Town of Tarboro v. Forbes, 185 N.C. 59 (1923)

Feb. 28, 1923 · Supreme Court of North Carolina
185 N.C. 59


(Filed 28 February, 1923.)

1. Municipal Corporations — Cities and Towns — Streets—Improvements— Statutes — Constitutional Haw — Taxation.-

While local assessments against lands along the streets of a city for paving and improving the streets may be regarded as a species of tax, and the authority therefor is generally referred to the taxing power, they are not levied and collected as a contribution to the maintenance of the general government, but more particularly confer advantages or improvements on the lands assessed, and do not fall within the intent and meaning of the State Constitution, Art. V, sec. 5, or our statutes, C. S., 7768, 7901; and the city, in assessing private owners, must take into consideration any city property that abuts on the street improved. C. S., 2710 (14).

2. Same — Legislative Powers — Rule for Assessment.

It is a matter for the Legislature to determine, by statute, whether the land abutting on a street improved shall be assessed for such improvement according to frontage, or area, or benefit.

3. Same — Municipal Property — Public Parks.

In the absence of constitutional or statutory provision to the contrary, the public property of a municipality, such as parks, etc., is subject to assessment for local improvements of its streets, and when there is no provision exempting them, a public park of a city is included within the intent and meaning of Laws 1915, ch. 56, providing that lands abutting on a street to be paved or improved should be assessed for such improvements to the extent of the respective frontage of the lots thereon, in a certain proportionate part of the cost, by the “front foot” rule.

4. Same — Petitions—Majority of Lineal Feet — Municipal Orders — Nullity.

Under a statute requiring that a majority in number of the owners of lots and frontage of lots on a city street may petition for the paving and improving of the street upon which their lots abut, lodge the petition in the office of the municipal clerk, who shall submit the petition to the governing body, etc., it is necessary to the validity of the order for the improvement made by such governing body that the owners of abutting land shall have the majority of the frontage, as well as be the majority in number; and where the petition has not been signed for the city, and the city frontage is omitted, an order by the governing body to improve the street in conformity with the prayer of the petition is a nullity.

5. Same — Conclusiveness of Municipal Orders.

Where it appears to the court as a fact that a city has not signed the petition for street pavement and improvements submitted to its governing body through the municipal clerk, and that it was necessary for it to do so for the petitioners to own the required frontage on the abutting street to comply with the statute, a further provision in the statute that the action of the municipal body, upon the investigation and report of the clerk, shall be final and conclusive, will not conclude the court from vacating the order of the city to improve the street according to the *60prayer of the petition; for otherwise it would subordinate the law, and the unlawful appropriation of property, to the action of the governing body of a municipality.

6. Municipal Corporations — Cities and Towns — Streets—Improvements— Petition — Statutory Requirements.

The failure of the signature of the owners of a majority of the lineal feet abutting on a street petitioned to be paved or improved, as required by the statute, is a substantial and material departure from the essential requirements of the law under which the improvements are allowable, and will invalidate an assessment accordingly determined upon by the governing board of the municipality ordering the work to be done.

CONTROVERSY without action, heard and determined by Darnels, J., at November Term, 1922, of Edgecombe.

The case agreed shows these facts:

East Park Avenue, a street regularly laid off and established in the town of Tarboro, extends from Main to Panola Street, and between these two it is intersected by St. Andrew, St. Patrick, and St. David streets. Abutting the avenue on the north are several residential lots' with a lineal frontage of about 1,300 feet, excepting the space occupied by the intersecting streets, and on the south of the avenue is the abutting town common, with practically similar lineal frontage. The common is owned by the town and held for the use and enjoyment of all its citizens.

Some of the owners of the property situated .on the north side of the avenue, having a frontage of about 760 feet, and desiring to have the avenue paved, presented to the town commissioners the following petition:

“The undersigned property owners on that part of East Park Avenue, lying between Main Street and Panola Street, do respectfully petition your honorable body, to grade and pave with asphalt pavement, that part of East Park Avenue lying between the streets named, under the act of the General Assembly of North Carolina, being Public Laws of 1915, ch. 56, and further-under said act, to charge one-half (%) of the total cost of said pavement, exclusive of so much of the cost as is included at the street intersections, to the lots and parcels of land abutting directly on said East P'ark Avenue (exclusive of the Town Common), according to the extent of their respective frontages thereon, by an equal rate per front foot of said frontage. The said paving to be a 24-foot roadway between the curbs, one-half of the costs to be borne by abutting property owners and one-half by the town of Tarboro, N. C.”

In pursuance of the statute, the petition was. lodged with the clerk, who testified as a result of his investigation that it was properly signed by a majority in number of the owners, and that they represented a majority of all lineal feet of the frontage abutting on the avenue for *61which the pavement was proposed; and thereupon the town commissioners, reciting their finding of facts, made the following order:

“Now, therefore, be it resolved and ordained by the board of commissioners of the town of Tarboro, at its regular October meeting in the year 1919, that that part of Park Avenue which lies between Main and Panola streets be properly graded and paved with asphalt pavement, under and by virtue of Laws 1915, eh. 56, and amendments thereto, and the procedure thereunder; and that for the purpose of securing uniformity of work the same be done by contract of the entire improvement.

“That one-half of the cost of such improvement be hereafter assessed upon the lots abutting directly on said improvement, exclusive of the town common (which property is not to be considered in making this assessment), according to the extent of their respective frontages by an equal rate per foot of such frontage, the assessments against the said lots abutting upon said improvement, exclusive of the common, to be based upon the total cost of paving such street between the limits set out, exclusive of the street intersections.”

Thereafter the avenue was paved and the cost of the work was assessed one-half against all the owners of property abutting on the north side of the avenue (except street intersections) and one-half against the town as a municipality. The amount assessed against the defendant is $764.41. The cost of other streets recently paved was assessed one-third against the property owners on each side and the remaining third against the town as a municipality.

His Honor, finding that the petition had not been signed by the town as owner of the common, held that such signing was necessary in order to have said petition signed by the owners representing a majority of the lineal feet of frontage abutting on the avenue, and that as no part of the cost had been assessed against the town as the owner of the common and one-half the cost had been assessed against the owners on the north side of the street, the assessment was illegal and void. There was a judgment for the defendant, and the plaintiff appealed.

Don Gilliam for plaintiff.

Allsbrook & Phillips for defendant.

Adaks, J.

The question first to* be determined is whether the park or common described in the record was liable to a special assessment for the paving of East Park Avenue, a contiguous street.

Both the Constitution of North Carolina and the statute law provide that property belonging to the State or to municipal corporations shall be exempt from taxation. (Art. V, sec. 5. C. S., 7768, 7901.) But there *62is a distinction between local assessments for public improvements and taxes levied for purposes of general revenue. It is true that local assessments may be a species of tax, and that the authority to levy them is generally referred to the taxing power, but they are not taxes within the meaning of that term as generally understood in constitutional restrictions and exemptions. They are not levied and collected as a contribution to the maintenance of the general government, but are made a charge upon property on which are conferred benefits entirely different from those received by the general public. They are not imposed upon the citizens in common at regularly recurring periods for the purpose of providing a continuous revenue, but upon a limited class in return for a special benefit. These assessments, it has been suggested, proceed upon the theory that'when a local improvement enhances the value of neighboring property, it is reasonable and competent for the Legislature to provide that such property shall pay for the improvement. And in the absence of some restraining constitutional provision on the subject, whether the assessment shall be made according to frontage or area or benefit is a question of legislative expediency. Dillon on Municipal Corporations (5 ed.), secs. 1430, 2497; 2 Elliott on Roads and Streets (3 ed.), sec. 663; Willard v. Presbury, 14 Wall., 676; Parsons v. District of Columbia, 170 U. S., 45; French v. Barber Asphalt Paving Co., 181 U. S., 324; Chadwick v. Kelly, 187 U. S., 542; Raleigh v. Peace, 110 N. C., 32; Durham v. Public Service Co., 182 N. C., 333; Morganton v. Avery, 179 N. C., 551.

In the various jurisdictions there is diversity of opinion with respect to the question whether a municipal corporation may levy a special assessment against its own property when used for the benefit of the public. Generally speaking, the decisions may be classified as follows:

(1) Those in which it is held that a municipality has no power to subject its own property when used for public purposes to a special assessment for a local improvement. Herman v. Omaha, 75 Neb., 489; State v. Several Parcels of Land, 79 Neb., 638.

(2) Those in which it is held that the property of a municipality is not subject to such special assessment unless expressly authorized by statute. St. Louis v. Brown, 155 Mo., 545; Barber Asphalt Paving Co. v. St. Joseph, 183 Mo., 451.

(3) Those in which by the great weight of authority it is held that the public property of a municipality is subject to a special assessment for local improvements. New Orleans v. Warner, 175 U. S., 120; Higgins v. Chicago, 18 Ill., 276; McLean County v. Bloomington, 106 Ill., 209; Newberry v. Detroit, 164 Mich., 410; Whittaker v. Deadwood, 139 Am. St. Rep. (S. D.), 1076; Boyd v. Milwaukee, 92 Wis., 456; Ross v. *63 New York, 3 Wend. (N. Y.), 333; Raleigh v. Peace, supra; Durham v. Public Service Co., supra; Morganton v. Avery, supra.

In Scammon v. Chicago, 42 Ill., 193, it is said: “It appears from tbe record that there are public grounds on the east side of the street, and a public square, known as Dearborn Park, on the west side, and that these were wholly exempted from the assessment. The entire burden was imposed upon the private property owners on one side of the street, except the cost of the intersections. We are wholly unable to see how this can be reconciled with the principle prescribed by the Legislature, and requiring the assessment to be laid upon all the property benefited. It is insisted by the counsel for the city that this public property is not benefited because it is public, and cannot be sold or diverted to any other than its present uses. But even as a park or public pleasure ground, it is clearly benefited by having the streets bounding it kept in good condition. If it were the pleasure ground of a private corporation, held solely for that purpose, and accessible only to its members, and incapable of alienation, no one would deny that it should be assessed for an improvement of the character in common with the property of individuals. We do not see'that the case is different because instead of being the property of a private it belongs to a municipal corporation, in trust for all its citizens.”

In Newberry v. Detroit, supra, the question was whether a public park abutting on Edison Avenue, a distance of about 820 feet, was subject to a local assessment for paving the avenue under a clause in the city charter levying the assessment according to frontage. McAlvay, J., delivering the opinion of the Court, said: “Construing the language of the charter relative to assessments for paving, we do not find any exemption of public grounds. In cases which hold the extreme doctrine that no property of the state is exempt from special assessments, and also those which hold that certain properties belonging to the public are exempted by statute from taxation, the decisions are harmonious in holding that the exemptions apply ‘only to the taxes mentioned in the general tax law.’ . . . The requirement of the law under which this assessment was made is that it must be according to the frontage upon Edison Avenue. Detroit Charter, 1904, pp. 182-184. Yoigt Park occupies about one-fourth of this entire frontage. It was not assessed. The entire cost was assessed against the remaining three-fourths, and not according to the frontage of each abutting lot. The law governing these assessments cannot be allowed if any frontage is omitted. This park frontage abutting upon the avenue should have been assessed for this paving. It was not exempt from such assessment.”

And in New Orleans v. Warner, supra, Mr. Justice Brown, in discussing the question, used this language: “The argument is that public *64property, being exempt from taxation, is also exempt from these assessments; but the authorities haA^e long recognized a distinction between general taxes, which are for the benefit of the public generally and which in the nature of things the public must directly or indirectly pay, and special assessments for the benefit of particular property, which are a charge upon the property benefited. If this be private property, then each owner of such property pays his share; if it be public property,'the city pays it as the agent of the entire body of its citizens, who are assumed to have been benefited to that extent. Charnock v. Fordoche & G. T. Special Levee Dist. Co., La. Ann., 323.” 16 Ann. Cas., 888 n; Ann. Cas., 1917 D, 849 n.

These decisions fairly illustrate the spirit of the prevailing doctrine that a constitutional exemption from taxation of property belonging to a municipal corporation does not apply to special assessments which are made for local improvements; and this doctrine seems to be supported and fortified by a statute which provides that no lands in a municipality shall be exempt from local assessment. C. S., 2710 (4). "We therefore hold that in computing the lineal feet of frontage of the lands abutting on the avenue the town common should not have been excluded.

But here another question arises. C. S., 2707, is as follows: “The petition for a local improvement shall be signed by at least a majority in number of the owners, who must represent at least a majority of all the lineal feet of frontage of the lands (a majority in interest of owners of undivided interests in any piece of property to be deemed and treated as one person for the purpose of the petition) abutting upon the street or streets, or part of a street or streets, proposed to be improved. The petition shall cite this article, and shall designate by a general description the local improvement to be undertaken and the street or streets, or part thereof, whereon the work is to be effected. The petition shall be lodged with the clerk of the municipality, who shall investigate the sufficiency thereof, submit the petition to the governing body, and certify the result of his investigation. The determination of the governing body upon the sufficiency of the petition shall be final and conclusive.”

The clerk certified that the petition was signed by a majority in number of the owners of the abutting property, and that they represented a majority of all the lineal feet of frontage. Thereupon, the board of town commissioners adopted a resolution reciting that a majority of those who owned abutting property, representing a majority of the lineal feet of frontage had signed the petition requesting that the avenue be paved and providing that one-half the total cost, not counting the space occupied by the intersecting streets, should be charged against the abutting lots “exclusive of the toAvn common.” The board also held that the petition was in compliance with the law, and was *65“sufficient in all respects.” In these circumstances, then, tbe immediate inquiry is this: Since tbe common was subject to tbe special assessment in like manner witb other property fronting tbe avenue, and since it appears from tbe petition, tbe clerk’s certificate, and tbe resolution of tbe board of commissioners that no assessment was made against tbe common, shall tbe defendant be denied tbe right of contesting tbe alleged validity of tbe assessment against bis property on tbe ground that tbe determination of tbe governing body is final and cpnelusive ?

An affirmative answer would imply tbe possibility of subordinating tbe requirements of tbe law to “tbe determination of tbe governing body” of a municipality, and of appropriating tbe defendant’s property without authority of law. It is hardly conceivable that tbe Legislature, in prescribing tbe power of such governing body, contemplated or intended such a result.

From what has been said, it follows as a logical conclusion, we think, that the assessment charged against the defendant’s property is invalid. While a slight informality of procedure, or a failure to observe a provision which is merely directory, will not generally affect the validity of an assessment, it is nevertheless true that any substantial and material departure from the essential requirements of the law under which the improvement is made will render an assessment therefor invalid. the proceeding discloses a material defect in that the signers of the petition, although a majority in number of the owners, do not represent a majority of all the lineal feet of frontage of the lands abutting upon the improved avenue, as required by the statute. the charge against the defendant’s property, therefore, cannot be sustained. 5 McQuillin on Mun. Corp., sec. 2111, and note; 4 Dillon on Mun. Corp., sec. 1402, and note; Ziegler v. Hopkins, 117 U. S., 683; Ogden v. Armstrong, 168 U. S., 236; Holland v. Baltimore, 11 Md., 186; Greensboro v. McAdoo, 112 N. C., 359; Charlotte v. Brown, 165 N. C., 438.

Tbe judgment is