Opinion
January 7, 1925.
Timothy J. Nighan and Eugene Van Voorhis, for the plaintiff.
Clarence M. Platt and George B. Draper, for the defendant.
The city served notice on the plaintiff that his building located "at the northwest corner of Exchange street on the lands of the abandoned Erie Canal, is held by the undersigned [Commissioner of Public Safety and Deputy Superintendent of Buildings (Fire Marshal)], to be unsafe and especially dangerous and that the undersigned will enter upon and take down the said building," at the expense of the owner, forthwith. The notice also contained a direction that no person should thereafter enter, occupy or use the building. Thereupon the city did enter upon and demolish the building, and caused the total expense of the operation to be assessed as a tax against the property.
Plaintiff sues to have the lien of this tax canceled and set aside. It will be noted that the city did not proceed as if this building was a nuisance, and that it did not charge the owner in any way with responsibility for the unsafe and dangerous condition that it held the building to be in; nor did it require plaintiff, or give him an opportunity, to raze the building himself. On the contrary, he was expressly forbidden to enter it, and was notified that the city itself would take it down. Plaintiff complains that the city in the course which it has pursued, resulting in this tax lien, has violated his constitutional rights in that he has been deprived of his property without due process of law, and that he has been denied the equal protection of the law. The city claims to have acted by authority of certain sections of its charter and ordinances, and contends that the provisions of the charter giving the plaintiff the right to appear before its common council on grievance day, and also to make his objections to the assessment to the board of assessors, adequately secured him in all of his constitutional rights.
A reading of subdivision 4 of section 188 of the Rochester city charter (Laws of 1907, chap. 755), as added by Laws of 1912, chap. 354, with section 19 of article 2 of the building code of the city of Rochester, leads me to the conclusion that the city is not possessed of the remedy which it has here sought to exercise. The charter provision applies only in cases of the failure of the property owner to obey a lawful direction, written notice of which must first be served. In such case the expense that the city is put to, together with ten per cent in addition, may be assessed as a tax and inserted in the roll against the real property concerned. The ordinance only provides authority for the summary taking down of a building by the city in a proper case at the expense of the owner or party interested. Neither of these provisions refers or relates to the other. The ordinance, in failing to include a provision making the expense attendant upon the city's tearing away a building under its terms assessable as a tax, thereby excludes and withholds authority for such a power. In such case the city is relegated to its remedy in an action at law against the owner or party interested. ( Hannibal v. Richards, 35 Mo. App. 15.)
A tax is not a lien unless by express authority of a statute clearly manifested in it. It will neither be created by implication nor enlarged by construction. (37 Cyc. 1138.)
In my view, plaintiff is entitled to his day in court upon the questions which he asserts he desires to be heard. The complaint alleges that the assessment includes improper items, having no relation to the work of destroying the building. It also appears on submission that plaintiff claims the dangerous and unsafe condition of his building was caused by negligence of the city in its blasting operations in the street upon which the building was located, and that he not only desires to resist the payment of the improper items but the whole amount of this claim, and at the same time to urge his claim for damages caused by the city and resulting in the loss of his building.
A party cannot be deprived of his property without a judicial hearing, and although the stage of proceedings at which that hearing shall take place, and the manner in which the cause of a party shall be brought before the judicial tribunal, are with the legislative power, there must be an adequate and fair opportunity to be heard before an impartial tribunal before a valid determination can be made. Anything less than this is a denial of due process of law, and a failure to give plaintiff due protection of the law.
Due process of law requires an orderly proceeding adapted to the nature of the case, in which the citizen has a right and an opportunity to be heard, and to defend and enforce his rights, by establishing any fact which, under the law, would be a protection to him or to his property. (12 C.J. 1224; 6 R.C.L. 451.)
These so-called remedies are in no sense practical or reasonable in the circumstances of this case. They do not afford plaintiff a hearing before an impartial tribunal, where he may contest the claim set up against him, and be allowed to meet it on the law and facts.
"Due notice to a proprietor of a declared nuisance on his premises must precede any charge for removal or abatement made by the municipality. And he is entitled to a fair hearing and determination of the matters. And he may exonerate himself by showing either that the matter complained of is not a nuisance, that it was caused by the corporation itself, or that the expenditure was unnecessary." (28 Cyc. 757.)
A tax assessed upon an individual for the expenses of abating a nuisance upon his land, which has been created by the wrongful act of the city itself, is invalid. ( Smith v. City of Milwaukee, 18 Wis. 63; Weeks v. City of Milwaukee, 10 id. 248.)
The prayer of the complaint is granted; the tax is declared invalid and is set aside, and the lien thereof is discharged, with costs.