Hilliard v. City of Asheville

• Decision Date: 19 May 1896
• Parties: HILLIARD et al. v. CITY OF ASHEVILLE.
• Court: North Carolina Supreme Court

24 S.E. 738

118 N.C. 845

HILLIARD et al. v. CITY OF ASHEVILLE.

Supreme Court of North Carolina

May 19, 1896

Appeal from superior court, Buncombe county; Robinson, Judge.

Bill by W. E. Hilliard and others against the city of Asheville to enjoin the collection of assessments for a street improvement. From a judgment for plaintiffs, defendant appeals. Reversed.

Plaintiffs contended that the act under which defendant was proceeding to collect certain special assessments was unconstitutional because it violates Const. N.C. art. 7, § 9, requiring all taxes to be uniform, in that the rule of uniformity is not observed, the abutting land receives no benefit over and above that of citizens generally, and because "there is a want of power, and the method adopted for the assessments of the benefits is so clearly inequitable as to offend some constitutional principle," viz. the principle "that no person can be deprived of his property without just compensation and due process of law." Id. art 1, § 17; Const. U.S. Amend. 14, § 1. It also violates Const. N.C. art. 5, § 3, requiring a "uniform rule for taxing real estate according to its true value in money." It also violates the fourteenth amendment to the constitution of the United States (section 1), in that no remedy is provided for relief under the act unless by admitting and tendering some part of the assessment claimed to be due.

An action cannot be maintained to enjoin the collection of assessments for street improvements, payable in annual installments, since plaintiff may make the annual payment and have an action at law to recover it back, especially where the city charter prescribes a special method by which the validity and regularity of such assessments can be contested.

Julius C. Martin and W. W. Jones, for appellant.

Jas. H. Merrimon, Moore & Moore, and John P. Arthur, for appellees.

CLARK J.

The principal points in this case are decided in Raleigh v Peace, 110 N.C. 32, 14 S.E. 521, and adversely to the plaintiffs. Indeed, chapter 135, Acts 1891 (the charter of Asheville), is less open to objection than the act construed in Raleigh v. Peace. It makes each street or portion of a street improved a taxing district (Cooley, Const. Lim. [6th Ed.] 624), by requiring the cost of the total improvement on each street or portion of a street improved to be ascertained, and one-third thereof assessed upon the property abutting on each side of the street, proportioned according to the "frontage" of each owner, and provides means whereby each property owner may contest his assessment by proceedings begun before the board of aldermen, with the right of appeal. The act is uniform in the method of assessment. The will of the legislature is clearly expressed, and the courts have no power to interfere unless an act is plainly unconstitutional. If the unconstitutionality of an act is not beyond reasonable doubt, the courts will uphold it. King v. Railroad Co., 66 N.C. 277. It is not a question in any wise of eminent domain, or taking private property for public use (White v. People, 94 Ill. 604); and there is due process of law, as ample notice of the assessment, with opportunity to be heard, is given the property holder (Davidson v. New Orleans, 96 U.S. 97). While other modes of assessment are valid, that of assessing by the front foot is not only sustained by the numerous cases cited in Raleigh v. Peace, supra, and numerous other cases, among them Railroad Co. v. City of Joliet (Ill.) 39 N.E. 1077, City of McKeesport v. Busch (Pa.) 31 A. 49, and cases cited in Cooley, Tax'n, 644; but the "frontage" rule is essentially equitable. By that rule, the owner of unimproved property, who has contributed nothing to the prosperity of the city, but who is benefited by all...