City Of Norfolk v. Young

• Decision Date: 18 January 1900
• Citation: 97 Va. 728,34 S.E. 886
• Parties: CITY OF NORFOLK. v. YOUNG et al.
• Court: Virginia Supreme Court

34 S.E. 886

97 Va. 728

CITY OF NORFOLK.

v.YOUNG et al.

Supreme Court of Appeals of Virginia.

Jan. 18, 1900.

municipal CORPORATIONS—PUBLIC improvement—ASSESSMENT—NOTICE—CONSTITUTIONAL LAW.

The charter of the city of Norfolk (Acts 1883-84, p. 38, § 25) provides that the expense for public improvements shall not be defrayed by property owners unless a majority of all the members of each council shall declare the improvement expedient, and give public notice of such resolution in two or more newspapers for 20 days, and shall thereafter determine that the improvement shall be made. Held, that assessments thereunder were void, as not "due process of law, " since there was no provision giving the person assessed an opportunity to appear and contest the legality of the assessment

Appeal from circuit court of city of Norfolk.

Proceedings between the city of Norfolk and one Young and others. From a decree in favor of said Young and others, the city appeals. Affirmed.

W. H. Taylor, for appellant.

Borland & Willcox, for appellees.

BUCHANAN, J. It was held in the case of Violett v. City of Alexandria, 92 Va. 561, 23 S. E. 909. 31 L. R. A. 382, and may now be regarded as the settled law of this state, that local assessments by municipal corporations for street improvements are an exercise of the taxing power of the state, that article 14 of the amendments to the constitution of the United States applies to such assessments, and that a law which authorizes them, without giving to the person of whom such assessments are exacted reasonable notice and opportunity to appear and contest the legality, justice, and correctness of the assessment before it is finally determined upon, deprives such person of his property without due process of law, and is therefore void. It was further held that "due process of law" requires that a person shall have reasonable notice, and a reasonable opportunity to be heard before an impartial tribunal, beforeany final order can be made affecting his rights of property, and that such notice and opportunity must be provided for in the laws under which the assessment is made. Heth v. City of Radford, 96 Va. 272, 31 S. E. 8.

The local assessment complained of in this case, and whose constitutionality is denied, was made under the twenty-fifth section of the charter of the city of Norfolk, which provides that: "Whenever any street shall be laid out, a street graded or paved, a culvert built, or any other public improvement whatsoever made, the city councils may determine what portion, if any, of the expense thereof ought to be paid from the public treasury, and what portion by the owners of real estate benefited, or may order and direct that the whole expense be assessed upon the owners of real estate benefited thereby. But no public improvement shall be made to be defrayed, in whole or in part, by a local assessment, until first requested by a petition signed by a majority of the owners of property to be assessed for such improvement, or unless the councils shall by a vote of a majority of all the members elected to each council, declare the said improvement to be expedient; and shall furthermore give public notice of such resolution in two or more newspapers published in said city for twenty days, and shall thereafter by a like majority vote, order and determine that the said improvement shall be made." Acts 1883-84, p. 38.

That section limits the manner in which local assessments can be made. It can only be done upon the petition of a majority of the owners of property to be assessed for the improvement, or by a resolution, passed by a majority vote of all the members of each council, that it is expedient to make the improvement. This resolution of expediency must be published for 20 days in two or more newspapers published in the city; and after such publication has been made the councils, by a like majority vote, can determine that the improvement shall be made. The assessment in this case was made under the...