City of Memphis v. Hill

• Decision Date: 27 January 1919
• Citation: City of Memphis v. Hill, 208 S.W. 613, 141 Tenn. 250 (Tenn. 1919)
• Parties: CITY OF MEMPHIS v. HILL.
• Court: Tennessee Supreme Court

208 S.W. 613

141 Tenn. 250

CITY OF MEMPHIS v. HILL.

Supreme Court of Tennessee.

January 27, 1919

Certiorari to Court of Civil Appeals.

Petition for certiorari by Mary Martin Hill against the City of Memphis to review proceedings assessing property for street improvement.Judgment of the circuit court dismissing petition was reversed upon appeal to the Court of Civil Appeals, and the case is before the Supreme Court upon petition by the city for writ of certiorari.Judgment of Court of Civil Appeals affirmed.

BACHMAN J.

Mrs Mary Martin Hill, the respondent herein, is the owner of six lots of land, aggregating some 600 feet frontage, abutting on North and South Third street, between Adams and Union avenues, in the city of Memphis.In August, 1912, by appropriate action of the city authorities, Third street between Adams and Union avenues was created an improvement district, and for the improvements then made the property abutting thereon was assessed at the rate of $5.36 per front foot, Mrs. Hill paying as her proportionate share the sum of $3,255.44.North and South Third street extends southwardly from Chelsea avenue to Adams avenue and there terminates.Rayburn boulevard extends northwardly from Calhoun avenue to Beale avenue, there ending at a point some 1,100 feet from and almost directly south of the southern terminus of North and South Third street.There exists no street through the 1,100 feet separating North and South Third street and Rayburn boulevard.Desiring to extend Third street southwardly beyond Union avenue and through the intervening property to connect with Rayburn boulevard, thus making of Third street a continuous thoroughfare, the city of Memphis in September, 1917, finally passed improvement ordinance No 374, which created an improvement district, embracing North and South Third street between Adams and Union avenues, the new street to be opened between Union and Beale avenues and Rayburn boulevard between Beale and Calhoun avenues.It was not contemplated that there should be any physical improvement of that part of North and South Third street between Adams and Union avenues, upon which the property of respondent abuts, the same being in good, serviceable condition, but to defray the expense of opening up the new street contemplated, acquiring the necessary property removing buildings, drainage, and paving, an assessment was ordered on all abutting property within the limits of the prescribed district, the maximum rate per front foot estimated to be $6.79.Before final confirmation of the ordinance authorizing the improvements Mrs. Hill, by counsel, appeared before the board of commissioners and protested the same, challenging its legality upon grounds dealing with the right of the city to make the proposed assessments upon her property, no question being made as to the correctness of the procedure in the passage of the ordinance.Her protest having been overruled, the proceedings of the board of commissioners were reviewed in the circuit court upon petition for certiorari, where the petition was dismissed, the judgment of the circuit judge being accompanied by a finding of law and fact which succinctly states the controversy.

In addition to the facts heretofore stated, it was found by the circuit judge that the council had due authority to pass the ordinance in question; that in providing for the assessments to be made thereunder it had approximated as nearly as possible the property obviously benefited; that, while other property not included in the district would be benefited, the proposed improvement would materially enhance the value of all property within the limits of the district; and that the enhancement in value of each particular piece of abutting property would materially exceed the amount of the assessment ordered upon it.

Upon appeal to the Court of Civil Appeals the judgment of the circuit court was reversed and the case is before us upon petition by the city of Memphis for writs of certiorari.

In the able and exhaustive briefs of counsel there are presented fundamental questions going to the validity of special assessments for local benefits upon which there now exists little divergence of authority, and it is not our purpose to discuss those principles of special assessments underlying and necessary to the validity of such assessments generally, but which, in our view of this case, are not involved in its determination.

The authority of the Legislature to empower the city of Memphis to proceed with the extension and improvement of its streets, and to provide for the cost thereof by assessments on the property benefited, is not open to question.That the Legislature could in its discretion have adopted one or more of several modes of establishing the proper correlation between such assessments and the benefits conferred is well settled.

In the determination of the casewe are not concerned with what powers might have been conferred upon the city of Memphis authorizing the levying of proportionate assessments for the improvements of its streets but rather what mode of procedure for the equitable distribution of such burdens has actually been designated as proper and suitable.Following the determination of this question, it is to be seen whether or not the proceedings herein considered come within the delegated method.

In adopting a plan or scheme by which the city of Memphis should proceed in its local improvements, with attendant assessments for the benefits accruing, it is to be assumed that the Legislature was aware of those methods of special assessments constantly adopted and generally in operation throughout the states of the Union.Certainly it was aware of two predominant plans, viz. by the front-foot method, and assessments in proportion to benefits had, both recognized as securing, under differing conditions, the most approximate measurement of assessments and benefits.The authority to levy the special assessments complained of upon the property of respondent, if found to exist, is contained in chapter 341 of the Acts of 1907, as amended by chapter 109 of the Acts of 1909, and chapter 244 of the Private Acts of 1913, the several acts together constituting the abutting property law for the city of Memphis.

The purpose and authority of the original act (chapter 341 of the Acts of 1907), as expressed in its caption, is as follows:

"An act to empower municipalities having a population exceeding 100,000 inhabitants by the federal census of 1900 or any subsequent federal census to open, extend, widen, grade, pave, macadamize, or otherwise improve streets, alleys, and highways; to levy and collect special taxes and local contributions on real estate abutting the same; to authorize the issuance of certificates of indebtedness to pay for the same; to provide for the redemption of such certificates; and to authorize the creation of improvement districts."

Having in mind that the purpose of the original act, with its amendments, is to provide for a species of taxation, and that, in accord with the recognized rules of construction, its intendments must be strictly construed against the power and in favor of the citizen affected (Memphis v. Bing,94 Tenn. 644, 30 S.W. 745;Chattanooga v. Raulston,117 Tenn. 569, 97 S.W. 456), we are of opinion that in the levying of special assessments the city is authorized to proceed solely against property abutting the street or part of the street to be improved, and that the assessments are to be made by the front-foot rule.An examination of the language and terms constantly recurring throughout the acts admits of no other conclusion.

To empower municipalities to open or otherwise improve streets; to levy and collect special taxes * * * on real estate abutting the same--so reads the caption of the original act.In each and every instance throughout the several provisions of the acts, where it is sought to designate or describe the property to be specially assessed, the language is practically identical.

Section 1 of the Acts of 1907 provided that upon a petition signed by the owner or owners of 60 per cent. of the frontage of the lots or parcels of land abutting on such portion of any street, highway, or alley, as set out in the petition, within the corporate limits of such municipality, the legislative body was authorized to provide for the improvement of such street, and the making of special levies or assessments upon the lands abutting on such street, highway, or alley to be improved.

It is provided in section 3 that before any work shall be done or public improvement authorized, the cost of which is proposed to be assessed against the property abutting on said street, highway, or alley to be improved, it is the duty of the legislative body to adopt an ordinance stating the general character of improvement, and to name the location and terminal points thereof, and the streets, alleys, or other highways or parts thereof along which it is to be constructed.

The amendatory acts of 1909 and 1913 in no wise enlarge the purview of the original act, in so far as the property to be assessed or mode of assessment is...