Johnston v. City of Hartford

• Decision Date: 05 April 1921
• Citation: 96 Conn. 142,113 A. 273
• Court: Connecticut Supreme Court
• Parties: JOHNSTON et al. v. CITY OF HARTFORD.

113 A. 273

96 Conn. 142

JOHNSTON et al. v. CITY OF HARTFORD.

Supreme Court of Errors of Connecticut.

April 5, 1921

Case Reserved from City Court of Hartford; Herbert S. Bullard Judge.

Action by Warren G. Johnston and another against the City of Hartford, brought to the city court of the city of Hartford under section 5241, General Statutes 1918, asking that a lien filed by the defendant upon property of the plaintiffs to secure the payment of an assessment of benefits occasioned by the pavement of street be adjudged invalid and discharged. All issues of law raised by demurrer to the complaint and arising upon the record were reserved by the city court for the advice of this court. Judgment for defendant advised.

Arthur E. Howard, Jr., and Lawrence A. Howard, both of Hartford, for plaintiffs.

Walter S. Schutz and Philip Roberts, both of Hartford, for defendant.

BURPEE, J.

In this reservation the advice of this court is desired upon the issues of law raised by the defendant's demurrer to the complaint. The principal admitted facts are that in the summer of 1919 the city of Hartford, without petition therefor, caused to be paved with asphalt a part of a street within its original limits, called Wethersfield avenue, not exceeding four miles in length, in addition to pavement petitioned for by property owners. Two-thirds of the cost of this pavement was assessed upon property abutting on the line of the improvement, and one-third upon the city itself to be paid out of its treasury upon the order of the common council. The street railway tracks of the Connecticut Company extend through the center of the street where the pavement was laid. The cost of paving the space within these tracks and two feet outside of the outside rails was deducted from the estimated cost of the whole work and excluded from the assessment. Of the " net estimated cost," the portion assessed upon the city by vote of the board of street commissioners approved by vote of the common council was $31,232.70; and to provide for this expenditure the common council at the same time made an extra appropriation of that amount and authorized it to be added " for bookkeeping purposes," to the annual appropriation made to the street department and charged to " permanent improvements." The portion assessed upon the plaintiffs, who are citizens and owners of abutting property especially benefited by the improvement, was $241.43. After the completion of the work and the assessment of benefits, the board of street commissioners, within the time limited by the city charter, lodged for record with the town clerk of Hartford a certificate of lien in the proper form. About July 1, 1920, the plaintiffs gave written notice to the defendant to discharge this lien, but this request has not been complied with. Therefore the plaintiffs bring this action under section 5241 of General Statutes 1918, asking that this lien be adjudged invalid.

The first issue of law raised by the demurrer relates to a provision of the city charter concerning the powers of its common council, which was first enacted in 1859, and re-enacted in 1917 in these words:

" No vote or resolution of said common council, ordering a public work or improvement which shall require an expenditure of more than twenty-five thousand dollars, shall be obligatory on said city unless approved by a majority vote of a city meeting, duly warned and held for that purpose." Sp. Laws 1917, p. 888.

It is admitted that the pavement laid on Wethersfield Avenue required an expenditure by the city of more than $25,000, and that the vote or resolution of the common council relating to it has not been submitted to or approved by any vote of a city meeting. The city contends that this vote or resolution was not subject to the restriction because " the paving of a street is not ‘ a public work or improvement’ within the meaning of this provision" of its charter, and cites the decision of this court in New Haven v. Whitney, 36 Conn. 373, in 1870, and Colwell v. Waterbury, 74 Conn. 568, 51 A. 530, 57 L.R.A. 218, in 1902, and relies particularly on the decision of this court in Park Ecclesiastical Society v. Hartford, 47 Conn. 89, in 1879, in which this part of the defendant's charter was considered and interpreted according to the circumstances of that case. Respecting the first two cases referred to by the city, it must be noted that the method of improving streets therein considered was macadamizing, which was only " a means of maintaining or repairing a highway," and " not in any sense a public work or improvement." This has been the opinion and understanding in other municipalities of the state. Indeed, in the first charter of the city of Hartford, granted in 1784, the power to lay taxes for paving highways within its limits was expressly withheld from the freemen of the city unless previously authorized by the General Assembly; and no further provision specifically mentioning paving in this city was made by the Legislature until 1893. During these hundred years and more highway improvement with the material then in general use was considered and treated as " one of the ways by which the city might perform its duty of maintaining and repairing its highways," as it was described in Colwell v Waterbury, 74 Conn. 573, 51 A. 530, 57 L.R.A. 218. But the greatly increased traffic on city streets and the wear and tear on their surfaces caused by new kinds of vehicles, such as the automobile and the motortruck, in time made it apparent that a durable pavement was necessary and desirable for comfort and economy. So in 1893 a special law amending the charter of the city was passed, which gave its common council power to cause its streets " to be paved and repaved with paving material other than the macadam in general use," and also the power, upon petition of two-thirds of the owners of land abutting on a street or portion of a street to be paved or repaved, and after it had approved and ordered a pavement of the kind specified in their petition, to assess one-third of the cost upon the city and two-thirds upon abutting property, and to enforce the collection of such assessments by liens on the property benefited in the manner provided by the city charter " in the case of assessment for benefits arising from other public works and improvements." 11 Sp. Laws, p. 462. In an amendment of this act in 1895 a section was added in which it was declared that it " shall be the duty of the city to pave with granite, asphalt, or other substantial pavement, and not including macadam, at least one-half mile of highway in each year, in addition to the amount petitioned for by the property owners." 12 Sp. Laws, pp. 617, 618. Here is a plain recognition of paving as a distinct work of a substantial and permanent kind, and differing in material and expense from street improvements with the macadam in general use before that time. Here, too, we find the expression of an intention to regard the new kind of pavement which might be laid thereafter, not as maintenance or repairs, but as public work or improvement. Twenty years later (Sp. Laws 1915, p. 343) granite, asphalt, and concrete pavement were enumerated among the kinds of improved or substantial pavement, for the cost of which assessments might be made as in the case of other public works.

In Special Laws of 1917, p. 869, it is provided that " the city of Hartford may cause to be paved with granite, asphalt, or other substantial pavement other than concrete" a certain length of highway, with power to assess a share of the expense upon abutting owners in the same manner as an assessment is laid " for benefits arising from other public works and improvements."

Under these powers and directions the pavement and assessment described in the complaint have been laid. There can be no reasonable doubt that it is a public work and improvements within the meaning of those words wherever they are used in the city charter.

In Bowditch v. New Haven, 40 Conn. 503, the laying of a " substantially new pavement" of macadam was said to be a public work or improvement for which an assessment of benefits might be laid under the city charter which authorized the city council to pave the city streets without specifying the material to be used. In the charter of the city of Bridgeport, granted in 1907, the paving of streets with macadam, cobbles, or asphalt is called and treated as a public improvement. Citizens' Association v. Bridgeport, 84 Conn. 383, 80 A. 203.

The defendant leans heavily on the case of Park Ecclesiastical Society v. City of Hartford, 47 Conn. 89. This was an appeal from an assessment of benefits from the construction of a sewer which was built in 1872 and required an expenditure larger than the sum then fixed by the provision of the charter which we are now considering. The vote of the court of common council ordering this work had not been approved by a vote of a city meeting. The entire expense was assessed upon property owners especially benefited. This court held that this provision " was intended to apply only to improvements which affect the public at large and which are paid for by the city." This sewer was a local improvement, which directly affected and especially benefited the people of a particular locality in the city. To these people it was to be regarded as an advantage rather than a burden, and therefore they should bear the whole expense. The public at large was not directly interested in this improvement, and its cost should not be made a public burden to be laid on the community by general taxation. " There can be no occasion," said this court, " for the people of the whole city to vote upon a question of local improvement in which they have no direct interest, and...