63 S.E. 1061 | N.C. | 1909
The action was brought by the plaintiff against the defendant for the purpose of having a lien declared against the lands of the defendant, situated on Queen Street, in Kinston, N.C. and referred to in the complaint, and for the purpose of having the same condemned to be sold to pay the assessment made against said land by the board of aldermen of the city of Kinston, for the proportionate part of the cost of paving the roadway and sidewalk of Queen Street, in said city, as authorized by chapter 338, Private Laws 1905, and by the ordinances, *243 "A," "B," "C," and "D," enacted by said board of aldermen pursuant to said act, which ordinances are attached to and made a part of the complaint.
It was agreed that under and by authority of said private act the said board of aldermen resolved to pave and did pave that portion of Queen Street lying and being between the Atlantic and North Carolina Railroad, where it crosses said Queen Street, and Bright Street, the length of said street thus paved being 2,329.2 lineal feet; that the defendant owns a lot of land on said portion of said Queen Street with a frontage abutting thereon of 110 lineal feet; that the entire cost of paving the roadway of said portion of Queen Street, hereafter referred to as the taxing district, was $30 (254.31), and that the cost per lineal foot was $12.98, and one-sixth of the cost per lineal foot was $2.16 1/3, and that one-sixth of the entire cost of paving that (297) portion of said Queen Street on which said lot of land abuts was $237.97. It was further agreed that the taxing district contained 8,121.41 square yards of sidewalk paving, and that the said pavement cost $11,015.50, and each square yard of pavement cost $1.429, and two-thirds of the cost of each square yard of pavement is 95 1/4 cents; that there are 220.37 square yards of sidewalk pavement on which said lot of land abuts, and two-thirds of the cost of paving that part of the said sidewalk on which said lot abuts is $209.90. It was further agreed that the said board of aldermen did not give the defendant notice of the making of said assessment until after it was made, and the defendant had no opportunity of being heard until the assessment was made, and then notice, both of the assessment and the time when the same would become due, was caused to be served upon the defendant, who refused to pay the same. The defendant moved to nonsuit the plaintiff, for the reason that the assessment was made without giving the defendant an opportunity to be heard, which was the taking of property without due process of law. Motion denied. Defendant excepts. Exception 1.
The defendant testified as follows: That the said lot was situated on the corner of Queen and Bright streets, one block south of the courthouse, and was at the terminus of the taxing district; that on the opposite western corner Dr. John A. Pollock resided, and that Miss Tiffany West owned a residence on the southwestern corner and resided therein; that the southern corner was occupied by negroes, and that the buildings were unsightly; that the lot was narrow, as a part of the original lot had been cut off and a residence fronting on Bright Street had been erected thereon; that the lot assessed is situated in the part of the city where the property is of less value than any other on that part of the street improved. It was valued at $1,000. The assessment *244 is one-fourth of what the property cost. The property above the courthouse is valued ten times more, according to frontage, than the lot in question. It is unimproved and does not bear any revenue at all. It is 110 feet long on Queen Street and 35 feet deep, and is the terminus of the improvement.
(298) The following issues were submitted by the court to the jury: 1. "Is the defendant's lot so situated and located that any assessment charged against it should not be measured by the frontage rule?
2. "What amount, if any, is the plaintiff entitled to have charged and assessed as a lien against the property of the defendant described in the complaint?" Answer: "Four hundred and forty-seven dollars and forty-six cents."
The court held that no evidence had been submitted that was sufficient to change the frontage rule in this case, and charged the jury that if they believed all the evidence they should answer the second issue "Four hundred and forty-seven dollars and forty-six cents," and this issue was so answered. The court rendered the judgment on the verdict, declaring the amount assessed a lien on the lot in question, and directing a sale pursuant to the statute, and defendant excepted and appealed.
The statute under which the assessment was made and this action instituted provides that the assessment shall be recovered by action, and that in any action to recover the same the owner of the property shall have the right to deny the whole or any part of the amount claimed to be due by the city, and to plead any irregularity in reference to the assessment or any fact relied upon to question the legality of the assessment; and the issues raised shall be tried and the cause disposed of according to law and the course and practice of the court. And in Kinston v. Loftin,
This intimation of the right of the court to interfere, under certain circumstances, for the protection of the property owner has been sanctioned and approved by the United States Supreme Court in the case ofNorwood v. Baker,
And while this case has been explained and modified by subsequent decisions of the same Court, notably in French v. Paving Co.,
In Preston v. Judd, supra, the Court held: "In assessing property to pay for street improvements, the municipality having decided (301) that the assessed area or tax district as an entirety will be benefited by the contemplated improvements, a lot owner may be compelled to pay his proportion of the cost of the improvement unless the absence of benefit and of public need of the improvement make it manifest that the burden amounts to spoliation and not legitimate taxation, in which event the burden can not be imposed."
In Atlanta v. Hamlein, supra, it was held: "Ordinarily, the question of benefit, whether general or special, is concluded by a distinct legislative declaration specifically authorizing the improvement; but where by its charter a municipal corporation is authorized generally to pave the public streets and charge against the abutting landowners proportionate shares of the cost of such improvement, estimated upon the front-foot rule, if in the assessment for a given improvement there be such a gross disproportion between the sum assessed against a particular lot owner and the value of his abutting lot as that if the municipal corporation be permitted to proceed with its collection such action would *247 amount to a virtual confiscation of the landowner's property, the assessment can not be upheld as a valid exercise of the power conferred, and a court of equity will enjoin the collection of the sum so assessed."
And in Judson on Taxation, sec. 359, it is said: "The legislative discretion, therefore, in apportioning the cost of public improvements, while broad and comprehensive, is not unlimited, but is subject to judicial review and scrutiny in determining whether property charged with such cost is taxed in accord with the fundamental canons of taxation and thus under `due process of law.'"
And, again, in section 388, this author, after careful review of the recent decisions of the Supreme Court on the question, said: "It is clearly established by these decisions of the Supreme Court that the legislative power, broad and comprehensive as it is in taxation, is not unlimited and is not beyond the reach of judicial review and scrutiny. The rule thus laid down in the case of special assessments is substantially the same which has been declared in regard to the requirement of a public purpose in general taxation or in the enforcement of limitations upon the legislative power of classification. These are primarily legislative questions, and the courts, especially the Federal courts, (302) will only in extreme cases review the exercise of that discretion. Thus it is primarily for the Legislature to determine whether a tax is levied for a public purpose. But, as was seen in the preceding chapter, cases are not wanting in which such legislative declaration or finding had been overruled by the courts. It is primarily a legislative function to determine what is a reasonable classification for taxation, but this determination is subject to judicial review."
It will thus be seen that, while the right of the court to interfere for the protection of the individual owner of property is recognized, its exercise can only be justified and upheld in rare and extreme cases, when it is manifest that otherwise palpable injustice will be done and the owner's rights clearly violated. This limitation arises of necessity in this scheme of taxation, for in its practical application it would well-nigh arrest all imposition of these burdens if each individual owner of property were allowed to interfere and stay the action of the officials on any other principle. And on the facts presented we are of opinion that no error has been committed to defendant's prejudice in the disposition of the case. Under the doctrine established by the authorities cited, and by the express provisions of the statute, the court did right to hear the evidence offered by defendant (see, further, Indianapolis v. Holt,
We are of opinion, as stated, that the testimony entirely fails to bring the defendant's case within the principle he seeks to invoke, and that the judgment against him must be affirmed.
No error.
Cited: Jones v. Wilkesboro, post, 653; Land Co. v. Smith,
(303)