Southern Ry. Co. v. City of Richmond

• Decision Date: 08 April 1940
• Docket Number: Record No. 2145.
• Parties: SOUTHERN RAILWAY COMPANY, A CORPORATION v. CITY OF RICHMOND.
• Court: Virginia Supreme Court

Page 308

175 Va. 308

SOUTHERN RAILWAY COMPANY, A CORPORATION v. CITY OF RICHMOND.

Record No. 2145.

Supreme Court of Virginia, Richmond.

April 8, 1940.

Present, All the Justices.

1. SPECIAL ASSESSMENTS — Sewers — May Be Imposed Only for Construction or Use — Case at Bar. — The instant case was a suit to recover for an alleged illegal assessment of sewer taxes by a municipality on vacant unimproved lots. Section 170 of the Constitution and section 3067 of the Code of 1936 give municipalities the right to levy taxes or assessments for either the construction or for the use of sewers. The charter of the city granted the specific powers with the limitations thereon found in the Constitution.

Held: That the language of the constitutional mandate, as well as the language of the specific grant of power to the city in its charter, clearly limited the right of the city to make the special assessment in one of two ways; that is, the assessment might be imposed for the construction of the sewer, or the assessment might be imposed for the use of the sewer after construction. Regardless of the method chosen, the amount of the assessment must not exceed the value of the peculiar benefits resulting to abutting landowners.

2. SPECIAL ASSESSMENTS — Power of Municipalities — Must Be Exercised in Accordance with Authority Conferred. — Municipalities have no inherent power to levy assessments for local improvements, and it is, therefore, necessary to the validity of their action that they exercise their power in strict accordance with the authority conferred.

3. SPECIAL ASSESSMENTS — Power of Municipalities — Presumptions and Burden of Proof. — With respect to the power of municipalities to levy assessments for local improvements, the presumption is that the State has granted in clear and unmistakable terms all it has intended to grant; and whatsoever authority the municipal officers assume to exercise, they must be able to show the warrant for in the words of the grant.

4. CONSTITUTIONAL LAW — Construction of Constitutions — Words to Be Understood in Popular Sense. — Words of a Constitution are to be understood in the sense in which they are popularly employed, unless the context or the very nature of the subject indicates otherwise.

5. WORDS AND PHRASES — "Use." — The word "use" has the following primary definitions: "Act of employing anything or state of being employed; application; employment; as, the use of a pen; his machines are in use; the act of using, employment, as of means or material for a purpose, application to an end, particularly a good or useful end, as use for steam and navigation." "Privilege of use" is a right to use. "Use" is the exercise of the privilege.

6. SPECIAL ASSESSMENTS — Sewers — Section 170 of the Constitution of 1902 — "Use of Sewers" Means "Actual Use" — Case at Bar. — The instant case was a suit to recover for an alleged illegal assessment of sewer taxes by a municipality on vacant unimproved lots. Section 170 of the Constitution and section 3067 of the Code of 1936 givr municipalities the right to levy taxes or assessments for either the construction or for the use of sewers. The charter of the city granted the specific powers with the limitations thereon found in the Constitution. An ordinance of the City, instead of imposing special assessments for "the use of sewers," imposed them for the "privilege of using" the sewers, "whether such sewers be actually used or not."

Held: That the popular meaning of the term "for the use of sewers," and the context of this language in the Constitution, compelled the conclusion that the language means "use in fact" or "actual use" as contradistinguished from "privilege of using" or "available for use."

7. SPECIAL ASSESSMENTS — Sewers — Estoppel to Question Validity of Ordinance — Levy and Payment of Taxes for Several Years — Case at Bar. — The instant case was a suit to recover for an alleged illegal assessment of sewer taxes by a municipality on vacant unimproved lots. Section 170 of the Constitution and section 3067 of the Code of 1936 give municipalities the right to levy taxes or assessments for either the construction or for the use of sewers. The charter of the city granted the specific powers with the limitations thereon found in the Constitution. An ordinance of the city, instead of imposing the special assessments for "the use of sewers," imposed them for the "privilege of using" the sewers, "whether such sewers be actually used or not." The city contended that the tax should be upheld because an ordinance similar to the one under consideration had been in force for a period of thirty-seven years and had remained unchallenged until the filing of the petition in the instant case. But the lots in question had not been assessed consistently under the ordinance.

Held: That even if the city had consistently levied the taxes and the owner had paid them, the owner would not be estopped to raise the constitutionality of the levy as to current taxes.

8. CONSTITUTIONAL LAW — Validity of Statute — Statute Which Has Been on Books for Many Years. — While a court should hesitate to declare a statute unconstitutional until clearly satisfied of its invalidity, and where it has been on the statute books for many years the hesitation should be all the greater, yet, if such an act is plainly in conflict with the organic law of the state, old age cannot give it life, and, when the issue of its constitutionality is properly raised, it must be declared void.

9. SPECIAL ASSESSMENTS — Sewers — Section 170 of the Constitution of 1902 — Continuous Use Not Required — Case at Bar. — The instant case was a suit to recover for an alleged illegal assessment of sewer taxes by a municipality on vacant unimproved lots. Section 170 of the Constitution and section 3067 of the Code of 1936 give municipalities the right to levy taxes or assessments for either the construction or for the use of sewers. The charter of the city granted the specific powers with the limitations thereon found in the Constitution. An ordinance of the city, instead of imposing the special assessments for "the use of sewers," imposed them for the "privilege of using" the sewers, "whether such sewers be actually used or not." The city contended that for practical reasons the ordinance should be upheld, since construing the language of the Constitution to mean actual use would compel the city to ascertain the facts in each case every time an assessment was made, and the changing conditions would make it impossible for the city to be sure its assessments would be sustained.

Held: That there was no merit in the contention of the city, since "actual use" or "use in fact" does not require a continuous use.

10. SPECIAL ASSESSMENTS — Sewers — Power of General Assembly to Authorize or Ratify Assessment in Conflict with Constitution — Case at Bar. — The instant case was a suit to recover for an alleged illegal assessment of sewer taxes by a municipality on vacant unimproved lots. Section 170 of the Constitution and section 3067 of the Code of 1936 give municipalities the right to levy taxes or assessments for either the construction or for the use of sewers. The charter of the city granted the specific powers with the limitations thereon found in the Constitution. An ordinance passed by the city imposed a special assessment for the "privilege of using" sewers "whether such sewers be actually used or not." While the case was pending in the trial court, the city obtained an amendment to its charter expressly authorizing it to levy a special assessment for the privilege of using sewers, and the amendment attempted to ratify, validate and confirm all prior assessments made by the city.

Held: That the General Assembly could neither authorize nor ratify an assessment made in conflict with section 170 of the Constitution or in conflict with existing statutes.

11. STATUTES — Curative Acts — Effectual to Do Only What Could Have Been Done by Prospective Law. — A curative act can only be effectual to do that which the Legislature would have been competent to provide for and require to be done by a law prospective in its operation.

12. MUNICIPAL CORPORATIONS — Taxation — May Proceed Only According to Statute — Curative Statute in Contravention of Constitutional Rights. — A town, proceeding to assess taxes, is exercising powers of the state to it delegated. It may proceed only according to statute directions, and within limits by statute prescribed. And it may not avail itself of a curative statute in contravention of constitutional rights.

Error to a judgment of the Hustings Court of the city of Richmond. Hon. John L. Ingram, judge presiding.

The opinion states the case.

Thomas B. Gay and Stephen H. Simes, for the plaintiff in error.

Horace H. Edwards and Henry R. Miller, Jr., for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

The Southern Railway Company filed its petitions alleging that it had been illegally assessed with sewer taxes for the years 1934, 1935, 1936 and 1937 on three vacant unimproved lots owned by it in the city of Richmond. From an adverse judgment the landowner obtained this writ of error.

The decision of the case turns upon the meaning of the pertinent provisions of section 170 of the Virginia Constitution, which read: "No city or town or county * * * shall impose any tax or assessment upon abutting landowners for street or other public improvements, except * * * for either the construction, or for the use of sewers; and the same when imposed, shall not be in excess of the peculiar benefits resulting therefrom to such abutting landowners."

Code, section 3067, is the general statute granting to municipalities the same power with the same limitation to make special assessments upon abutting landowners for the local improvements enumerated.

Under the constitutional provisions the General Assembly delegated to the city of Richmond the specific powers with...