City Of Norfolk v. Chamberlain

• Decision Date: 15 December 1892
• Citation: 89 Va. 196,16 S.E. 730
• Court: Virginia Supreme Court
• Parties: CITY OF NORFOLK. v. CHAMBERLAIN.

16 S.E. 730

89 Va. 196

CITY OF NORFOLK.

v.CHAMBERLAIN.

Supreme Court Of Appeals of Virginia.

Dec. 15, 1892.

Municipal Improvements — Taxation —Assessment op Benefits—Constitutional Law.

1. The city charter of Norfolk provides that, whenever any street shall be laid out or other improvements made, the council may determine what portion, if any, of the expense shall be paid from the public treasury, and what portion by local assessment of the property benefited thereby, or it may order the whole expense assessed on the property; but that no such improvement shall be made until first requested by a majority of the property owners to be assessed, or unless the council shall by a majority vote declare the improvement expedient, give public notice of such resolution, and thereafter by a like vote order the improvement made. Other charter provisions, corresponding to Code 1873, c. 56, §§ 6-10, prescribe the mode of condemning land when the same cannot be acquired by agreement, and provide that the commissioners appointed shall estimate a just compensation for the land taken, and the damage to the residue "beyond the peculiar benefits to be derived in respect to such residue." Held, that the city cannot, after having accepted and paid the estimate of such commissioners, assess a tax against the residue for peculiar benefits or betterments.

2. Const, art. 10, § 1, declaring that "taxation, whether imposed by the state, county, or corporate bodies, shall be equal and uniform, " and that "no one species of property shall he taxed higher than any other species of equal value, " forbids any legislation authorizing local assessments on the part of a city for public improvements. People v. Mayor, etc., of Brooklyn, 4 N. Y. 419, disapproved.

Appeal from circuit court of city of Norfolk.

Suit by William W. Chamberlain against the city of Norfolk and L. H. Shields, collector of said city, to enjoin the collection of an assessment. Decree granting the injunction. Defendant city appeals. Affirmed.

J. F. Duncan, Borland & Willcox, and R. W. Mallet, for appellant.

Walke & Old, for appellee.

Richardson, J. This is an appeal from a decree of the circuit court of the city of Norfolk, rendered on the 25tb day of May, 1889, in the chancery suit therein then pending, wherein William W. Chamberlain was plaintiff, and the city of Norfolk and L. H. Shields, the collector of said city, were defendants. The material facts are these: In the latter part of the year 1884 the common and select councils of the city of Norfolk decided, without petition from the majority of landowners along the line, to open and extend Plume street from Granby to Bank street, 60 feet wide, which involved the widening of said street 10 feet from Granby to Concord street, and caused notice of such decision to be published in two or more newspapers in said city for 20 days. Failing to purchase or obtain by agreement from the owners along the line of said street the land necessary for widening and extending the same, the city of Norfolk, on the 12th day of January, 1885, filed a petition in the corporation court of said city, setting forth the proceedings of her said councils touching the proposed improvement, the object of which was the acquisition of the necessary land along the line of said street, and commissioners were appointed by said court for the condemnation of such land, according to the provisions of chapter 56, Code 1873, and section 22 of chapter 3 of the charter of said city. Of the landowners along the line of the proposed improvement W. W. Chamberlain was one, and he was the owner of a vacant lot on the corner of Granby and Plume streets, fronting 23 feet on Granby, and running back 39 feet to Concord street. In other words. Plume street, 50 feet wide, west of Granby street, and extending easterly across Granby street to Concord street, has been an open street since about the year 1803. Concord is a narrow street, 20 feet wide, extending east of Granby street, and about 39 feet therefrom. Thus the vacant lot owned by W. W. Chamberlain was situated on the corner of Granby and Plume streets, as the latter then existed, and had existed for a great number of years, and had a frontage of 23 feet on Granby street, and extending back 39 feet to Concord street. On the 3d day of March, 1885, the commissioners appointed as aforesaid for the condemnation of the land requisite for said improvement made their report to said corporation court, wherein, among other things, they say that of the said lot of W. W. Chamberlain about 10 feet front thereof on Granby street, running back 39 feet to Concord street, would be taken, and that, upon a view thereof, and upon such evidence as was before them, they were of opinion and ascertained that for such portion of said lot, and for the damage to the residue thereof, beyond the peculiar benefits to be derived in respect to such residue from the work to be constructed, the said Chamberlain was entitled to $1,200 as a just compensation therefor. This report was, on the 18th day of March, 1885, confirmed by said corporation court, the money awarded Chamberlain was paid into court, and by an order of said court was paid to Chamberlain, and thus the city of Norfolk acquired title to that portion of Chamberlain's lot so taken. Afterwards, in August, 1885, the committee on opening Plume street having reported that the finance committee had paid into court the amount of the damages assessed in the condemnation proceedings, with a recommendation that the councils instruct the board of street, sewer, and drain commissioners to open Plume street, as proposed, and also that said councils appoint a committee to assess the betterments to the property along the line of said street, and to return a report thereof, with the names of the owners and the amounts of said betterments, and that the amounts so assessed "be collected in the usual way, and at as early a day as possible, so as to offset the damages assessed, as interest is being paid on the money borrowed for the payment of damages;" and the committee was accordingly appointed. And on the 29th of June, 1886, this committee made Its report to the common council, and on the next day, June 30, 1886, it reported to the select council their assessments for betterments, and on those days, respec-tively, the report was adopted by said councils. By the report of said committee W. W. Chamberlain was assessed with $1,500 for betterments, or $300 more than he had received for that portion of his lot taken under the condemnation proceedings. In their order assessing the betterments the councils for the first time declared that the whole expense of widening and extending said street should be assessed against the landowners along its line; but in no previous proceeding, nor in the newspaper publication required by law, was such purpose declared or published.

In the statement of facts agreed it appears that the assessment was made according to no rule of uniformity; as, for example, by the front foot, superficial area, assessed value of the property, or otherwise; but after visiting the premises, and considering the frontage, depth, and location, the committee assessed what, in their opinion, were the benefits which would accrue to the several pieces of property against which the several assessments were made, for the purpose of reimbursing the city for the amount paid to the landowners in the proceedings for the condemnation of the land, aggregating $33,-500, which had been paid by said city, as shown by said proceedings. When the city attempted to collect the amount assessed against Chamberlain he obtained an injunction, which, upon the hearing of the cause, was, by a decree rendered therein, made perpetual, and the city of Norfolk was also ordered to refund $600 and interest, which had been paid by Chamberlain under protest. From this decree the city of Norfolk obtained an appeal and supersedeas.

L The first and main question presented for decision is, what was the effect of the condemnation proceedings had in this case in pursuance of the provisions of chapter 56 of the Code of 1873? In other words, the city of Norfolk having failed to acquire by agreement with, or by purchase from, the owners thereof the land along the line of Plume street necessary for widening and extending the same, and having been compelled, in order to acquire title to such lands, to resort to condemnation proceedings, as prescribed by chapter 56 of the Code of 1873, and having, under such proceedings, ascertained and paid to the owners, respectively, the amounts so ascertained to be just compensation for the lands taken, and for the damage to the residue thereof, beyond the peculiar benefits to be derived in respect to such residue from the work to be constructed, and having thus acquired title to such lands, including that taken from the appellee, has the said city authority, under its charter and the constitution of Virginia, to turn round and assess against the owners, for betterments to the residue of such property, an amount greatly in excess of the amounts assessed and paid to them under the condemnation proceedings as just compensation for the lands taken, and for the avowed purpose of reimbursing the city treasury for the amount paid for the land taken? After a most careful consideration of the subject, we are clear ly of opinion that the city has no authority to impose any such burden. The question, as here presented, is one of first impression in this state, and is one of vast importance. It has been repeatedly held by this court that municipal corporations have the power to make local assessments for improvements, subject, however, to the conditions precedent prescribed by their charters, and the city ordinances made in pursuance thereof. See Norfolk City v. Ellis, 26 Grat. 224; Sands v. City of Richmond, 31 Grat. 571; Davis v. City of Lynchburg, 84 Va. 861, 6 S. E. Rep. 230. These cases follow, though with...