Hilliard v. City of Asheville

^* AVERY, J., did not sit on the hearing of this case. The charter sections relating to the improvement of streets are as follows:

"Sec. 5. To equalize the assessments on real estate for the purpose described in section 4, next above, the said mayor and board of aldermen shall assess a (the) total cost of such improvement made throughout the entire length of such work and improvement, and shall then prorate the cost thereof on the real estate abutting thereon, according to the frontage on the street or portion of the street so improved, and charge to such real estate on each side of the street upon which such work is done its pro rata share of one-third the cost of such street improvement made under the provisions of this act: Provided, however, that in order to avoid embarrassing landowners in subdividing and selling their property, by reason of the liens thereby created upon the same, they be subdivided in any manner as they see fit, and shall furnish the city engineer with a plat of the same; the lots fronting on the streets to be so paved and improved to be of any desired frontage, but not less than one hundred feet in depth; and the assessment made and lien created by virtue of this act for sidewalk or street improvement, or both, shall be made upon such front lots only; and where any such cases of frontage is (are) subdivided into lots, each of said lots shall be charged with its ratable proportion of said assessment and lien according to its frontage; and when the board of aldermen shall order paving or other improvements to any street, they shall have the same accurately surveyed and a permanent grade thereof established and accurate map made of the various lots and properties abutting upon said street, showing the exact frontage of each lot, and (847) also of the subdivisions, if any, of the frontage of each; and the said map shall be filed, together with a tracing of the same, in the office of the clerk of the city, to be subject to public inspection. When the assessment and liens herein provided shall have been made upon the various lots and properties on the streets, the said clerk shall write in ink upon said map the amount assessed upon the same, and he shall keep a record book showing such assessments and liens, and the date and amount of all payments made upon any of said assessments and liens.

"Sec. 6. The amount of assessment for such street's improvement, and for sidewalks, exclusive of curbing, and for roadways, as hereinbefore provided, on each piece of real estate, being estimated as above directed, shall be a lien on such real estate, and the said mayor and aldermen shall cause the city engineer to make a survey and a report of the amount of work done (and) the cost thereof, upon which street and sidewalk, the name of each abutting owner thereon, the number of feet on each lot, and the pro rata share of such cost of such street and sidewalk improvement to be assessed against such real estate; and upon the adoption of said report the said lien shall become complete and operative, which said report shall be transcribed upon the minutes of said board of aldermen, and the amount of said lien and of said assessment against all property abutting on said street, as aforesaid, shall become due as follows: one-sixth in six months and the balance in five equal-amount installments. The adoption of said report of said surveyor by such board of aldermen shall constitute the said lien for the amount therein stated against each of the (848) separate pieces of real estate therein described, and the same shall become due and payable as aforesaid; and in case of failure to pay either of the said assessments in thirty days after its maturity, then all shall become due at once, and an execution shall issue by the clerk of said board of aldermen directly to the marshal of said city, who shall advertise the land upon which said defaulting assessments are made, as aforesaid, or (as) required by law for sale of land for taxation under the provisions of the charter of said city, and shall sell the same and give to the purchaser a receipt, stating the time the land was advertised, the day of sale, the purchaser, the price paid, the assessment due thereon, the cost of sale, the name of the owner of the land and the description of the lands sold; and the owner of the land sold shall have twelve months within which to redeem said land, by paying to the purchaser the amount he paid and twenty per centum additional; but if the land is bid off for the city or for said sinking fund, then the owner, in order to redeem the same, must pay the assessment due on said land, the cost of the sale and twenty per centum on said assessment. If the land is not redeemed within twelve months, then the marshal shall make to the purchaser a deed for said land, and the same shall operate to convey to the purchaser the title to said land, and the proceeds of said sale shall be applied, first, to the payment of all that then may remain unpaid upon said assessment and liens, together with the cost of such sale, which costs shall be the usual fees allowed the marshal for selling land for taxation; the balance, if any, of such proceeds shall be paid to the owner of said land at the time of said sale: Provided, however, that any owner of said land may have the privilege of paying off all of said assessment before due, and upon such payment the said lien shall be released and discharged pro tanto: Provided further, that (849) any owner of land upon which said lien for such assessment exists shall have the right to file before the mayor and board of aldermen of said city (an) affidavit denying the whole or any part of the amount, if any he admits, to be due, which amount so admitted to be due he shall pay or tender, accompanying his affidavit with it and before it shall be received, and then the said affidavit shall be received only for the balance, and all such affidavits so received shall be returned to the Superior Court of Buncombe County for trial, and it shall be considered that the issue as to the amount then due is raised upon reception of each affidavit and without any plea upon the part of the city of Asheville, but this shall not be construed to prevent the said city of Asheville from filing an answer or any other defense to which it may be entitled under the laws of North Carolina; and upon such trial, if the issues be all found in favor of the affiant, then the lien shall be discharged; if, however, the issues shall be found in favor of the city of Asheville to any amount, and if it be thereby ascertained that the affiant is due to said city any amount by virtue of the matters therein referred to, then the said amount so found, together with eight per centum interest thereon from the date of its maturity, and together with the costs thereon accrued, which costs shall be assessed as costs in other civil actions, shall be and continue a lien against the property upon which the original assessment was placed, and shall be collected by an execution issuing from said Superior Court, directed to the marshal of said city, which shall be collected by him, by the sale of said land, as hereinbefore provided, in case of execution issuing from the clerk of said city.

"Sec. 7. The said mayor and the board of aldermen of said city, by its proper officers, shall have the exclusive control and management of said work upon the sidewalk and streets for (850) all the work and improvements thereon herein contemplated, and shall complete the same, and the whole of the cost thereof shall be paid for out of the proceeds of the sale of the bonds hereinbefore in this act authorized to be issued and sold, the said city itself being liable for the costs of curbing, and for one-third (1-3) of the street or roadway between the curbing, and the abutting land on each side assuming the liability hereinbefore created: Provided, however, that whatever of the cost of street improvements which may be paid by or assessed against any street railway hereinafter provided for shall be deducted from the proportion of the costs thereof for which the said city is liable, as aforesaid: Provided, that in case the said city may not have on hand at any time sufficient funds arising from the sale of said bonds to meet the amount then due for the work aforesaid, the mayor and board of aldermen are directed hereby to advance the same from the general revenues of said city, but such amount so advanced shall be refunded out of the funds arising from said bonds as soon as it is realized."

Plaintiffs contended that the act under which defendant was proceeding to collect from them special assessments for street improvements was unconstitutional, because it violates the Constitution of North Carolina, Art. VII, sec. 9, requiring all taxes to be uniform, in that the rule of uniformity is not observed, the abutting land receives no benefit over and above that of citizens generally, and because "there is a want of power, and the method adopted for the assessments of the benefits is so clearly inequitable as to offend some constitutional principle," viz., the principle "that no person can be deprived of his property without just compensation and due process of law" [ib., Art. I, sec. 17; Const. U.S. (Amend. 14) sec. 1]; that it also violates the Constitution of North Carolina, Art. V, sec. 3, requiring a (851) "uniform rule for taxing real estate according to its true value in money"; that it also violates the Fourteenth Amendment to the Constitution of the United States (section 1), in that no remedy is provided for relief under the act, unless by admitting and tendering some part of the assessment claimed to be due.

His Honor granted the injunction, and defendant appealed. The principal points in this case are decided in Raleigh v.Peace, 110 N.C. 32, and adversely to the plaintiffs. Indeed, chapter 125, Laws 1891 (the charter of Asheville), is less open to objection than the act construed in Raleigh v. Peace. It makes each street or portion of a street improved a taxing district (Cooley Const. Lim., 624, 6th Ed.) by requiring the cost of the total improvement on each street or portion of a street improved to be ascertained and one-third thereof assessed upon the property abutting on each side of the street, proportioned according to the "frontage" of each owner, and provides means whereby each property owner may contest his assessment by proceedings begun before the board of aldermen, with the right of appeal. The act is uniform in the method of assessment. The will of the Legislature is clearly expressed, and the courts have no power to interfere unless an act is plainly unconstitutional. If the unconstitutionality of an act is not beyond reasonable doubt, the courts will uphold it. King v. R. R., 66 N.C. 297. It is not a question in anywise of eminent domain, or taking private property for public (852) use (White v. Bloomington, 94 Ill. 604), and there is due process of law, as ample notice of the assessment, with opportunity to be heard, is given the property holder. Davidson v. New Orleans, 96 U.S. 97. While other modes of assessment are valid, that of assessing by the front foot is not only sustained by the numerous cases cited in Raleigh v. Peace, supra, and numerous other cases, among themChicago v. Joliet, 39 N.E. 1077; McKeesport v. Busch, 33 N.E. 49, and cases cited in Cooley on Taxation, 644, but the "frontage" rule is essentially equitable. By that rule the owner of unimproved property, who has contributed nothing to the prosperity of the city, but who is benefited by all improvement, pays his just share towards the enhanced value of his property, whereas, under an assessment upon the basis of the value of each lot, the buildings, which have no value added to them by the improvements, contribute. The added value being to the land, the front-foot rule, regardless whether the property is improved or unimproved, is ordinarily the most just. There may be cases in which the length of the taxing district and the diversity of values may make the assessment grossly lacking in uniformity. If that is so in this case, that objection can be raised in proceedings regularly brought under the act of 1891 (chapter 135).

While a local assessment is not a tax within the purport of constitutional limitation upon taxation (Raleigh v. Peace, supra), yet, as the plaintiffs might have made their annual payment (one-twentieth), and have had their action at law to recover it back, they were not entitled to the equitable relief by injunction. There was no irreparable damages threatened, the cost being divided into twenty annual payments, with twelve months' right to redeem in event of a sale for nonpayment of an assessment. At any rate, the act itself prescribed a special method (section 6) by which the validity and regularity of such assessments can be contested, and the plaintiffs, having (853) that remedy, cannot proceed by injunction. McIntyre v. R.R., 67 N.C. 278. This remedy is also adequate as to the culvert and all other points of detail excepted to.

As to the point, which was much pressed, that the act contemplated charging the property on each side with only one-sixth of the cost of the improvement, it seems to us that it is clear, beyond ambiguity, that one-third of the cost is to be assessed on the real estate on each side of the street. The language of section 4 provides that "the mayor and board of aldermen shall assess one-third of the cost of grading, paving, etc., on the real estate abutting on each side of the street so improved or repaired." Section 5 provided that the mayor and board of aldermen shall "charge to such real estate on each side of the street upon which work is done one-third of the cost of such improvement." If this could possibly, by any reasonable method of construction, be held to admit of a doubt that the property on each side of the street should pay one-third of the cost, and consequently that the property on the two sides should pay two-thirds of the cost, the matter is placed beyond controversy by the further provision in section 7, that the city itself should pay one-third, "the abutting land on each side assuming the liability hereinbefore created," i. e., two-thirds. Thus the whole cost is provided for — one-third by the city and one-third by the property on each side of the street improved. The act being constitutional, whether any particular lot is overassessed or improperly assessed is a matter which must be litigated in the manner and by the proceeding provided for that purpose by the act itself. Whether the plaintiffs or any of them are estopped by their conduct from insisting upon their objections to the assessment upon their property is a matter (854) which will come up in such proceeding and need not be considered here. The injunction was improvidently granted and must be dissolved.

Error.

Cited: Broadfoot v. Fayetteville, 121 N.C. 423; Wilson v. Green,135 N.C. 351; Teeter v. Wallace, 138 N.C. 268; Asheville v. Trust Co.,143 N.C. 373; Kinston v. Loftin, 149 N.C. 256; Kinston v. Wooten,150 N.C. 298; Schank v. Asheville, 154 N.C. 41; Tarboro v. Staton,156 N.C. 506; Lewis v. Pilot Mountain, 170 N.C. 110.