City Of Raleigh v. Peace

• Decision Date: 16 February 1892
• Court: North Carolina Supreme Court
• Parties: City of Raleigh. v. Peace.

14 S.E. 521

110 N.C. 32

City of Raleigh.

v.Peace.

Supreme Court of North Carolina.

Feb. 16, 1892.

Assessments for Local Improvements—Constitutional Law — Legislative Powers —Uniformity—Fhont-Foot Rule — Taking Property without Compensation.

1. Laws authorizing the levy of local or special assessments are a valid exercise of the taxing power. Merrimon, C. J., and Davis, J., dissenting.

2. Local or special assessments, though governed by the principle of uniformity, are not taxes, within the restraints imposed by Const, art. 5, § 3, providing that "laws shall be passed taxing, by a uniform rule, all moneys, credits, investments, * * » and also all real and personal property, according to its true value in money." Merrimon, C. J., and Davis, J., dissenting.

3. The legislature or its duly-authorized instrumentalities are primarily the judges of the validity of special assessments imposed by them, and their action will be disturbed by the court only when it clearly appears that authority waswanting, or that the prescribed method of assessment contravenes some constitutional principle. Merrimon, C. J., and Davis, J., dissenting.

i. Const, art. 8, § 4, requiring the legislature to provide for the incorporation of cities, and "to restrict their power of taxation, assessment, borrowing money, " etc., does not apply to special assessments for local improvements. Merrimon, C. J., and Davis, J., dissenting.

5. An act of the legislature, or an ordinance passed under its authority, relative to special assessments, need not state that the contemplated improvement is necessary, or that the assessments are made according to the benefits conferred, since such facts are implied. Merrimon, C. J., and Davis, J., dissenting.

6. Assessments for local improvements may properly be levied in proportion to the frontage of abutting property. Merrimon, C. J., and Davis, j., dissenting.

7. Under Code, § 3803, relative to towns and cities, providing that the commissioners or aldermen may cause necessary improvements to be made, and "apportion them equally among the inhabitants by assessments, " a city authorized by its charter to charge abutting owners with the cost of improvements may apportion them according to the front-foot rule, though the charter is silent as to the method of apportionment. Merrimon, C. J., and Davis, J., dissenting.

8. Since assessments for local improvements are justifiable only on the theory that the land receives benefits equal to the assessments, a provision of a city charter that personal judgments for such assessments may be taken against the abutting owners—thus allowing the assessments to be enforced against other property, not benefited—violates the prohibition against taking property without compensation.

Appeal from superior court, Wake county; Winston, Judge.

Action by the city of Raleigh against J. A. Peace to recover a special assessment. Judgment for plaintiff. Defendant appeals. Reversed.

Strong & Stronach, for appellants.

J.N. Holding, for appellee.

Shepherd, J. While we are of the opinion, for the reasons hereinafter stated, that the particular judgment rendered in this action cannot be sustained, yet, as the validity of the ordinance under which the assessment is made is drawn in question, and as it is of great importance that it should be passed upon by this court, we deem it our duty to consider this and such other points that are presented in the record as may be necessary to an intelligent disposition of the present and perhaps other cases which may arise upon the subject.

1. The authority of thele?islature, either directly or through its local instrumentalities, to exercise the taxing power in the form of local or special assessments, has been so firmly established by judicial decision in this and other states of the Union that it can hardly, at this late day, be considered an open question; but, as it seems to be controverted by the argument of counsel, it may not be improper to state in a general way the principle upon which it is founded, as well as to refer to some of the multitude of authorities In its support.

Judge Cooley, in his work on Taxation, (page 606,) says that special assessments "are made upon the assumption that a portion of the community is to be specially and peculiarly benefited, in the en hancement of the value of property peculiarly situated, as regards a contemplated expenditure of public funds; and, fn addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it." "The rationale of the system, " says Mr. Bur roughs, "is that the purpose is a public one, which justifies the levy of a tax, but the benefit of the improvement is not only local, but also specific, benefiting particularized property; and therefore the tax may be levied on this property which receives a benefit over and above other property in the state. * * * An assessment for improvements is not considered as a burden, but as an equivalent or compensa-tion for the enhanced value which the property derives from the improvement." Burroughs, Tnx'n, 460. Judge Dillon (2 Dill. Mun. Corp. § 752n) quotes with entire approval the language of Slidei.l, 0. J., in Municipality No. 2 v. Dunn, 10 La. Ann. 57. The chief justice says: " I must repeat my conviction that the system of paying for local improvements wholly out of the general treasury is inequitable, and will result in great extravagance, abuse, and injustice. I think the system of making particular localities, which are specially benefited, bear a special portion of the burden, is safer, and more just to the citizens at large, by whose united contributions the city treasury is supplied. What is taken out of the treasury is out of the pockets of ail the proprietors." Speaking of special assessments, the supreme court of Missouri, in Lockwood v. St. Louis, 24 Mo. 20, said that "their intrinsic justice strikes every one. If an improvement is to be made, the benefit of which is local, it is but just that the property benefited should bear the burden. While the few ought not to be taxed for the benefit of the whole, the whole ought not to be taxed for the few. * * * General taxation for a mere local purpose is unjust. It burdens those who are not benefited, and benefits those who are exempt from the burden."

These assessments are not to be confounded with the exercise of the right of eminent domain, (Cooley, Const. Lim. *498; 2 Dill. Mun. Corp. § 738; Lewis, Em. Dom. §4;) and it is also to he observed that while they are taxes in a general sense, in that the authority to levy them must be derived from the legislature, they are nevertheless not to be considered as taxes falling within the restraints imposed by article 5, § 3, of the constitution, ¹ although the principle of uniformity governs both. Shuford v. Commissioners, 86 N. U. 552; Cain v. Commissioners, Id. 8; Busbee v. Commissioners, 93 N. C.143; Cooley, Const. Lim. *498; 2 Dill. Mun. Corp. § 755 etseq. The principle deducible from the foregoing quotations finds a striking illustration in the facts of the present case. The districtimproved by the pavement embraces only a part of one street; and, while the improvement may add very greatly to the convenience and comfort of all of the citizens, it at the same time confers upon the abutting real property an enhanced pecuniary value, out of all proportion to the benefits inuring to the public at large. Would it be just that all should be taxed alike, and that the owner of property in a remote part of the city be compelled to contribute as much towards the particular improvement as those whose lands are thus peculiarly benefited? This would savor very much of the "forced contributions" of the olden time, which are so generally denounced as obnoxious to the principles of free government; and the bare statement of the proposition shocks all sense of justice, and furnishes its own refutation. It is, therefore, but pre-eminently just, as well as the duty of the lawmaking power, to provide for an equitable adjustment of such burdens in proportion to the benefits conferred; and it is for the very purpose, as we have seen, of accomplishing this end, and of preventing so great a perversion of the taxing power, that these local or special assessments are almost universally resorted to. It is true that the power to levy such assessments is sometimes abused, and that some of the methods adopted have been judicially condemned, but the existence of the power itself is as well established as it is possible by judicial decision to establish any legal principle whatever. Wilmington v. Yopp, 71 N. C. 76; Cain v. Commissioners, supra; Busbee v. Commissioners, supra; 2 Dill. Mun. Corp. § 761; Cooley, Const. Lim. 506; I Hare, Amer. Const. Law, 301; Elliott, Roads & S. 370.

2. We will now consider whether the power of the legislature was properly exercised in the case before us. It is a general rule, everywhere conceded, that the discretion of the legislature in levying taxes, when exercised within constitutional limits, is conclusive; but in respect to special assessments the principle is questioned, and it is urged that these not being strictly taxes, and not subject as such to the restraints imposed by the constitution, but being founded solely, as some authors say, upon the principle of betterments of the property to the extent of the improvement, the courts should not surrender the power to review an arbitrary decision of the legislature, either as to the necessity for, or the beneficial character of, a particular improvement, or the manner in which the benefits are to be ascertained and assessed. That the judicial power has been successfully invoked in some instances will appear from the cases of Seely v. Pittsburgh, 82 Pa. St. 360; Washington Avenue, 69 Pa. St. 352; and other decisions cited in the notes to section 753 of volume 2 of Dillon on Municipal Corporations. RurriN, J.,...