Green v. Ward

• Decision Date: 16 September 1886
• Citation: 82 Va. 324
• Parties: GREEN v. WARD AND ALS.
• Court: Virginia Supreme Court

82 Va. 324

GREEN v. WARD AND ALS.

Supreme Court of Appeals of Virginia.

September 16, 1886

Error to judgment of circuit court of city of Alexandria, rendered March 21st, 1885, on a motion in which John W. Green was plaintiff, and William H. Ward and John T. Hite were defendants. There was judgment for the defendants; and the plaintiff excepted and obtained a writ of error and supersedeas from a judge of this court.

Opinion states the case.

S F. Beach, for the plaintiff in error.

K Kemper and Charles E. Stuart, for the defendants in error.

OPINION

LEWIS P.

This was a motion in the court below for an award of execution on a forthcoming bond. The plaintiff, who is the plaintiff in error here, was the owner of certain unimproved lots abutting on Columbus street, in the city of Alexandria. In 1874 he was personally assessed by the city with a special tax of $558.88 for paving, grading, and curbing a section of the said street. This tax remaining unpaid, the city took steps to collect it, and levied on certain rents due the plaintiff on account of other real estate, situate on another street, in a different part of the city. Subsequently, a distress warrant was obtained by the plaintiff for the rent which had thus been levied on. The tenant executed a forthcoming bond, upon which the motion was founded. The defence was that the rent had been levied on by the city as aforesaid. The circuit court sustained the defence, and gave judgment for the defendants, the obligors in the bond, whereupon the case on a writ of error was brought to this court.

The single question in the case is as to the validity of the assessment in question. Its validity is denied by the plaintiff on the ground, among others, that the tax, if valid at all, is chargeable, not against him personally, but only on his property abutting on Columbus street. And we are of opinion that this position is well taken.

It is an established principle that the power of taxation is not possessed by a municipal corporation, unless plainly conferred by the law-making power of the State. And it is equally well settled that if, when conferred, the mode in which it shall be exercised is prescribed, that mode must be strictly pursued.

The question before us must, therefore, be determined with reference to the powers conferred upon the city by its charter.

The fourteenth section gives the city council power to pave, make and repair the streets and highways, and in general terms empowers it to raise money, by taxes, for municipal purposes. By the thirty-third section, however, specific provision is made for paving and curbing the streets as follows: " The city council shall have power to specially tax a lot adjoining a street on which paving is done or curbstone put down (whether on the sidewalk or carriageway), not exceeding two-thirds of the expense of the curbstone or paving on that half of the street opposite such lot." Acts 1870-71 page 132; Acts 1876-77, page 158.

Here, it will be observed, the power conferred is, not to levy a tax chargeable against the owners of property personally, but to tax the lots adjoining a street in which paving is done or curbstone is put down. No other plan of special assessment to meet the expense of such improvements is prescribed or authorized. And since the power to tax is derived from the charter alone, it follows that the power must be exercised, if at all, in strict conformity with the provisions of the charter.

" In the construction of any grant of power to tax made by the State to one of its municipalities, the rule which is accepted by all the authorities is, that it should be with strictness. The reasonable presumption is held to be, that the State has granted in clear and unmistakable terms all it has intended to grant at all; and whatsoever authority the municipal officers assume to exercise, they must be able to show the warrant for in the words of the grant. There is no inherent power in the municipalities to levy taxes; they can tax only as the State in its wisdom has thought proper to permit, and if the State has erred in the direction of strictness, the legislature alone can correct the evil." Cooley on Taxation, chapter 9, page 209.

Counsel for the city,...