Schank v. City Of Asheville

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: Schank v. City Of Asheville, 154 N.C. 40, 69 S.E. 681 (N.C. 1910)
• Decision Date: 14 December 1910
• Parties: SCHANK et al. v. CITY OF ASHEVILLE et al.

69 S.E. 681

154 N.C. 40

SCHANK et al.

v.CITY OF ASHEVILLE et al.

Supreme Court of North Carolina.

Dec. 14, 1910.

1. Municipal Corporations (§ 450^*)—Public Improvements—Assessments.

The Legislature has the constitutional authority to authorize a city to improve its streets by creating each street a taxing district and authorizing special assessments on the abutting owners to pay for such improvements.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 450.*]

2. Municipal Corporations (§ 292*)—Public Improvements and Assessments—Order of Assessment—Petition for Improvements—Conclusiveness.

Upon a petition filed with the mayor and board of aldermen purporting to be signed by the owners of a majority of front feet on a certain street, the mayor and board, under Priv. Laws 1901, c. 100, amended by Priv. Laws 1905, cc. 283, 401, passed an order that such street should be paved. The abutting owners were given the notice as required by statute. Held, that an owner who did not appeal could not later claim an assessment levied thereunder to be void upon the ground that the petition had not been actually signed by a majority; that being a prerequisite, but not a jurisdictional requirement.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 768-772; Dec. Dig. § 292.*]

3. Municipal Corporations (§ 325*)—Public Improvements—Assessment—Order of Improvements—Effect as an Adjudication. An order to improve a street, which must as a prerequisite have a petition signed by a majority of the abutting owners, is in effect a finding of the truth of such petition, and is conclusive as to that fact, unless appealed from.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 847-849; Dec. Dig. § 325.*!

Appeal from Superior Court, Buncombe County; Justice, Judge.

Suit by R. H. Schank and another against the City of Asheville and others for an injunction to restrain the sale of property for a street paving assessment. From an order restraining sale, defendants appeal. Action dismissed.

S. G. Bernard, for appellants.

Prank Carter, H. C. Chedester, and Wells & Swain, for appellees.

CLARK, C. J. On August 4, 1905, the mayor and board of aldermen of Asheville adopted an order that Southside avenue, from South Main street to Depot street, be paved with bitulithic composition. This the aldermen were authorized to do by Priv. Laws 1901, c. 100, amended by chapters 283 and 401, Priv. Laws 1905. As foundation for the order there was a petition filed with the mayor and board of aldermen, purporting to represent the owners of a majority of the front feet abutting on said avenue, as required by the statute. Notice was given prior to said order in the manner required by said statute. There was no exception to nor appeal from said order, as the statute authorized, and the city proceeded to have the avenue paved. No objection was made till after the work was completed, and not till February 26, 1910, when two of the owners of land abutting upon said avenue instituted this proceeding to restrain the defendant from advertising and selling their property for the assessments which had theretofore been levied for their pro rata part of the cost of said improvements.

The constitutional authority of the Legislature to authorize a city to improve its streets by creating each street, or a portion thereof, into a taxing district and requiring a prescribed portion of the costs of the pavingof said street (here one-third) to be assessed upon the property abutting on each side of tbe street, according to the frontage of each lot, has been too often decided by this court to be open to debate. Indeed, the exact point was passed upon in Raleigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330, and has been reaffirmed in Hilliard v. Asheville, 118 N. C. 845, 24 S. E. 738, Alvey v. Asheville, 146 N. C. 395, 59 S. E. 999, and other cases. This statute provided methods whereby each lot owner might contest the assessment, and might except and appeal.

The plaintiff practically rests his contention upon the provision in the statute that the board of aldermen should not make an order for the improvement of a street in the part of the city where this street lies "unless and until" a majority of the abutting landowners in front feet upon said street shall petition the board of aldermen to make such order. The plaintiffs, who are two of said abutting landowners, now allege that in fact a majority of the landowners in front feet upon said street did not join in the petition, because that one of them signed as agent, and was not an owner himself of the property, they allege, and they obtained a restraining order to prevent the sale of their property for the assessment laid upon it until that matter can be investigated.

The plaintiffs made no objection to the order, of which notice was given in the manner required by the statute, and took no appeal, though they saw the work being put in process of execution. For five years they have stood silent, until after the work has been completed. Now...