Davis Holding Corp. v. Wilcox

• Decision Date: 13 January 1931
• Citation: 112 Conn. 543,153 A. 169
• Court: Connecticut Supreme Court
• Parties: DAVIS HOLDING CORPORATION et al. v. WILCOX, Town Collector of Taxes.

153 A. 169

112 Conn. 543

DAVIS HOLDING CORPORATION et al. v. WILCOX, Town Collector of Taxes.

Supreme Court of Errors of Connecticut.

January 13, 1931

Appeal from Superior Court, Fairfield County; Edward M. Yeomans Judge.

Action for injunction by the Davis Holding Corporation and others to restrain Robert M. Wilcox, Collector of Taxes in the Town of Greenwich, from proceeding with the collection of certain taxes. Judgment for defendant, and plaintiffs appeal.

No error.

H Allen Barton, of Greenwich, for appellants.

William S. Hirschberg and John R. Deming, both of Greenwich, for appellee.

Argued before MALTBIE, HAINES, HINMAN, BANKS and AVERY, JJ.

MALTBIE, J.

By a special law of 1911, the town of Greenwich was divided into nine sewer districts, and provision was made for the construction and maintenance of sewer systems in each district. 16 Special Laws of 1911, p. 412. This law was somewhat amended in 1915. 17 Special Laws of 1915, p. 221. It provides that the sewer commissioners of the town, either on their own initiative or upon a petition of a majority of the electors in any district, are to prepare plans for a proposed drain, sewer system, disposal works, or either, with an estimate of the cost, and submit them to a special town meeting called to consider them, and that, if a majority of the electors present and voting approve, the commissioners shall proceed with the work; that if the town votes to construct such a drain sewer system, or disposal works, " or any part thereof," maps, plans, and specifications are to be filed in the town clerk's office; that the commissioners shall advertise for proposals for the construction of the drain, sewer system, or disposal works, or either, " or such portion thereof" as may have been approved, and for the letting of contracts for the work; that a map shall be made of so much of any district as is specially benefited by the construction, showing the highways and several parcels, of land, and the expenses of construction shall be apportioned by the commissioners against the land specially benefited in accordance with the benefits received, with provision for notice to landowners affected, a hearing, an appeal by any person aggrieved, and for the collection of the assessments and liens upon the land against which the assessments are made in case of nonpayment. After a drain, sewer system, or disposal works are constructed, they are to be maintained by the commissioners, and the cost is made a charge against the property specially benefited; the commissioners are to prepare an estimate of the cost for each system separately, and appropriations therefor are to be made as they are for other departments of the government; the commissioners are to present to the town board of estimate and taxation a statement showing the total assessed valuation upon the grand list of the town last completed of the real estate benefited by each sewer system, and that board then determines tax rates to be laid upon the valuation of each parcel of property specially benefited, to meet the appropriation, and this tax rate is to be submitted, according to the provisions of the act, as are other town tax rates to a town meeting for approval; and the taxes so assessed are to be collected by the town tax collector upon rate bills signed by the commissioners, as are other town taxes. Section 10 of the law gives the commissioners power before the construction of any sewer in a district has commenced to make such changes in the boundaries of a district as may be necessary from an engineering standpoint; and section 18 gives them power to connect any new or existing sewer with one already in existence, with provision for the determination and apportionment of the value of such connections upon property specially benefited, and for an assessment of such apportionment against those properties.

In 1918 the commissioners completed the construction of a sewer system in the ninth district. It consisted of mains and a disposal plant, with three underground septic tanks and a pump to carry off the sludge to a drying bed, to which later were added two open sludge beds. After the system was completed the sewers were extended into a portion of the territory included in the eighth sewer district, and, as the finding, unquestioned in this particular, states, this was done pursuant to section 18 of the special law and with an assessment of the value of the connection upon properties specially benefited as provided therein. The commissioners and town officers received complaints of noxious and offensive odors emanating from the sludge beds at the disposal works, and they were threatened with suit unless the nuisance was abated. Accordingly, in 1928, the commissioners, in presenting to the board of estimate and taxation their estimate of money required to maintain the system for the next year, included an item of $15,000 to cover the cost of an inclosure over one of the existing sludge beds, and the item was included in the appropriations recommended by the board and in those made by the town. Thereafter the commissioners proceeded to construct the inclosure. The plans called for a building fifty-nine feet long by forty feet wide, with a heavy concrete foundation and substructure, reinforced by steel, and a superstructure with a steel frame covered by heavy sheet glass. The total cost of this, with some incidental work upon the filtration bed which was a part of the sludge, bed, was $12,676. The commissioners thereupon presented to the board of estimate and taxation a statement purporting to show the total assessed value upon the last grand list of the town of all the real estate specially benefited by the system, and the board laid a tax upon the property of seven mills upon the dollar. The plaintiffs own land in the ninth sewer district, and bring this action for themselves and all others owning land in the district similarly affected to restrain the defendant from proceeding to collect this tax and for a declaration that their property is not subject to a lien on account of it and as to their rights in the premises. The trial court found the issues for the defendant, and gave judgment for him, and the plaintiffs have appealed.

The basic question upon the appeal is whether or not the building of the structure over the sludge bed was properly dealt with as an item in the maintenance of the sewer system or should have been treated as original construction, requiring approval by a special town meeting called for that purpose and an assessment of benefits in the manner provided for such structures. The word " maintain" has no precise legal significance in the construction of statutes, its meaning varying with the statute in which it is used, the subject-matter of the law, and the purpose to be accomplished by it. Decisions in other states construing particular statutes are therefore of little assistance to us. One of the approved definitions is " to hold or keep in a particular state or condition, especially in a state of efficiency or validity." Webster's New International Dictionary. See Ferguson v. Rochford. 84 Conn. 202, 204, 79 A. 177, Ann.Cas. 1912B, 1212; Boston, Petitioner, 221 Mass. 468, 475, 109 N.E. 389; Louisville & N. R. Co. v. United States Iron Co., 118 Tenn. 194, 211, 101 S.W. 414.

If we turn to the law in question there is present significance in two of its general features. It provides for the manner in which the construction of " a drain, sewer system, and disposal works, or either" shall be initiated authorized, and the cost thereof collected; but nowhere in it is any specific provision made for the procedure to be adopted in making improvements to disposal works which have already been constructed and recovering the expense thereof. To be sure the law in one place qualifies the words quoted by adding " or any part thereof," and in another by the phrase " or such portion," but in both instances the context shows that these phrases have reference to a situation where the town meeting votes to construct not all but only a part of the work proposed by the commissioners. Improvements to existing disposal works can therefore be brought within the terms of the law only by a some what liberal construction either of the provisions for the original construction or of those for their maintenance " after construction. To limit the word " maintenance" to the mere repair of disposal-works and their preservation in the condition in which they were left after the original construction would be to require that all improvements, no matter if of small cost, must be regarded as construction, requiring the calling of a special town meeting, and, if approved, procedure by assessment to secure the cost. We cannot think that such a result was intended. Again, the procedure by assessment to pay for the expense of construction requires that the cost be " apportioned by said commissioners against the land specially benefited within said district in the proportion, as nearly as may be to the special benefits which each lot or parcel shall derive therefrom." Such an apportionment cannot legally exceed the actual benefits which accrues to each lot from the work in question. Whitmore v. Hartford, 96 Conn. 511, 519, 114 A. 686. There are obviously great practical difficulties in showing actual benefits to property connected with a sewer leading to disposal works, which have accrued from some improvements reasonably required for the efficient operation of the plant. Thus, in the instant case, it is not questioned that the building of the structure over the sludge bed to prevent offensive odors from it was a proper improvement to make; yet an improvement of this nature might well not increase the efficiency of the plant to...