Asberry v. City Of Roanoke.1

• Citation: 22 S.E. 360,91 Va. 562
• Parties: ASBERRY et al. v. CITY OF ROANOKE.1
• Decision Date: 27 June 1895
• Court: Supreme Court of Virginia

22 S.E. 360

91 Va. 562

ASBERRY et al.

v.CITY OF ROANOKE.¹

Supreme Court of Appeals of Virginia.

June 27, 1895.

Constitutional Law — Assessments for Public Improvements—Personal Debt.

Section 7 of chapter 3 of the charter of Roanoke, in so far as it authorizes the creation of a personal debt against property holders for the amount of assessments for local improvements, and which debt may be enforced by bill in chancery, suit, or motion, is unconstitutional.

Error to circuit court of city of Roanoke; Dupuy, Judge.

A. S. Asberry and others bring error to a judgment against them and In favor of the city of Roanoke. Reversed.

Scott & Staples, Phlegar & Johnson, and W. W. Berkeley, for plaintiffs in error.

W. A. Glasgow, Jr., for defendant in error.

CARDWELL, J. This was a motion under the statute, in the court below, for a judgment against A. S. Asberry and J. W. Coon, plaintiffs in error here, for the sum of $101.75; being the amount assessed against them as owners of a lot of land situated on Campbell avenue, in the city of Roanoke, on account of the costs of paving Campbell avenue. Judgment was awarded the city of Roanoke, in the trial court, for the amount claimed in the notice, and to this judgment a writ of error was awarded the defendants by this court.

As this action, as we have seen, was brought to recover a personal judgment against the defendants for the amount assessed against them, or their property on Campbell avenue, and not to enforce a lien on the property by virtue of the assessment, the sole question upon which the case is to be disposed of here is whether or not section 7 of chapter 3 of the charter of Roanoke city, which authorizes the creation of a personal debt against the defendants for the amount assessed against them on account of the cost of paving Campbell avenue in front of their property, and which lien or debt may, under said section of the charter, be enforced by a bill in chancery, suit, or motion, is a constitutional and valid act of legislation.

Section 7, c. 3, of the charter of the city of Roanoke, is as follows: "Whenever any new street shall be laid out, or street paved or graded, culverts or sewers built, or any other public improvements whatsoever made, the council shall determine what portion, if any, of the expense thereof shall be paid out of the city treasury, and what portion, if any, by the owners of the real estate benefited thereby; and for whatever amount the council shall decide shall be paid by the owners of the real estate bounding and abutting on said street, or benefited by any such improvements, an assessment shall be levied by thecouncil by the front foot bounding or abutting or benefited as aforesaid, which said assessment shall be payable within ninety days from the date it is made, and shall be a lien upon the property upon which it is assessed from the date of such assessment, and shall also be a personal debt of the owner of the property, which lien and debt may be enforced by a bill in chancery, suit, or motion; * * * "

The question of personal liability for local assessments is a new one in Virginia. In fact, it has been raised and discussed in but few of the states of the Union, and is considered as not well settled even in those states. 24 Am. & Eng. Enc. Law, 77.

It is argued by the learned counsel for the city of Roanoke that by inference to be drawn from the opinion of this court, by Lewis, P., in Green v. Ward, 82 Va. 324, the court has determined that, where the charter of a city plainly permits the assessment for local improvements to be made a personal charge upon the abutting lot owner, the authority to do so cannot be questioned, but we do not understand that such an inference can be rightly drawn from that decision. The only language used by the learned judge, in the opinion delivered in that case, tending to warrant this inference, is, "In no case, therefore, can such an assessment be held a personal charge, except where plainly permitted by legislative authority, and there is no such authority in the present case"; that is to say, that the charter of the city of Alexandria, under which the case then under consideration arose, did not confer the authority. But just preceding the language of Lewis, P., quoted, he clearly indicates that such a provision In the charter would have met with little favor with ...