MERRIMON, C. J. and DAVIS, J., dissenting.
The following facts were agreed upon:
1. In June, 1888, after notice to defendant, as provided in section 60 of the charter of said city, and in the ordinance named below, that he was required by an ordinance of the board of aldermen to have the
street in front of his real property paved, and after refusal of defendant to have such paving done for more than thirty days after notice, the plaintiff paved 58 1/3 yards on Fayetteville Street, in front of defendant's property, said paving being worth and having cost $1.20 per yard.
2. That defendant was notified and demanded as aforesaid by plaintiff to pave said 58 1/3 yards, pursuant to said ordinance and section 60, and the number of yards demanded to be paved was one-third of said street in front of defendant's property. All of said street in front of said property was paved, so that said 58 1/3 yards did not comprise all the paving done on said street.
3. The defendant was at the time of notice and paving aforesaid, and now is, the owner of said property in front of which the paving was done.
4. That after the paving was done by plaintiff, the plaintiff demanded of defendant the payment of the value and cost of same, and payment was refused.
(34) 5. That on 28 February, 1890, summons in said action having been prior to that time duly issued and served upon defendant, a justice of the peace, before whom it was returnable, rendered judgment in favor of plaintiff for $70, with interest from 1 July, 1888, the same being the value and cost of the paving; and the defendant appealed to the Superior Court.
Section 60 of the charter of said city is as follows: "That every owner of a lot, or person having as great an interest therein as a lease for three years, which shall front any street on which a sidewalk has been established shall improve, in such manner as the aldermen may direct, such sidewalk as far as may extend along such lot, and on failure to do so within twenty days after notice by the chief of police to said owner, or, if he be a nonresident of the county of Wake, to his agent, or if such nonresident have no agent in said county or his personal notice cannot be served upon the owner or agent, then after publication of a notice by the chief of police for thirty days in some newspaper published in Raleigh, calling on the owner to make such repairs, the aldermen may cause the same to be repaired, either with brick, stone, or gravel, at their discretion, and the expense shall be paid by the persons in default. Said expense shall be a lien upon said lot, and if not paid within six months after completion of the repairs, such lot may be sold, or enough of the same to pay such expenses and cost, under the same rules, regulations and restrictions, rights of redemption and saving, as are prescribed in said charter for the sale of land for unpaid taxes. The board of aldermen shall have power to require every owner of real estate in the city to pave one-third of the street or streets in
front of his or her land, in such manner and with such material as the street committee of the board of aldermen may direct, and to enforce such requirement by proper fines and penalties; and upon the failure of such owner to do such paving, the city may have same done, and the costs thereof may be assessed upon the property of such (35) delinquent and added to the taxes against him or her, and collected in the same manner that other taxes or assessments are collected, or judgment may be taken by the city, before the mayor or any justice of the peace, or in the Superior Court of Wake, for the cost of such paving, and when docketed in the Superior Court of Wake such judgments shall have the same lien as is possessed by other judgments docketed in said Superior Court, and be enforced in like manner."
Ordinance referred to is as follows:
"Resolved," That the owners of real estate on Fayetteville Street, between Morgan and Martin streets, be and are hereby required and directed to pave so much of said street as lies in front of their respective lots from the curbing of the sidewalk to the pavement laid by the city on said street, being one-third of the said street, in such manner and with such material as the street committee of the board may direct, to wit, with rubble-stone. And if any owner shall fail for the period of thirty days after written notice from said committee to do such paving, then the same shall be done by the city for $1.20 per square yard at the cost of such delinquent, as provided in section 2 of an act of the General Assembly of 1887, entitled `An act to amend the charter of the city of Raleigh,' ratified on 7 March, 1887, and made a part of this case."
The court found, as a further fact, that all the other property owners along Fayetteville Street were likewise required by plaintiff, under like authority as they seek to exercise in this case, to pave one-third of the sidewalk in front of their respective buildings, and that the cost of said paving was reasonable. The court rendered judgment for plaintiff.
The defendant excepted to the judgment, upon the ground that the same was not warranted by the Constitution and laws of this State, and appealed.
While we are of the opinion, for the reasons hereinafter (36) stated, that the particular judgment rendered in this action cannot be sustained, yet, as the validity of the ordinance under which the assessment is made is drawn in question, and as it is of great importance that it should be passed upon by this Court, we deem it our
duty to consider this and such other points that are presented in the record as may be necessary to an intelligent disposition of the present and perhaps other cases which may arise upon the subject.
(1) The authority of the Legislature, either directly or through its local instrumentalities, to exercise the taxing power in the form of local or special assessments, has been so firmly established by judicial decision in this and other states of the Union that it can hardly, at this late day, be considered an open question; but as it seems to be controverted by the argument of counsel, it may not be improper to state in a general way the principle upon which it is founded, as well as to refer to some of the multitude of authorities in its support.
Judge COOLEY, in his work on Taxation (606), says that special assessments "are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it."
"The rationale of the system," says Mr. Burroughs, "is that the purpose is a public one which justifies the levy of the tax, but the benefit of the improvement is not only local, but also specific, benefiting particularized property, and therefore the tax may be levied on this (37) property, which receives a benefit over and above other property in the State. . . . An assessment for improvements is not considered as a burden, but as an equivalent or compensation for the enhanced value which the property derives from the improvement." The Law of Taxation, 460.
Judge Dillon (2 Municipal Corp., 753n) quotes with entire approval the language of Slidell, C. J., in Municipality No. 2 v. Dunn, 10 La. Am., 57. The Chief Justice says: "I must repeat my conviction that the system of paying for local improvements wholly out of the general treasury is inequitable and will result in great extravagance, abuse, and injustice. I think the system of making particular localities which are specially benefited bear a special portion of the burden is safer and more just to the citizens at large by whose united contributions the city treasury is supplied. What is taken out of the treasury is out of the pockets of the proprietors."
Speaking of special assessments, the Supreme Court of Missouri, inLockwood v. St. Louis (24 Mo., 20), said that "their intrinsic justice strikes every one. If an improvement is to be made, the benefit of which is local, it is but just that the property benefited should bear the burden. While the few ought not to be taxed for the benefit of the whole, the whole ought not to be taxed for the few. . . . General
taxation for a mere local purpose is unjust; it burdens those who are not benefited, and benefits those who are exempt from the burden."
These assessments are not to be confounded with the exercise of the right of eminent domain (Cooley Const. Lim., 498; 2 Dillon Munic. Corp., 738; Lewis on Eminent Domain), and it is also to be observed that while they are taxes in a general sense, in that the authority to levy them must be derived from the Legislature, they are nevertheless not to be considered as taxes falling within the restraints imposed by Art. V, sec. 3, of the Constitution, although the principle of uniformity governs both. Shuford v. Comrs., 86 N.C. 562; (38)Cain v. Comrs., 86 N.C. 8; Busbee v. Comrs., 93 N.C. 143; Cooley Const.Lim., 498; 2 Dillon Munic. Corp., 755, et seq.
The principle deducible from the foregoing quotations finds a striking illustration in the facts of the present case. The district improved by the pavement embraces only a part of one street, and while the improvement may add very greatly to the convenience and comfort of all of the citizens, it at the same time confers upon the abutting real property an enhanced pecuniary value out of all proportion to the benefits enuring to the public at large. Would it be just that all should be taxed alike, and that the owner of property in a remote part of the city be compelled to contribute as much towards the particular improvement as those whose lands are thus peculiarly benefited? This would savor very much of the "forced contributions" of the olden time, which are so generally denounced as obnoxious to the principles of free government, and the bare statement of the proposition shocks all sense of justice and furnishes its own refutation. It is, therefore, pre-eminently just, as well as the duty of the law-making power, to provide for an equitable adjustment of such burdens in proportion to the benefits conferred, and it is for the very purpose, as we have seen, of accomplishing this end, and of preventing so great a perversion of the taxing power, that these local or special assessments are almost universally resorted to. It is true that the power to levy such assessments is sometimes abused, and that some of the methods adopted have been judicially condemned, but the existence of the power itself is as well established as it is possible by judicial decision to establish any legal principle whatever. Wilmington v. Yopp,71 N.C. 76; Cain v. Comrs., supra; Busbee v. Comrs., supra;
2 Dillon Mun. Corp., 761; Cooley Const. Lim., 506; 1 Hare Am. (39) Const. Law, 301; Elliott on Roads and Streets, 370.
(2) We will now consider whether the power of the Legislature was properly exercised in the case before us.
It is a general rule everywhere conceded that the discretion of the Legislature in levying taxes, when exercised within constitutional limits, is conclusive; but in respect to special assessments the principle is
questioned, and it is urged that these, not being strictly taxes, and not subject as such to the restraints imposed by the Constitution, but being founded solely, as some authors say, upon the principle of betterments of the property to the extent of the improvement, the courts should not surrender the power to review an arbitrary decision of the Legislature, either as to the necessity for or the beneficial character of a particular improvement, or the manner in which the benefits are to be ascertained and assessed. That the judicial power has been successfully invoked in some instances will appear from the cases of Sealy v. Pittsburg, 82 Pa. St., 360; Washington Avenue, 69 Pa. St., 352, and other decisions cited in the notes to section 753 of volume 2 of Dillon on Municipal Corporations.
Ruffin, J., in Shuford v. Comrs., supra, says that such assessments "are committed to the unrestrained discretion of the law-making power of the State, only, as I take it, that the burden imposed on each citizen's property must be in proportion to the advantages it may derive therefrom." The latter part of the sentence very clearly implies the power of the courts to interfere to some extent, and in this we very heartily concur, but it is not essential in this case that we should define and mark the limits of this power, and it is sufficient to say that, according to all of the authorities, the Legislature or its duly authorized instrumentalities are primarily, at least, the judges in respect to the particulars mentioned, and that their decision will not be disturbed unless it clearly appears that there is an absence of power, or that the particular method prescribed for the assessment of the peculiar benefits to (40) the abutting property is so plainly inequitable as to offend some constitutional principle.
The power to make such assessments must be clearly authorized by the Legislature, but it is not necessary, and "of course not to be expected — indeed, it is scarcely conceivable — that the Legislature should, in conferring authority upon local bodies, specify in minute detail the incidents of the power. The courts generally hold that necessary incidental and subordinate powers pass with the grant of the principal power. Any other ruling would make it practically impossible to frame statutes capable of reasonable enforcement. In matters of street improvements and local assessments, as in kindred matters, it is generally held that a power clearly conferred in general words will carry all the incidental authority essential to the execution of the power in ordinary and appropriate methods." Roads and Streets, 374. It is urged that all of these subordinate incidents should be provided for in the act granting the power, because of section 4, article VIII, of the Constitution, which requires the Legislature to provide for the organization, etc.,
of incorporated towns, etc., "and to restrict their power of taxation, assessment, borrowing money," etc.
Similar provisions have, upon the best authority, been held inapplicable to assessments of this character. They are construed, says Judge Dillon (Mun. Corp., 778), "not to apply to special assessments by municipal corporations made by authority of the Legislature for local improvements." The restrictions in such cases are to be found in those general principles of the Constitution which protect the liberty and property of every citizen. Even if such a provision did apply, it is not easy to understand how the duty to restrict the power requires that all of the incidents of its exercise shall be prescribed by the Legislature. Neither is it essential that the act of the Legislature, or an ordinance made under its authority, should expressly state that the contemplated improvement is necessary (Roads and Streets, 385), nor (41) is it required that the act should expressly declare that the assessments are to be made according to the benefits conferred. Both of these are implied from the very nature of this species of taxation, and that this is so is apparent from the action of the court in upholding such assessments under acts which make no reference to such particulars. Cain v.Comrs., supra; Shuford v. Comrs., supra; Busbee v. Comrs., supra.
Viewed in this light, we can see no objection to the ordinance under consideration. It very clearly provides for a taxing district, to wit, "Fayetteville Street, between Morgan and Martin streets," and it further provides that upon the failure of the abutting owners to comply with its requirements, the city may make the designated improvements at the cost of $1.20 per square yard. This provision, as to the cost (which is found by the court to be reasonable), very plainly implies that the expense of the improvement in the entire district had been previously estimated, and thus we have an apportionment between the abutting owners and the city (the latter paying one-third), and also an apportionment as to the remaining two-thirds between the abutting proprietors according to the frontage. No objection is urged as to the apparently equitable adjustment between the city and the abutting owners, but it is insisted that the frontage rule is an improper method of ascertaining the benefits which enure to the respective lots, and that these should be estimated by the actual appraisement of each.
We have seen that such assessments are based upon the principle of benefits to the abutting property, but the manner of estimating such benefits is not confined to actual appraisement by appraisers appointed for that purpose. This would seem to be a very fair and equitable rule, but its practical working in some instances has led to injustice, and if the Legislature, acting, as it is presumed to do, upon information
(42) as to the situation and character of the property, the depth of the lots, etc., chooses, in effect, to make an appraisement itself by the adoption of a standard like the frontage rule, it is not easy to understand why in such cases the same measure of justice may not be attained.
In Hamet v. Philadelphia, 65 Pa. St., 155, it was said by JudgeSharswood, delivering the opinion, that "Perhaps no fairer rule can be adopted than the proportion of feet front, although there must be some inequalities of the lots differing in situation and depth. Appraising their market values, and fixing the proportions according to these, is a plan open to favoritism or corruption, and other objections." Even where the latter rule is adopted, the buildings should be excluded from the valuation, "as the improvements (says Judge Cooley), while increasing largely the market value of the land, do not usually perceptibly increase the value of the buildings erected upon it." Laws of Taxation, 649. If the buildings are not to be considered (and this is undoubtedly true), we can very readily conceive how the frontage rule may be quite as efficacious as any other in ascertaining the benefits — that is, the enhanced pecuniary value — where from the similarity in situation, etc., of the different lots there can be no gross inequalities. The same eminent authority also states (638) that the two methods of assessing benefits between which a choice is usually made is by assessors or commissioners appointed for that purpose, or by "an assessment by some definite standard fixed upon by the Legislature itself, and which is applied to the estate by a measurement of length, quantity, or value." In speaking of assessments by the front foot, he says (644) that "Such a measure of apportionment seems at first blush to be perfectly arbitrary and likely to operate in some cases with great injustice; but it cannot be denied that, in the case of some improvements, frontage is a very reasonable measure of benefits, much more than value could (43) be, and perhaps approaching equality as nearly as any other estimate of benefits made by the judgment of men. However this may be, the authorities are well united in the conclusion that frontage may be lawfully made the basis of apportionment." Similar language is also used by the same author in his work on Constitutional Lim., 506, and cited with approval in Yopp v. Wilmington, supra.
In the well-considered work on Roads and Streets, 396, by Elliott, it is said that "The system which leads to the least mischievous and unjust consequences is that which takes into account the entire line of the way improved, and apportions the expense according to the frontage; for it takes into consideration the benefit to each property owner that accrues from the improvement of the entire line of the way, and does not impose upon one lot owner an unjust portion of the burden."
The principle is also fully sustained by the following authorities, which are only a part of the large number that might be cited: Burroughs Law of Taxation, 469; 2 Dillon Munic. Corp., 752, 761, 809; 2 Desty Tax., 1263; Pennock v. Hoover, 5 Rawls, 291; Magee v. Com., 46 Pa. St., 255;Covington v. Boyle, 6 Bush., 204; S. v. Elizabeth,30 N. J., 365, and 31 N.J. 547; S. v. Fuller, 34 N. J., 227;Wilder v. Cincinnati, 26 Ohio St. 284; Parker v.Challis, 9 Kans., 155; Meenan v. Smith, 50 Mo., 525; Whitingv. Quackenbush, 54 Cal. 306; Palmer v. Stumpf, 29 Ind. 329; Allen v.Grew, 44 Vt. 174; Motz v. Detroit, 18 Mich. 495; King v. Portland,2 Ore., 146; Cleveland v. Tripp, 13 R. I., 50; White v. People, 94 Ill. 604;Sheley v. Detroit, 45 Mich. 431.
Before proceeding further, we will examine the cases cited in support of the contrary view.
In S. v. Jersey City, 8 Vroom, 37 N.J. L., 130, the assessment was for grading, excavating, and filling in the street, and the court held that in such cases the same uniformity could not be had as in paving. The principle of assessment by the frontage as to the flagging of sidewalks was approved; and, at the same term, in S. v. Passaic (44)Village, 68, it was declared that "There would be no injustice in assessing the improvement of opening, grading, guttering, and curbing upon the entire frontage according to the number of lineal feet. . . . There is no rule that condemns such method of assessment without proof of its injustice."
In McBear v. Chandler, 9 Heisk., 349, the "equality" clause of the Constitution was applied, which we have seen is contrary to the ruling of this Court and the overwhelming weight of authority in the other states.
In Norfolk v. Ellis, 26 Gratt., 224, the principle was approved; and while in Woodbridge v. Detroit, 3 Mich., the court was divided, in the later case of Moltz v. Detroit, 18 Mich., it distinctly recognized the front foot basis, if authorized by the Legislature.
Peay v. Little Rock, 32 Ark., decides against the rule, but the decision seems to have been influenced by Illinois cases, which turned upon the peculiar provisions of the Constitution of that State, which Constitution, we learn, has since been changed in this respect, and recent decisions sustain the rule.
In Williamsport v. Beck, 128 Pa. St., 147, the assessment was for repaving, and the court recognized the rule as to the cost of the original paving.
In Clapp v. Hartford, 35 Conn. 96, the charter was not complied with, and the cases cited from Missouri do not controvert the rule, but simply construe it as it should be applied under certain statutes referred to.
Thus it appears that even the industry of the intelligent counsel has failed to produce any authority where the general principle was fairly presented and condemned, while nearly if not indeed all of the cases cited by them tend very strongly to its support.
(45) It is insisted, however, with much earnestness that conceding that the ordinance prescribes a valid method of apportionment, still it cannot be sustained unless the power to make it is conferred by the Legislature, and that such power has not been conferred upon the city of Raleigh. This position is founded upon the idea that the charter does not create or authorize the creation of a taxing district, but simply charges the abutting owner with the whole cost of the improvement in front of his lot, and that there being an absence of authority to make any apportionment according to benefits, the ordinance is void. The imposition of such a charge has been condemned by some authorities and sustained by others. Without pausing to determine how this may be, and conceding for the purposes of the discussion that the charter bears the construction insisted upon, and that such an assessment is for that reason invalid, we are, nevertheless, of the opinion that the ordinance is fully supported by legislative sanction. In chapter 62, section 3803, of The Code (Towns and Cities), it is provided that the commissioners or aldermen "may cause such improvements in the town to be made as may be necessary, and apportion the same equally among the inhabitants by assessments of labor or otherwise." Here we have a very comprehensive power granted the commissioners or aldermen for the improvement of streets, and the authority to apportion the cost of the improvement is not only implied by the power to make "assessments" (Anderson Law Dict., Bouvier Law Dict. Assess.), but is expressly conferred.
Now, if it be granted (as we think it should be) that the general act is deficient in that it does not provide for the enforcement of such assessments against abutting real property, still it is good as far as it goes, and is not repealed by the charter as amended, unless inconsistent therewith. The Code, sec. 3827. If it be said that the charter conflicts as to that part which requires the whole cost to be charged against the abutting property without any apportionment, and if, as contended, (46) such a provision is void, it would be impotent to work a repeal of that part of the general act which does authorize such apportionment. If it does not conflict, then of course the general act may supplement the special act, and the two may be construed in pari materia. So, taking it either way, the authority to apportion the cost according to benefits, as provided in the ordinance, would be supported, and the power to collect the assessments, being expressly granted, and the manner of collection prescribed, it must follow that, in the total
absence of anything to show an abuse of power or any gross inequalities, the assessment in question may be enforced.
We are of the opinion, however, that no personal judgment can be rendered against the abutting owner, and that so much of the amendment to the charter which provides for such a judgment is invalid. It is true that in Yopp v. Wilmington, supra, such a judgment was rendered, but the point was not presented and passed upon by this Court, the only question decided being the validity of special assessments of this character, and not the manner of their enforcement. We feel at liberty, therefore, to examine into the constitutionality of the act authorizing the judgment in question, and in doing so we cannot better express our views than by quoting the language of Mr. Elliott: "It is not easy to perceive how the assessment can extend beyond the property against which it is directed, since the sole foundation of the right to direct and enforce the assessment rests upon the theory that the land receives a benefit equal to the assessment. If the land, with the super-added value given to it by the improvement, will not pay the assessment, there is no constitutional warrant for the right to seek payment of the assessment elsewhere; for the land is all that the improvement can by any possibility benefit, and land (or other property) that is not benefited cannot be seized without violating the principle which forbids the taking of property without compensation, nor without breaking down the only theory upon which it is possible to sustain (47) local assessments; and yet if there is a personal liability, the assessment may be enforced although the land, even as enhanced in value by the improvement, may not be worth a tithe of the extent of making the improvement. . . . The decisions which declare statutes imposing a personal liability upon the landowner unconstitutional are, in our judgment, so strongly entrenched in principle that they cannot be shaken." Roads and Streets, 400. Such, also, is the opinion of Judge Cooley (Taxation, 675), who says that "In such a case, if the owner can have his land taken from him for a supposed benefit to the land, which, if the land is sold for the tax, it is thus conclusively shown he has not received, and he then held liable for a deficiency in the assessment, the injustice, not to say the tyranny, is manifest. But such a case is liable to occur if assessments are made a personal charge; and cases like it in principle, though less extreme in the injury they inflict, are certain to occur."
The foregoing reasons are entirely conclusive to our minds, and are well sustained by authority. Higgins v. Ansmus, 77 Mo., 351; Neenan v. Smith,50 Mo., 525; Macon v. Patty, 57 Miss. 378; Cran v. Tolono, 96 Ill. 255; Jaffery v. Gough, 36 Cal. 104; Broadway v. McAtee, 8 Bush., 508; Burlington v. Quick, 47 Iowa 226; Green v. Ward, 82 Va. 324.
The act provides that the judgment of the justice of the peace may be docketed in the Superior Court, "and shall have the same lien as is possessed by other judgments docketed in said Superior Court, and be enforced in like manner." The judgment authorized being a personal one, we know of no principle by which it can be so modified and shaped in a justice's court (which has no equitable jurisdiction) as to make it a charge against the abutting land only. It is to be observed, however, that another method of collecting is provided by the amendment to the charter. It provides that the assessment may be "added to the (48) taxes against him or her, and collected in the same manner that other taxes or assessments are collected." We can see no reason why this assessment may not be enforced against the abutting land under this provision of the said amendatory act.
We are therefore of the opinion with his Honor, that the assessment is valid, but we do not think it can be enforced by a personal judgment against the defendant. For this latter reason we conclude that the judgment should be reversed.