Citation Numbers: 183 N.C. 14
Judges: Hoke
Filed Date: 2/22/1922
Status: Precedential
Modified Date: 7/20/2022
As the court understands, it is not contended by appellant that the assessments in this instance are irregular as a matter of form, nor that the amount is excessive, but defendants object to the validity of the claim on the ground of lack of power in the city, statutory or otherwise, to make any assessments of this kind against defendant companies. First, because railroad companies do not come within the principle permitting assessments for local improvements against abutting owners. There is strong diversity of opinion on this question, but the decisions in this State, and they are in accord, we think, with the better considered cases elsewhere on the subject, are in favor of upholding such assessments in proper instances, and where proper legislative authority therefor is shown. Durham v. Public Service Co., 182 N. C., 333; New Bern v. R. R., 159 N. C., 542; Comrs. v. R. R., 133 N. C., 216; Cicero v. City of Chicago, 176 Ill., 501; Northern Pacific Ry. Co. v. Seattle, 46 Wash., 647; Sheley v. Detroit, 45 Mich., 431; L. & N. R. R. Co. v. Barber Asphalt Co., 197 U. S., 430; Northern Indiana R. R. Co. v. Connely, 10 Ohio St., 159, and these and other decisions on the subject here and elsewhere are to the effect, further, both as to railroads and other abutting owners, that the legislative declaration on the subject is conclusive as to necessity and benefit of the proposed improvements, and in applying thp principle and estimating the amount as against the owners, individual or corporate, the court may interfere only in case of palpable and gross abuse. Felmet v. Canton, 177 N. C., 52; Justice v. Asheville, 161 N. C., 62; Tarboro v. Staton, 156 N. C., 504-509; Milwaukee, etc., Ry. v. Wisconsin, 252 U. S., 100; French v. Barber Asphalt Co., 161 U. S., 324. And in the present case, as stated, there is no claim of abuse or oppression as to the amount assessed against the defendants or their property. Defendants except further that there is an entire lack of statutory authority for making the assessments which the action seeks to enforce. The facts show that a part of the assessments against defendants were for improvements made under a statute applicable to the city of Kinston, Private Laws 1913, ch. 202. In that statute the city was authorized, on approval by popular vote provided for in the act, to issue coupon bonds to the amount of $100,000 in order to provide funds to pave generally and to improve the streets, to enlarge and extend its water-works and sewerage system, to enlarge and better equip its electric light plant, install a fire-alarm, etc. The act further authorizes the mayor or council to pave, macadamize streets, sidewalks, and assess the amount, not to exceed one-third cost, against abutting owners of real estate on either side of the street according to frontage, and that such assessment shall be a lien on said real estate payable in equal install-
In Northern Pacific Railroad v. Seattle, supra, it was held, among other things, “That abutting property cannot be released from the burdens of an assessment simply because the owner had seen fit to devote it to a use which may not be benefited by the local improvement.” And in reference to the claims for improvements made and assessed under the general municipal act of 1915, appearing in C. S., ch. 56, art. 9, sec. 2703 et seq. This statute gives in explicit terms authority to municipal governments to assess abutting owners for street improvements, especially referring to railroads, providing that such claims shall constitute a lien on the property and franchise of the company, etc. The public acts contain, also, provisions as follows, C. S., 2704: “This article shall apply to all municipalities. It shall not, however, repeal any special or local law, or affect any proceedings under any special
It is contended for the appellants that the public act affords no authority for the assessment because of the existence of the private act referred to, ch. 202, Private Laws of 1913, and we are cited to Bramham v. Durham, 171 N. C., 196, as authority for this position. That was a case involving the validity of a bond issue, and it appeared that the public act passed in 1915 authorized a bond issue without the approval of a popular vote. At the same session, 1915, the Legislature passed a special act by which the city of Durham was authorized, if the measure was approved by popular vote, to make a bond issue of $300,000 to construct, pave, and improve the streets and sidewalks of the city of Durham. The city authorities undertook to issue bonds for the purpose indicated without approval of the voters as the private act required, and the proposed measure was enjoined. It will be noted that both acts were in force and effect, and it was clear that the bond issue permitted to Durham only after a vote was intended to provide for the entire work then contemplated, that it contained a clause repealing any and all laws inconsistent with its provisions, and the Court held that the private act, being still in force and requiring a popular vote, was inconsistent with the proposed issue without such vote and by correct construction it had the effect of exempting the city of Durham from the public statute, assuredly so while the private act was in force and intended to cover, for the present at least, the entire subject. But not' so here, where the bonds authorized by the private statute had been voted on, the measure approved, and the bonds issued and sold. There was nothing, therefore, in the private act that interfered or was intended to interfere with the power to proceed under the public statute, and to give full force and effect to the clause in O. S., 2704, that the public act shall be deemed additional and independent legislation for the purpose indicated, and shall provide an alternative measure for such purposes, “etc., etc.” The case presented is substantially similar to that of Fawcett v. Mt. Airy,
“There, as stated, the measure had been approved, and bond issue for the amount had been issued and disposed of.- The force and effect of the act was at an end, and the statute having fixed no limit on the amount, as in Burgin v. Smith, 151 N. C., 561, it was held that the question as to residue of the required expenditure was an open proposition to be dealt with by the municipality under its general power to provide for the' necessary expenses of the town.' It is fully understood, and has been repeatedly held, that the upkeep or repairs of streets, sidewalks, etc., is to be regarded as a necessary municipal expense, and requires no popular vote unless some law directly bearing on the subject may direct that such a vote be taken. See Hargrave v. Comrs., 168 N. C., 626, and case cited, and the provisions .of the private statute, ch. 202, Private Laws 1913, having been fully complied with, we see nothing in the facts as presented why the indebtedness incurred by the municipal authorities of Kinston does not constitute, in every way, a valid obligation of the city. The position is in no way affected by the Private Laws of 1915, purporting to ratify the acts of the municipal authorities in reference to the bond issue under the Private Laws of 1913, ch. 202. The statute of 1915 was evidently passed at the instance of the holders or proposed purchaser of the bonds, merely in order to cure apprehended defects of procedure, and thus make the bonds a more safe and desirable investment. No such defects, real or supposed, are set forth in the record, and in our minds this statute has no bearing on any question presented. '
In the appeal of defendants the question is also raised and duly presented as to which of the defendants is primarily liable for these assessments in case liability is established. As heretofore stated, this depends on the proper construction of the lease of the Atlantic and North Carolina Railroad to the Howland Improvement Company, and under which
While local assessments of this kind are not regarded as a tax in the sense of a general revenue measure, we have several times held that the right to enforce them is referred to the power of taxation possessed and exercised by government. They have been frequently denominated and held to be a special tax, in transactions of the kind presented here, and in this connection the length of th.e lease extending past the ordinary life of the improvement, in its benefit or burdens, has been allowed great weight. Chicago R. R. v. Kansas City, 75 Kan., 167; Cemetery Co. v. Phila., 93 Pa., 129; Erie v. Church, 105 Pa., 278; Gibbs v. Bank, 198 Ill., 307; Curtis v. Pierce, 115 Mass., 186; Harvard College v. Boston, 104 Mass., 470-483. From the purpose and duration of the lease, from the broad and inclusive nature and meaning of the language used, a covenant protecting the lessor “from payment of taxes of any nature whatever,” and from the better considered decisions on the subject, we are clearly of opinion that while the claim has been properly adjudged against both defendants, the primary liability between the two is on the lessee, the Norfolk Southern Railroad.
On defendants’ appeal we find no error, and the judgment is
Affirmed.
Plaintiff excepted and appealed from, tbe refusal of bis Honor to give judgment of foreclosure and sale as against tbe defendant railroads to tbe extent tbat tbe same would interfere witb tbe operation of tbe road and tbe discharge of tbeir duties as common carriers.
It is very generally beld tbat tbe Legislature may make these assessments a paramount lien on tbe franchise and property of a railroad, and in order to such an effect, it is not necessary for a statute to give such lien in express terms if by correct interpretation it intends tbat such a lien shall be conferred. And it has been beld tbat in creating a lien for these assessments for local improvements against abutting property, tbe statute necessarily intends it shall be tbe superior claim, for otherwise such property could be effectually or very largely withdrawn from bearing its proportionate share of burdens required by tbe public weal. Speaking to tbe question of Drainage Comrs. v. Farm Asso., 165 N. C., 697-702, a case substantially similar in principle, Chief Justice Clark said: “An analogous instance is tbe assessment of abutting proprietors for street improvements or upon landowners for building a county or township fence, all of which take priority over tbe bolder of a mortgage, because tbe mortgagor can convey no exemption from public burdens which be does not himself possess.” See, further, Baldwin v. Meroney, 173 Ind., 574, reported also in 30 L. R. A. (N. S.), at page 761, with a full and learned editorial note on tbe subject; Dressman v. Farmers Bank, 100 Ky., 571; Seattle v. Hill, 14 Wash., 487; 25 R. C. L. See page 188, title Special and Local Assessments, sees. 100 and 101. In tbe present case tbe private statute applicable to a portion of these claims, cb. 202, Private Laws 1913, and incorporating part of cb. 338, Private Laws 1905, gives tbe right to enforce tbe lien against tbe “property.” And in tbe public statute, C. S., cb. 56, made as a complete act in itself and in addition to any local legislation appertaining to tbe subject, a lien is given in express terms against abutting railroad property and its franchise. In section 2713 of tbe act it is made “from tbe time of tbe assessment and confirmation thereof, a lien superior to any and all liens and encumbrances,” and this by correct interpretation does not refer to subsequent liens, but tbe reference to tbe date of confirmation is only to fix tbe time when such lien is conclusively established, and when so established it takes precedence over all liens existent or otherwise. And further, in section 2717, tbe law provides, if tbe “lien is not paid when due, it shall be subject to tbe penalties now provided as in case of unpaid taxes.” Thus showing a clear purpose of tbe Legislature to make tbe lien effective and superior to any and all other liens or encumbrances. It would be an idle thing
There is error, and this will be certified that a proper judgment of foreclosure and sale be entered.
Error.