Adams v. City Of Roanoke

• Decision Date: 19 November 1903
• Citation: 45 S.E. 881,102 Va. 53
• Parties: ADAMS. v. CITY OF ROANOKE.
• Court: Virginia Supreme Court

45 S.E. 881

102 Va. 53

ADAMS.

v.CITY OF ROANOKE.

Supreme Court of Appeals of Virginia.

Nov. 19, 1903.

LOCAL, ASSESSMENT—HEARING—BENEFIT TO PROPERTY—DUE PROCESS OF LAW.

1. Where a city council provided for a hearing before its committee on sewers for and against a proposed improvement, and a hearing after the improvement was ordered, to receive objections to the assessments against parcels of property, from the determination of which an appeal might be taken to the city court, and a complaining property owner was represented at both hearings, he had such a hearing as is required by Act March 4, 1896 (Acts 1895-96, p. 799, c. 729), and Act March 7, 1900 (Acts 1899-1900, p. 1147), providing for local assessments in cities.

2. A statute authorizing local assessments, which provides for reasonable notice and opportunity to appear and contest the legality, justice, and correctness of an assessment before it is finally determined upon, affords "due process of law, " though notice and a hearing are not given at each step in the proceedings.

v2. See Constitutional Law, vol. 10, Cent. Dig. 873.

3. The principle of Act March 4, 1896 (Acts 1895-96. p. 799, c. 729), and Act March 7, 1900 (Acts 1899-1900, p. 1147), providing for local assessments in cities, that the property on which special assessments are imposed should be such as is specially benefited by the improvement, is not violated by the adoption of the frontage rule, in the absence of a showing, at a hearing given for the purpose, that a property owner is not benefited to the extent of an assessment against him, though he be assessed foi、r more than adjoining property valued for taxation higher than his.

Error to Hustings Court of Roanoke. Proceeding by W. O. Adams to contest a local assessment on his property by the cityof Roanoke. From a judgment of the hustings court affirming the decision of the committee on sewers of the city, W. O. Adams brings error. Affirmed.

Scott & Staples, for plaintiff in error.

C. B. Moomaw, for defendant in error.

CARDWELL, J. This is a writ of error to a judgment of the hustings court of the city of Roanoke, rendered on an appeal from the decision of the committee on sewers of the common council of the city, charging upon the property of plaintiff in error an assessment to meet the cost of constructing a' sewer system in the section of the city in which the property so charged is located.

The questions to be considered may be thus stated: First. Have the requirements of the statutes authorizing the assessment been complied with? and, second, if the statutes have been complied with, do they provide for "due process of law, " as required by the fourteenth amendment to the Constitution of the United States?

With reference to the first question, the petition for this writ of error says: "It must be confessed, except as regards the right of making a front-foot assessment, * * * there is no substantial departure from the statute, unless it be in the failure to give petitioner a hearing before the council at the time it settled the basis of apportionment."

No good whatever would result from a review of the numerous authorities cited for and. against the proposition that the Legislature may authorize an assessment for local improvements on the property it determines is benefited thereby, according to its frontage, without any judicial inquiry as to the value of the property, the extent of the benefits accruing to it, or the basis of the apportionment, and that the courts are only justified in interfering when there has been an abuse of the law, since the record does not justify a contention that the law under which the assessment is made authorizes such an assessment, or that such an assessment has in fact been made. Suffice it to say that there is reputable authority for as well as against that proposition.

The issues presented here arise out of the proceeding had under the act of March 7, 1900 (Acts 1899-1900, p. 1147), and it is therefore with reference to that act that the case is to be considered.

It is entitled "An act to provide for local assessments in cities and towns, " and provides: (1) That the council "shall fix and determine the limits of the district within which the real estate will in its opinion be benefited" by the proposed public improvement. (2) That ten days' notice shall be given to the property owners to appear before the council, or a committee thereof, at a time and place named, and be heard for or against such public improvement (3) After that hearing the council shall decide whether or not the improvement shall be made; how much of the cost thereof shall be paid by the city, and how much by the property owners; upon what principles that part chargeable to the property owners shall be apportioned between them; designate an officer, who shall apportion that part chargeable to the property owners between them upon the principles prescribed by the council, and report the plan and apportionment to the council. (4) The report of the officer so designated, after lying 20 days in bis office or that of the clerk of the council for inspection by any person whose property it is proposed to charge with any part of the cost of the improvement, is to be referred to designated committee, who shall, after 10 days' notice to the owner of each parcel of such property of the existence of the report and of the amount it is proposed to charge against the property of such owner, give a hearing to such owner, at which he may show cause against the proposed assessment, and after such hearing the committee is to indorse its judgment on the notice in each case and return the same to the council. (5) Any one objecting to the judgment of the committee may appeal therefrom to the corporation court, who shall hear all legal evidence adduced, and ascertain therefrom the amount proper to be apportioned to the property of the party appealing and to be a lien thereon.

By resolution adopted March 11, 1899, the committee of the council on sewers were directed, at such time as they might fix, to give a hearing to the owners of the property abutting and bounding on certain streets and avenues mentioned, being section 25 of the general sewer system of the city, on the "question of constructing sewers for the accommodation of their respective properties." The resolution further provided that the committee should give to the several property owners bounding and abutting on certain named streets and avenues, or benefited by the proposed improvement, notice of the time and place of the hearing, which notice should be served at least 10 days before the hearing, and summon the property owners to appear before the committee, to be heard for or against the proposed improvement; that the hearing should not be had until a plan of the proposed, improvement had been made by the city engineer, with an estimate of the cost and the amount to be paid by each abutting owner, such plan and estimate to be filed in the clerk's office of the council, and be produced before the committee on sewers at the hearing; that after the hearing the committee should report to the council, with recommendation whether or not the improvement should be made, and what proportion of the costs, if any, should be paid by the owners of the real estate included within the boundaries stated or benefited by such improvement, and what proportion should be paid out of the city treasury. The committee on sewers, after 10 days' no-tice of the time and place served upon the several property owners within the district described in the above-mentioned resolution, on May 3, 1899, at the office of the clerk of the council, gave them the hearing authorized and required by the resolution, and it is admitted that plaintiff in error had notice of and was represented at that hearing; the only complaint made with respect to it being that the estimate of the costs of the improvement, showing the amount which would be assessed against each property owner, that the city engineer was directed to supply, was not furnished. It appears, however, that although the statute does not attach any such condition to the hearing given by the committee on May 3, 1899, the city engineer did, in fact, make a report to the committee on sewers of an estimate of the costs of the proposed improvement, and this report was on file in the office of the clerk of the council when the hearing in that office was given, on May 3, 1899; the estimate then made of the costs of the improvement proposed being the only estimate practicable until the actual costs of the improvement were ascertained. But, if that were not the case, we do not think that an omission to comply with that requirement of the resolution under which the committee was acting would be sufficient to render void the assessment which followed against the property of plaintiff in error, and for reasons that will presently be given.

The hearing of the parties having been given on May 3, 1899, the committee reported to the council that the property located in the district described in the resolution of March 11, 1899 (including that of plaintiff in error), would be benefited by the proposed improvement, and that it ought to be made, and recommended the adoption of a resolution to that effect, and for the payment of one half of its costs by the owners of the property bounding and abutting on the line of the proposed sewers, or benefited by it, and for the payment of the remaining half out of the city treasury, the one half of the costs to be assessed against the property owners, to be apportioned among them as the council might determine after the completion of the improvement, which report was spread upon the minutes of the proceedings of the council. The committee further recommended the adoption of a resolution directing the city engineer to advertise for bids for making the proposed improvement, in accordance with the plans and specifications of that officer on file in the...