Hampton is an agency the state has created to enforce the collection of these sewer assessments, and at the same *Page 181 time is the owner of an interest in the land assessed. Its rights and duties, therefore, are in some respects conflicting; and the questions raised by the different exceptions will be considered, first, in so far as they relate to the duties and liabilities of the parties under chapter 79, Public Statutes, and then in so far as they relate to liabilities of the parties to each other, both under the lease and at common law. It was held in Granite State Land Co. v. Hampton, 76 N.H. 1, that the Land Company must pay Hampton their just share of the assessment. The validity of the assessment is therefore res adjudicata as to them, but not as to the Improvement Company.
The authorities on which the Improvement Company relies tend rather to deny than to sustain the contention that section 4, chapter 79, Public Statutes, is in conflict with the fourteenth amendment to the federal constitution; for the only property that can be assessed under that section is property that is specially benefited by the sewer, and such property can only be assessed for its fair share of the cost of improving it. All the cases, without exception, hold that such a statute is not open to the objection that it permits the taking of private property without compensation or without due process of law. French v. Company, 181 U.S. 324,345; Norwood v. Baker, 172 U.S. 269; Heavner v. Elkins, 69 W. Va. 255, — 26 Ann. Cas. 653, 655, note.
A statute which limits the property that may be assessed to pay for building a sewer to the property specially benefited, and the assessment that may be made on such property to its fair share of the cost of improving it, is not open to the objection that it permits the making of an unequal assessment. White v. Gore, 183 Mass. 333. If section 4, chapter 79, Public Statutes, is unconstitutional in so far as it permits making the owner personally liable for an assessment greater than the value of the property after it is improved, it does not help the Improvement Company; for it does not appear that this is such an assessment, and the only person who can question the validity of a statute is one who is affected by the unconstitutionality of the provision of which he complains.
Although section 7, chapter 79, Public Statutes, provides that whenever there is occasion for a new assessment the selectmen — not the court — shall make it, that section has no application in this case, but rather section 6 of the same chapter, which provides that on appeal the court shall make such order as justice requires. *Page 182 It is highly improbable the legislature intended that a cause should be sent back to the selectmen when the occasion for the new assessment arises because of the court's findings on an appeal; for if in such cases the selectmen made any order other than the one the court finds ought to be made, it would be its duty to vacate the order on appeal.
The question whether any of the parties can recover back, either under the lease or at common law, the amounts they have paid to Hampton depends on whether the assessment is a tax within the ordinary meaning of that word, and not on whether making the assessment is an exercise of the taxing power. The tax the parties probably had in mind when they made the lease was its ordinary annual tax, and that this is not such a tax is too clear for argument. The tax a lessee can recover from his lessor, in the absence of contract, is a tax assessed, not on his own, but on his lessor's interest in the property, which he must pay or be evicted; and this is such a tax.
If Dow, the Improvement Company, and Hampton were tenants in common, instead of having separate estates in the land (Granite State Land Co. v. Hampton, supra), there would be no doubt as to his right to contribution if he paid the tax (Gage v. Gage, 66 N.H. 282); and as the duty to contribute depends on the equitable principle that equality of burden as to a common right is equity (Campbell v. Mesier, 4 Johns. Ch. 334), no reason is apparent why they should not contribute in this case. There is no merit the Improvement Company's contention that Dow's failure to appeal from the assessment estops him to call on them for contribution. Whether he should have appealed depends on whether that was the reasonable thing to do; and that not only has not been found, but there is nothing in the case from which it can be found.
Case discharged.
All concurred. *Page 183