute towns, boroughs, cities, and counties, and the bill does not question the authority of the Legislature to incorporate the village of Essex Junction, and to include and exclude territory as it did. In borrowing the Constitution of Pennsylvania of 1776 we got the provision above referred to, and boroughs include villages. Dempster v. United Traction Co., 205 Pa. 70 54 Atl. 503, 509. Noyes v. Village of Hyde Park, 73 Vt. 201, 50 Atl. 1068, was a proceeding in the nature of a quo warranto, the gist of which was the claimed illegal action of selectmen, under ostensible legislative authority, in including a farm within the village limits, and thereby subjecting it to village taxation. There the selectmen, in including the land in question in village limits, had undertaken to proceed under statutory provisions for the establishment of villages, provisions substantially like those found in chapter 158 of the Public Statutes, and the claims there made were that the statute was an unconstitutional delegation of legislative power, and that the statute itself did not authorize the inclusion of the farm lands in question within village limits. That interesting case went off because of the death of the complainant, and the consequent dismissal of the proceeding, on the ground that the cause of action did not survive. The case is referred to for the purpose of making clear by exclusion the claims of the orator in the case now before us. The claim of the orator here is that, notwithstanding the valid incorporation of the village of Essex Junction and the valid inclusion of the farm in...