102 Va. 53 | Va. | 1903
delivered the opinion of the court.
This is a writ of error to a judgment of the Hustings Court of the city of Roanoke, rendered on an appeal from the decision of the Committee on Sewers of the Common Council of the city, charging upon the property of plaintiff in error an assessment
The questions to he considered may he thus stated: First. Have the requirements of the statutes, authorizing the assessment, been complied with? and, second, If the statutes have been complied with, do they provide for "due process of law,” as required by the Fourteenth Amendment to the Constitution of the United States ?
With reference to the first question, the petition for this writ of error says: “It must be confessed, except as regards the right of making a front foot assessment . . . there is no substantial departure from the statute, unless it be in the failure to give petitioner a hearing before the Council at the time it settled the basis of apportionment.”
Ho good whatever would result from a review of the numerous authorities cited, for and against the proposition that the Legislature may authorize an assessment for local improvements on the property it determines is benefited thereby, according to its frontage, without any judicial inquiry as to the value of the property, the extent of the benefits accruing to it, or the basis of the apportionment, and that the courts are only justified in interfering when there has been an abuse of the law, since the record does not justify a contention that the law, under which the assessment is made, authorizes such an assessment, or that such an assessment has, in fact, been made. Suffice it to say that there is reputable authority for, as well as against, that proposition.
The issues presented here arise out of the proceeding had under the Act of March 7, 1900 (Acts of 1899-1900, p. 1117), and it is, therefore, with reference to that act that the case is to be considered.
It is entitled “An act to provide for local assessments in cities and towns,” and provides: (1) That the Council “shall fix and determine the limits of the district within which the
By resolution adopted March 11, 1899, the committee of the Council on 'Sewers, were directed, at such time as they might fix, to give a hearing to the owners of the property abutting and bounding on certain streets and avenues mentioned, being section 25 of the general sewer system of the city, on the "question of constructing sewers for the accommodation of their respective
The hearing of the parties having been given on May 3, 1899, the committee reported to the Council that the property located in the district described in the resolution of March 11, 1899 (including that of plaintiff in error) would he benefited by the proposed improvement, and that it ought to be made, and recommended the adoption of a resolution to that effect, and for the payment of one-half of its cost by the owners of the property hounding and abutting on the line of the proposed sewers, or benefited by it, and for the payment of the remaining half out of the city treasury, the one-half of the costs to be assessed against the property owners to be apportioned among them as the Council might determine after the completion of the improvement, which report was spread upon the minutes of the proceedings of the Council. The committee further recommended the adoption of a resolution, directing the City Engineer to advertise for bids for making the proposed improvement, in accordance with the plans and specifications of that officer on file in the office of the clerk of the Council.
On September 19, 1899, the Council, by resolution, after reciting the provisions of the resolution of March 11, 1899, and the proceedings thereunder, adopted the recommendations of the Committee on Streets, and provided for the construction of the proposed improvement, the costs thereof to be borne as recommended by the committee.
Pursuant to that resolution the construction of the proposed improvement was let to contract, and the work completed and
The City Engineer made up a list of the assessments it was proposed to charge against the several property owners, one hundred and twenty-nine in number, in accordance with the principles stated in the foregoing resolutions. It laid in his
It is contended for plaintiff in error, (1) That he had no hearing on the question of how much should be assessed against his property on account of the improvement, from which it follows that the statute has not been observed, or the statute is in violation of the Fourteenth Amendment to the Constitution of the Hnited States; (2) The benefits accruing from the improvement were not in proportion to the front foot of the lands assessed, and the statute did not authorize such an assessment unless the benefits were in such proportion; (3) If the statute authorized a front foot assessment where the benefits were not in like proportion, it is Unconstitutional; (4) The estimate of cost to each property owner required by the Council to be filed and produced before the committee at the first hearing, was not filed and produced as required; and (5) The cost of the assessment was not apportioned as required by the resolution of the Council.
The preliminary hearing in this case was given under the Act of March 4, 1896 (Acts of 1895-6, p. 799), and the final hearing under the Act of March 7, 1900, supra. The only difference between the two statutes is, that the latter provides
It was not contemplated that at the hearing “for and against the proposed improvement” the question as to what proportion of the costs of the improvement should be borne by each abutting landowner should be considered, but only whether or not the proposed improvement should be made at all. It was only the latter question that the committee was called upon to consider, and if their judgment was that the improvement should be made, it became their duty so to report to the Council, together with their recommendation as to the manner in which the costs should be borne, i. e., what proportion, if any, should be borne by the city, and what by the several landowners to be benefited by the improvement. Then, if the Council determined to make the improvement, the question as to how its costs were to be borne, arose, and the statute provides that no part of the costs shall be charged upon an abutting landowner until he is given a hearing, at which he can make his objections to the assessment it is proposed shall be made against his property. Preparatory to this hearing, an officer is to be designated, “who shall, when the work shall have been completed, apportion the total expense thereof accordingly (i. e., as the Council may have determined), and who shall also, upon such principles as shall be determined by ordinance or resolution of the Council, ascertain the proportionate part thereof it is proposed to assess against each parcel of such real estate, and make report thereof in writing to the Council.” . . . Sec. 2, Act March 7, 1900, supra. Then follows the final hearing that the statute requires shall be given to each person whose property it is proposed shall bear any part of the costs of the improvement.
TJpon a careful comparison of the requirements of the statute with the proceedings of the Council in making the improvement and the assessment of the amounts to be charged to each parcel of real estate abutting on or benefited by the improvement in question, it appears to us that no other conclusion can be reached than that the requirements of the statute have been in every particular observed.
The statute under which the assessment was made was intended to secure to the lot owners in the several cities and towns within the State an opportunity to appear and contest
The contentions of plaintiff in error seem to be based on the assumption that the property owner must have notice of every step of the proceedings, and more particularly that he did not have an opportunity to be heard when the Council fixed the basis upon which it was proposed to assess one-half of the costs of the improvement upon the several parcels of property benefited by the improvement.
"What this court has held in the cases just mentioned (and it is in accordance with the great weight of authority found in the text-books and in the decisions of the courts of other jurisdictions, including the Supreme Court of the United States), is that local assessments for street improvements are an exercise of the taxing power, and Article XIV. of the Amendments to the Constitution of the United States applies to such assessments, and that a statute which authorizes a local assessment to meet the costs of such improvements must provide for giving the person of whom such assessment is exacted reasonable notice and opportunity to appear and contest the legality, justice and correctness of the assessment before it is finally determined upon, otherwise it deprives such person of his property without “due process of law,” and is void.
If the law provides for the required notice to the landowner whose land it is proposed to charge with any part of the costs of the public improvement, an assessment against his property, made under it, will not be defeated if he has been given at some stage of the proceedings, a fair opportunity to be heard
In Voight v. Detroit, supra,, construing a statute very similar to ours, it is held that the Fourteenth Amendment is not violated, because the statute makes “no provision for a notice to property owners of a time and place of hearing upon either the question of fixing a taxing district or the question of the amount of the award to be spread thereon.” It was sufficient where the statute provides for a “hearing in relation to the proportion each piece of property should bear to the whole cost of the improvement, and the proper notice of this hearing had been given.”
“A rule or standard of assessment sufficient to satisfy the constitutional requirement of due process of law is furnished by Mich. Com. Laws, 1897, sec. 3406, which, as interpreted
Some of the authorities go to the extent of saying that to require notice of every step taken towards the construction of a local public improvement, in order to charge upon a land owner whose property is benefited thereby an assessment to meet the costs of the improvement would be an intolerable burden upon the authorities of the municipality in which such improvement is made. The statute here under consideration with reference to notice of this hearing to be given to property owners affected by a proposed assessment to meet the costs of a local improvement, provides: “And said notice shall cite such person to appear, at a time and place designated, before a committee to be appointed for that purpose, .... and show cause against the proposed assessment.” And, after providing for an appeal from the decision of the committee on this hearing, the statute provides: “Every such appeal shall be tried by the court or judge thereof in vacation in a summary way, without pleadings in writing and without a jury, in term time or in vacation, upon reasonable notice to the adverse party. All legal evidence produced by either party shall be heard, whether the same was produced or not before the committee from whose decision the appeal is taken.”
At the hearing thus provided for, the committee is not, as counsel for plaintiff in error contends, restricted to a mere consideration of the accuracy of the measurements and calculations of the City Engineer, but the whole question of the amount of benefit derived by the owner of the real estate affected, and the right to make objection to the proposed assessment thereon, is open to consideration, even to showing that no benefit whatever to his property was occasioned by the improvement, and
The statute was intended to provide the requisites of “due process of law” in making assessments for local improvements, as defined by this court, and it is true that the statute and the decisions referred to recognize that the right to make special assessments to meet the costs of local public improvements rests upon the underlying principle that the property upon which they are imposed is peculiarly benefited by the improvement, and, therefore, the owners do not, in fact, pay anything in excels of what they receive by reason of such improvement; but it does not necessarily appear that the principle has been departed from by the fact that one-half of the cost of the improvement is apportioned among the property owners benefited, according to their frontage. Nor is the principle violated merely by the fact that, by the apportionment, plaintiff in error’s lot is assessed with a fraction more than an adjoining property valued for taxation at a larger sum than his property. With what the plaintiff in error is concerned, as we have remarked, is the assessment or charge against his property, and not whether another piece of property similarly situated is assessed with' too little or too much. He owns a lot of fifty-foot frontage, valued at $500.00, including buildings, and it is assessed with $13.13 on account of the sewer system constructed in the section in which his property is located, and upon which his property fronts. It may be that in the apportionment of one-half of the cost of the improvement among property owners having lots.in that section and benefited by the improvement, errors have crept in; but this, if it were the case, would not warrant the conclusion that the property of plaintiff in error is assessed without reference to special benefits.
At the hearing given him by the Committee on Sewers, March 15, 1901, plaintiff in error filed objections founded, not upon
That plaintiff in error had the notice required by the statute, and that the statute is not in conflict with the Fourteenth Amendment to the Constitution, as interpreted by this and other courts, we have already shown. The record discloses no evidence introduced by him to show that his property was not benefited at all by the improvement, or that the assessment against it is in excess of the special benefits derived from the improvement, while quite a number of witnesses were introduced on behalf of the city, and all concur in the statement that the assessment against the property is not in excess of the benefits received.
Upon the whole case we are of opinion that the judgment of the Hustings Court of the city of Roanoke should be affirmed.
Affirmed,