Paul Scotton Contracting Co., Inc. v. Mayor and Council of City of Dover

• Decision Date: 13 December 1972
• Citation: 301 A.2d 321
• Parties: PAUL SCOTTON CONTRACTING COMPANY, INCORPORATED, a Delaware corporation, et al., Plaintiffs, v. MAYOR AND COUNCIL OF the CITY OF DOVER, and the City of Dover, a municipal corporation of the State of Delaware, Defendants.
• Court: Court of Chancery of Delaware

Page 321

301 A.2d 321

PAUL SCOTTON CONTRACTING COMPANY, INCORPORATED, a Delaware corporation, et al., Plaintiffs, v. MAYOR AND COUNCIL OF the CITY OF DOVER, and the City of Dover, a municipal corporation of the State of Delaware, Defendants.

Court of Chancery of Delaware, Kent County.

Dec. 13, 1972.

John J. Schmittinger, of Schmittinger & Rodriguez, Dover, for plaintiffs.

Januar D. Bove, and Bertram S. Halberstadt, of Connolly, Bove & Lodge, Wilmington, for defendants.

MARVEL, Vice Chancellor:

This action is allegedly brought by plaintiffs on behalf of all other property owners similarly situated, however, no attempt has been made to comply with the provisions of Rule 23 concerning the bringing of such form of action, and there has been no determination of a class. Plaintiffs' complaint seeks to have declared invalid special assessments for sewer and water main construction imposed on plaintiffs' real estate by defendants, which assessments under the terms of the charter of the City of Dover and statutes of the State of Delaware purportedly constitute liens against plaintiffs' properties. They seek to have the enforcement of said liens enjoined on the ground that they have been invalidly imposed, such special assessments being attacked on the grounds that they are ultra vires under the charter of the City of Dover, 36 Laws of Del., Ch. 158, that they were not assessed in accordance with the provisions of a resolution of the City Council of Dover of January 27, 1960, and that they were assessed without notice or opportunity to be heard. Plaintiffs and defendants have filed a stipulation as to conceded facts deemed material for the purpose of deciding their cross-motions for summary judgment. This is the decision of the Court on such motions.

Plaintiff Burger Construction Corporation is the owner of real property located on the north side of Walker Road in the City of Dover in an area known as Northwest Dover Heights. Plaintiff Paul Scotton Contracting Company, Incorporated, is the owner of real property located on the west side of Route 13 in the City of Dover, while plaintiffs George J. and Beulah D. Pyott are the joint owners of three pieces of real property located on the south side of Route 13, also in Dover.

The area which includes the property of plaintiffs Scotton and of the Pyotts, namely, the Martin-Cowgill Street area, was annexed to the City of Dover on August 14, 1962. Northwest Dover Heights, which contains the property of the plaintiff Burger, was annexed to the City of Dover on September 10, 1963 after the voters of Northwest Dover Heights had approved annexation in a referendum held on September 7, 1963.

In August 1965 the City of Dover began the installation of a sewage system in Northwest Dover Heights, including the locating of a sewer line in Walker Road along which plaintiff Burger's lot fronts. The system was completed and in service by December 1965, six months prior to the time that Burger became the owner of the lot it presently owns. Since the sewer line was already installed at the time Burger purchased its lot, such plaintiff assumed that the sewer had been paid for inasmuch as the title had been searched when the lot was purchased and no lien was reported.

Also in 1965 the City of Dover began the construction of a water main system, including a water transmission line in the area of Roosevelt Avenue east and west of Route 13 in the Martin-Cowgill Street area. Sometime in 1965 or 1966 a twelve inch water transmission line was installed in the right-of-way of Route 13 on which plaintiff Scotton's lot fronts. Such plaintiff's president, Paul Scotton, was aware of the work being done but gathered the impression from what he was told by workmen on the scene that they were putting in a water transmission line to serve homes in newly annexed areas farther south along Route 13. For such reason he did not believe that his corporation would be subject to an assessment for the costs of constructing such line. About the same time a water main was installed in the right-of-way of Route 13 along which the property owned by the Pyotts also fronts. Such property has been owned by the latter prior to the August 1962 annexation of such property by the City of Dover. These plaintiffs were aware of the work being done but assumed it would be paid for by bonds authorized by a January 1963 referendum.

Thereafter, at a public meeting held on December 12, 1966, the City Council of Dover, by resolution, levied an assessment against the property of Burger and other property owners of the City of Dover similarly situated for the costs of sewer line construction in the Northwest Dover Heights Area. The assessment was determined on a mathematical basis of an eight-inch sewer line, one-half of the construction costs to be borne by each of the abutting property owners on either side of the right-of-way. At the same meeting the City Council by resolution levied a special assessment against the properties of the plaintiffs Scotton and Pyotts as well as of other property owners similarly situated for the costs of water main construction in the Route 13 area.

This action was purportedly taken under authority of the resolution of the City Council of Dover of January 27, 1960 entitled:

'Policy of the City of Dover Relating to Areas Annexed, to be Annexed, and Areas within the City Limits Previously Unassessed.'

Under the terms of this resolution the City Council, inter alia, established estimated charges on a front-footage basis for sewer and water line installation in areas not presently having such services. It also established the procedure for making the assessments as follows:

'15. Charges assessed to property owners pursuant to this Resolution shall be established by the Utility Committee subject to the approval of City Council and thereafter filed with the City Clerk and published at least once in a local newspaper to be effective as of the date set forth in such notice. Such charges as are established as aforesaid shall become a lien on the property concerned. Such charges are to be entered on the tax records of the City of Dover and such entry shall constitute notice to the property owner of the charge against the property * * *'.

By further resolution the City Council, at a public meeting held on November 9, 1964, established a revised frontage-foot charge of $3.00 for water line and $5.00 for sewer line construction. These revised frontage-foot charges constituted the basis on which the December 12, 1966 assessments were made.

The making of special assessments for local improvements is an exercise of sovereign power by the legislature, 48 Am.Jur., Special or Local Assessments, § 8, municipal corporations as such having no inherent power to levy such assessments, 14 McQuillin on Municipal Corporations, § 38.06, and City of Hollywood v. Davis, 154 Fla. 785, 19 So.2d 111. However, in the absence of constitutional limitations, a state legislature may delegate to a municipal corporation and its officers such powers and functions as it may deem necessary, including the power to make special assessments, 2 McQuillin on Municipal Corporations, § 4.09, 14 McQuillin on Municipal Corporations, supra, and People v. Letford, 102 Colo. 284, 79 P.2d 274.

Since the exercise of the power to make special assessments is in derogation of the rights inherent in the ownership of private property, the law purporting to grant such power must necessarily be strictly construed in reaching a determination as to whether or not such power exists, 14 McQuillin on Municipal Corporations, § 38.07, and United States v. Merriam, 263 U.S. 179, 44 S.Ct. 69, 68 L.Ed. 240. Thus, it is generally held that the power to make public improvements does not of itself carry with it the power to levy and collect special assessments to defray the costs of such improvements, 14 McQuillin on Municipal Corporations, § 38.07, and Wilt v. Bueter, 186 Ind. 98, 111 N.E. 926, 115 N.E. 49. And it is clearly settled in Delaware that a municipal corporation has no authority beyond that which is expressly granted, fairly implied or indispensible to its declared objects and purposes, Mayor and Council of Wilmington v. Dukes, 2 Storey, ...