Heirs v. City Council Of Alexandria

• Decision Date: 13 February 1896
• Citation: 23 S.E. 909,92 Va. 561
• Parties: VlOLETT'S HEIRS et al. v. CITY COUNCIL OF ALEXANDRIA.
• Court: Virginia Supreme Court

23 S.E. 909

92 Va. 561

VlOLETT'S HEIRS et al.

v.CITY COUNCIL OF ALEXANDRIA.

Supreme Court of Appeals of Virginia.

Feb. 13, 1896.

Constitutional Law — Due Process of Law — Assessment for Street Improvements— Powers of Municipal Corporations.

1. The enforcement of a local assessment for improvements to a street, where the person from whom the tax is exacted has had no opportunity to appear and contest the assessment before it is finally determined upon, and a lien fixed on his property, is the taking of the property without due process of law; and a statute authorizing such procedure, without requiring notice and opportunity to be heard to be given the property owner, is in conflict with the fourteenth amendment to the federal constitution.

2. The provisions of the city charter of Alexandria (section 33, as amended by Laws 1888), authorizing assessments to be made on property for street improvements, without providing for notice or hearing to the owners, are unconstitutional and void.

3. Const, art. 10, § 1, providing that taxation, whether by the state, counties, or corporate bodies, shall be equal and uniform, and that all property shall be taxed in proportion to its value, does not prohibit laws authorizing special assessments on property benefited for the cost of local improvements on streets; such power of taxation being upheld, however, solely on the ground of peculiar benefits to the property taxed.

4. Under the city charter of Alexandria (section 33, as amended), providing for assessments for street improvements on "real estate benefited thereby, " an ordinance fixing a uniform assessment per front foot on all abutting real estate, for improvements made, is an unwarranted assumption of benefits, not authorized by the statute.

Appeal from corporation court of Alexandria.

Bill by the city council of Alexandria against the heirs of Robert G. Violett and others to enforce the lien of a special tax assessed for street improvements. Decree for plaintiff, and defendants appeal. Reversed.

A. W. Armstrong, for appellants.

Saml. G. Brent and E. B. Taylor, for appellee.

CARDWELL, J. The thirty-third section of the charter of the city of Alexandria, as amended by an act of the legislature approved March 1, 1888, provides that, "whenever any street shall be laid out or extended or any existing street graded, paved, or re-paved, or culvert or sewer built, or curbing put down, two-thirds of the expense thereof, shall be paid by the owners of the real estate benefitted thereby. Whenever any sidewalk shall be laid, the whole expense thereof shall be paid by the owners of the real estate benefitted thereby." The city council of Alexandria, by an ordinance approved May 12, 1886, provided that, "whenever paving, graveling, or other improvements of the street shall be ordered to be done by the city council, whether of the sidewalk or carriage way, that it shall be the duty of the superintendent of police immediately upon the completion of the same to return to the clerk of the common council a statement of the total expense thereof with a list of the proprietors of the ground in front of which said paving, graveling or other improvements shall have been done or curbing put down, showing the extent of the front ground of every such proprietor, and including the half of any joint alley running into the street paved, graveled, or otherwise improved, or upon which curbs have been put down, which statement shall be filed and preserved by the said clerk, who shall also forthwith make out and deliver to the proper collector of taxes for collection according to law bills against every such proprietor for two-thirds of an amount which shall bear the same ratio to the cost of all the work done on that half of the street on which his lot fronts as the front of the proprietor's ground bears to the front of all the lots on the same side of and binding on that portion of the said street so paved, graveled, or otherwise improved. And the like proceedings and privileges shall be had by said collector In regard to such bills as in regardto bills for other taxes, assessments, or charges."

By virtue of the aforesaid thirty-third section of the charter, the city council of Alexandria passed the following ordinance:

"Be it ordained by the city council of Alexandria, Va,, that the committee on streets are hereby authorized and directed to have the curbing set, gutters paved, and a six-foot brick sidewalk put down on both sides of Alfred street from the south line of Duke street to the north line of Wilkes street, and the said committee on streets shall advertise for ten days in some newspaper published In the city of Alexandria, for proposals to do said work, and shall enter into contract with the lowest responsible bidder for said work, and require of the person or persons contracting to do said work or furnishing the material therefor, to give bonds in the penalty of one thousand dollars with surety or sureties to be approved by said committee, conditioned for the faithful performance of said contract.

"Be it further ordained, that an assessment shall be levied upon the property binding on said street as described in this ordinance, to wit: Two-thirds of the cost of such guttering and curbing to be, paid by the owners of the real estate fronting on said street, and the whole of the cost of putting down said brick sidewalk to be paid by the owners of the real estate on said street. The committee on streets are authorized to employ a competent engineer to superintend said work at a cost not to exceed five dollars ($5.00) a day."

Pursuant to this ordinance the curbing was set, gutters paved, and a six-foot brick sidewalk put down on both sides of Alfred street, from the south line of Duke street to the north line of Wilkes street, as provided for in the ordinance. The total cost of this work amounted to $1,989.36, and this was apportioned according to frontage among the owners of the lands abutting on Alfred street, as to two-thirds of the costs of curbing and paving the gutters, and as to the whole of the costs of the sidewalks; the city of Alexandria paying one-third of the cost of curbing and paving gutters. Of this frontage the heirs of Robert G. Violett, who are the appellants here, owned 353 feet 2 inches, extending back with that width 123 feet 5 inches, and were assessed with the sum of $396.03, as the proportion of the total costs of the improvements to Alfred street to be borne by their property abutting on that street; this sum including two-thirds of the costs of curbing and paving the gutters, and the entire cost of the sidewalk, and apportioned according to frontage. On the 29th of March, 1895, the city council of Alexandria filed its bill in the corporation court of the city of Alexandria, against appellants, to enforce the lien claimed by the complainant on appellant's property on Alfred street, for the amount assessed against the property, as stated. The defendants demurred to and answered this bill. The answer admitted that the work was done as set out in the bill, but denied that the lot or ground on which complainant claimed a lien had been benefited by the improvements to Alfred street, and denied that complainant had a lien on the lot or ground as claimed. Upon the hearing of the cause, on the bill and exhibits therewith, and the demurrer and answer thereto, the corporation court of Alexandria overruled the demurrer, and decreed a sale of the property, to be made by commissioners appointed, unless the defendants paid to the complainant, the city council of Alexandria, within 30 days, the amount claimed in the bill and the costs of this suit. Prom this decree, an appeal and supersedeas was awarded by a judge of this court.

The facts in the case are few, and need not be considered, as they are, in the main, not controverted; but the grounds upon which appellants deny the validity of the claim asserted by appellee are as follows: (1) The ordinance under which the claim arises is contrary to the fourteenth amendment to the constitution of the United States, which declares that no state shall "deprive any person of life, liberty, or property without due process of law." (2) The charter and ordinances of the city of Alexandria are in conflict with section 1, art. 10 of the constitution of Virginia, in which it is provided: "Section 1. Taxation, except as hereinafter provided, whether imposed by the state, county, or corporate bodies, shall be equal and uniform, and all property, both real and personal, shall be taxed in proportion to its value, to be ascertained as prescribed by law. No one species of property from which a tax may be collected shall be taxed higher than any other species of property of equal value." (3) The city council of Alexandria did not have the authority, under the provision of the thirty-third section of the charter, to pass the ordinances set forth in the bill of complaint; and said ordinances are in conflict with the charter, and null and void.

The first question to be considered may be stated in this form: Can an assessment for local improvement be exacted by a municipal corporation until the person of whom It Is exacted shall have had opportunity to appear and contest the legality, justice, and correctness of the proposed assessment? It will be observed that the section of the charter of Alexandria, and the ordinance under which the controversy arises, quoted in full above, do not provide for any notice to the owners of the lots abutting on Alfred street which gave them the opportunity to be heard before their property was assessed to meet the costs of the proposed improvements to the street. The earnest contention of counsel for appellee is that the fourteenth amendment to the constitution of the Unit-ed States does not apply to local assessments for improvements, but relates principally to the exercise of the right of eminent domain; while, on the other hand, it has been argued in the courts of some...