McClester v. Town of China Grove, 196 N.C. 301 (1928)

Nov. 28, 1928 · Supreme Court of North Carolina

196 N.C. 301

S. P. McCLESTER and PATTERSON MANUFACTURING COMPANY v. THE TOWN OF CHINA GROVE.

(Filed 28 November, 1928.)

Municipal Corporations — Public Improvements — Assessments Therefor.

Where in accordance with the provisions of C. S., 2710(1), the board of aldermen grant a petition for street improvements requesting the assessment of a larger proportion of the cost of the improvements against the lots of land abutting directly thereon than is otherwise required by statute, after the confirmation of the assessment roll a subsequent board of aider-men is without power to grant a petition of the abutting landowners for a reduction of the assessment upon the ground alone that the amount of the assessments exceeded that they had originally anticipated, and a suit by other taxpayers of the town to enjoin the granting of such petition is proper. C. S., 2715, and 3 C. S., 2806(f), have no application.

Appeal by plaintiffs from Webb, Jat Chambers, Salisbury, 7 May, 1928. From RowaN.

Civil action to restrain tbe defendant from refunding or rebating to abutting property owners part of an assessment duly and regularly made for street improvements.

On 30 June, 1925, a majority of tbe owners of property abutting on Main Street in tbe town of China Grove, who represented also a majority of tbe lineal feet of frontage of tbe lands abutting on said street, duly filed a petition with tbe board of aldermen of said town, requesting that Main Street be improved, and stipulating “that in tbe event said board of aldermen shall put in said pavement as above stated, then we, tbe undersigned, agree to pay for tbe same according to our respective frontage abutting on said street.” Whereupon, on 4 August, 1925, tbe board of aldermen, after observing tbe preliminary requirements of tbe statutes, duly passed a resolution creating a local improvement district along Main Street in said town and ordered “that one hundred per centum of tbe costs of said improvements (less street intersections) be assessed upon tbe abutting property owners as provided in Article 9, chapter 56, of tbe Consolidated Statutes and acts amendatory thereof.”

Tbe assessments were properly made; no exceptions or objections were filed thereto; and no appeal was taken from tbe order confirming tbe assessment roll.

Thereafter, on 10 February, 1928, about forty of tbe owners of property abutting on Main Street who bad not paid their assessments in full, petitioned tbe new board of aldermen of said town for a reduction or rebate of 25 per cent of tbe original assessments, for tbe reason that tbe total cost of tbe improvements was more' than they bad originally anticipated. This request was granted; whereupon, plaintiffs, property owners and taxpayers in tbe town of China Grove, bring this action to prohibit the carrying out of such reduction or rebate.

A temporary restraining order was entered in tbe cause, but dissolved upon tbe return thereof, from which ruling tbe plaintiffs appeal, assigning error.

W. 11. Becherdite and Hayden Clement for plaintiffs.

JR. Lee Wright for Town of China Grove.

W. H. Woodson for abutting property owners.

Stacy, C. J.,

after stating tbe case: Tbe regularity of tbe proceeding whereby tbe local assessment district on Main Street in tbe town of China Grove was created is not attacked; in fact it is conceded.

Tbe question for decision is whether tbe new board of aldermen, under tbe circumstances disclosed by tbe record, bad tbe authority or power to grant a reduction or rebate of 25 per cent of tbe original assessments. We think not.

It is provided by C. S., 2110(1), that one-balf of tbe total cost of a street or sidewalk improvement made by a municipality, exclusive of so much of tbe cost as is incurred at street intersections and tbe share of railroads or street railways, shall be specifically assessed upon tbe lots and parcels of land abutting directly on tbe improvements, according to tbe extent of their respective frontage thereon, by an equal rate per foot of such frontage, unless, as in tbe instant case, tbe petition for such street or sidewalk improvement shall request that a larger proportion of such cost, specified in tbe petition, be assessed against tbe lots and parcels of land abutting directly on tbe improvement, in which case such larger proportion shall be so assessed, and tbe remainder of such cost, if any, shall be borne by tbe municipality at large. Here, tbe total amount of cost, required of tbe municipality, was assessed against tbe lots and parcels of land abutting directly on said improvement, in response to tbe request of tbe petition and in accordance with tbe provisions of tbe statute, hence we think tbe new board of aldermen was without authority to grant a reduction or rebate of 25 per cent of tbe original assessments, long after tbe confirmation of tbe assessment roll, there being no suggestion of any irregularity in tbe proceedings. Gallimore v. Thomasville, 191 N. C., 648, 132 S. E., 657.

True, it is provided by C. S., 2715 and 3 C. S., 2806(f) that tbe governing body of a. municipality may correct, cancel or remit any assessment made for local improvement, including interest or penalties thereon, and shall have the power, when in its judgment there is any irregularity, omission, error or lack of jurisdiction in any of tbe proceedings relating thereto, to set aside tbe whole of tbe local assessment, make a reassessment, etc., but these statutes, we apprehend, have no application to a fact situation similar to tbe one now under consideration. Gallimore v. Thomasville, supra.

There was error in dissolving tbe injunction and dismissing tbe action.-

Error.