Norfolk City v. Ellis

• Decision Date: 30 April 1875
• Citation: Norfolk City v. Ellis, 67 Va. 224 (1875)
• Parties: NORFOLK CITY v. ELLIS.
• Court: Virginia Supreme Court

67 Va. 224

NORFOLK CITY v. ELLIS.

Supreme Court of Appeals of Virginia.

April 30, 1875

The City council of Norfolk has authority under the charter of the city and the constitution of Virginia, to assess the expense, or a part of the expense, of paving a street upon the owners of the property on the street in the ratio of the front foot of their lots facing on the street.

This was an action of assumpsit in the Corporation court of the city of Norfolk, brought by W. H. C. Ellis against the city of Norfolk, to recover the sum of $874.11, which he paid under protest, as the amount assessed upon a lot on Wood street in the city, owned by the said Ellis, for the paving of said street.The parties agreed the facts, and dispensing with a jury, submitted the whole case to the decision of the court.

By the charter of the city the councils of the city of Norfolk have " the power to close, extend, widen, narrow, lay out graduate, improve and otherwise alter streets and public alleys in said city, and have them properly lighted and kept in good order," & c. " And for the execution of their powers and duties, they may raise, annually by taxes and assessments in said city, such sums of money as they shall deem necessary to defray the expenses of the same, and in such manner as they shall deem expedient, in accordance with the constitution and laws of this state and of the United States: provided, however, that they shall impose no tax on the bonds of the city."

An ordinance of the city for paving and repairing streets, after providing a fund of $150,000 for this purpose, to be raised by the issue of the bonds of the city, provides how the work shall be given out to contract, when it is ordered to be done by the councils; and by §5, provides--That when any unpaved street is to be graded, curbed and paved, three-fourths only of the cost shall be assessed upon the lands or lots lying thereon.Such assessment shall be collected by the city collector as other taxes are collected.And by § 7, it is provided--That when a street is ordered to be paved, the city surveyor shall furnish to the street committee a plan of the street, the squares, the number of front feet of each lot and the names of the owners thereof.From this plan the bills of assessment shall be made out by the commissioner of the revenue and delivered by him to the collector.

The streets recently paved under the ordinances were not ordered to be paved until all the conditions precedent to such ordering were complied with, as specified in the charter; and Wood street was ordered to be paved upon a petition of a majority of the owners of real estate fronting on said street, and by a unanimous vote of the councils in joint meeting.The plaintiff Ellis owned a lot fronting two hundred and forty feet on Wood street, which was unimproved, and before the street was paved was assessed at $3000.The assessment on the lot was at so much per front foot amounting in the whole to $1165.48; and after deducting the one-fourth to be paid by the city, left the amount chargeable to the plaintiff $874.11.And the ratio of assessments on all the lots on the street whether improved or unimproved was the same; viz: between four and five dollars the front foot.This tax the plaintiff paid under protest and compulsion.

It appears that the lots on the corners of the streets are assessed for the pavement of both streets, so that a lot fronting twenty or forty feet on one street which was paved heretofore, and running on another street from one hundred to two hundred feet, is assessed on the whole length of the lot and one case is stated, in which one person owns several lots on Queen street recently paved, valued in the aggregate before the improvement at $9000, one of which lots fronts on Queen street two hundred feet, and has an average depth of three feet six inches.This lot was assessed before the improvement at $150, and its proportion for the expense of paving the street is not less than $1000.

Until the passage of the present ordinance the whole cost of the paving the streets of the city had been assessed upon the owners of real estate lying on said streets per front foot.

Upon the hearing of the cause, the court below rendered a judgment in favor of the plaintiff for the said sum of $874.11, with interest from the date of the judgment and costs.And thereupon the City of Norfolk applied to a judge of this court for a writ of error and supersedeas; which was awarded.

W B. Martin, for the appellant.

W. H. C. Ellis, for the appellee.

STAPLES J.

It has been held by this court that the provision in the constitution of 1851, declaring that " taxation shall be equal and uniform throughout the commonwealth, and all property, other than slaves, shall be taxed in proportion to its value," relates to taxation by the general assembly for purposes of state revenue; and does not apply to taxes and levies by counties and corporations for local purposes.Gilkeson v. The Frederick Justices,13 Gratt. 577.

The present constitution however includes counties and corporate bodies also; so that the prohibition, which was formerly confined to the state government, must now equally apply to corporate bodies; but in either case the prohibition relates to taxation for purposes of revenue, and not to those assessments made by municipal authorities, upon the owners of real estate within the corporate limits, for local improvements.These assessments are not founded upon any idea of revenue, but upon the theory of benefits conferred by such improvements upon the adjacent lots.It is regarded as a system of equivalents.It imposes the tax according to the maxim, that he who receives the benefit ought to bear the burthen; and it aims to exact from the party assessed no more than his just share of that burthen according to an equitable rule of apportionment.

Whether these assessments are to be regarded as an exercise of the taxing power or the police power, or whether they are based exclusively upon the idea of compensation received in the form of benefits conferred upon the owner's property, is a question not necessary now to be discussed or decided.It is sufficient to say, that the right to make such assessments, unless prohibited by some constitutional provision, is almost universally conceded.Concurring with Judge Anderson that the power unquestionably exists; that it is vested in the corporate authorities of Norfolk, I am led to a conclusion the very reverse of that which he reaches.His view seems to be, that as the owner of real estate in a city is liable to an assessment only by reason of benefits conferred, all levies in excess of such benefits are unconstitutional and void.But who is to determine whether such excess does in fact exist?What tribunal is to settle the question?Are the courts to take cognizance of such cases, enter into a critical examination of the assessments, strike a balance of benefit on one side and burden on the other, and sustain or annul as the one or the other may seem to prevail?In a large majority of such cases, in the very nature of things, the courts cannot have before them the proper material for such investigations.I do not mean to say, that cases may not occur of such gross oppression and injustice as to require judicial interference: but they are exceptional, and must be decided as they arise upon the particular circumstances attending them, rather than upon any general rule or principle.My understanding has always been, that if the mode of assessment is regular and constitutional, if the power to levy the tax exists in that class of cases, the courts are not authorized to interfere merely because they may consider the taxation impolitic, or even unjust and oppressive.In such case the remedy is in the legislative and not in the judicial department.Cases, without number, might be cited in support of this principle.People v. Lawrence, 41 New YorkR. 137;Providence Bank v. Billings, 4 Peters'R. 514;Langhorne & Scott v. Robinson,20 Gratt. 661; where the authorities are reviewed by Judge Joynes.

In the case before us it appears that the city council of Norfolk, for the purpose of grading and paving its streets, has adopted the system of assessment by the front foot on lots adjacent to the street to be improved.The same system has been adopted in other towns and cities in the United States, and has been generally recognized by the courts as constitutional and valid.It is sustained by the highest courts in New York, Ohio, Michigan, Wisconsin, Missouri, California, Kansas, Connecticut and Pennsylvania.See Sedgwick on Stat. and Const. Law 502-'3-'5; and cases cited in Cooley's Const. Limitation 507.

I admit there are some opposing cases; but neither in number, learning, or weight of authority, do they bear any comparison with the decisions which affirm the validity of this mode of assessment.Upon reason and principles of natural justice, it may be sustained as apportioning the burden according to the benefit, as nearly, perhaps, as any other that can be adopted.That it may in some instances operate harshly, and even oppressively, is conceded; but this is true of all forms of taxation.

It has been well said by a learned jurist, " taxation is sometimes regulated by one principle, sometimes by another and very often it is apportioned without reference to locality, or to the tax payer's ability to contribute, or to any proportion between the burden and the benefit."The citizen who is required to pay a tax of one thousand dollars for the support of free schools, to which he sends no children, while his neighbor, who has a half dozen to be educated, contributes nothing, may well complain of inequality of burdens.A county levy for the construction of a...