City of Salisbury v. Arey

29 S.E.2d 894, 224 N.C. 260, 1944 N.C. LEXIS 350

• Court: Supreme Court of North Carolina
• Decided: May 3, 1944
• Status: Published

Opinions

DeNny, J.

We think the questions raised on this record for our consideration and determination may be stated as follows:

1. Where a municipality confirms a street assessment for local improvements, in accordance with the provisions of Chapter 56, Public Laws of 1915, and the property owner fails to pay the assessment in cash within the thirty-day period prescribed by Gr. S., 160-92 (O. S., 2717), and does not request the privilege of paying in installments, as provided therein, may the municipality, without further action, divide the assessment into installments, in accordance with the terms of the original resolution authorizing the improvements ?

2. Are the resolutions of the city council of the city of Salisbury, as set forth in the agreed statement of facts herein, sufficient to extend the unpaid assessment or the installments thereof, into a new series of ten equal installments, as authorized by ch. 126, Public Laws of 1935 (now as amended G-. S., 160-94; O. S., 2717 [b] ) ?

3. Does the entry of the new series of installments, authorized by an extension resolution, which in the aggregate exceed the amount actually due, vitiate the .lien of the city and relieve the property owner from the payment of the correct amount?

4. Is the original assessment barred by the ten-year statute of limitations ?

On the first question the appellants contend that in the absence of a written request from the property owner to be permitted to pay the assessment in installments, the city had no authority to divide the assessment into installments, but was limited to a foreclosure proceedings for the collection of the entire amount, which proceedings could have been instituted at any time within ten years after the expiration of thirty ■days from the confirmation of the assessment roll on 6 April, 1926, and rely upon the following authorities: Lexington v. Crosthwait, 25 Ky. L. R., 1898, 78 S. W., 1130; Lexington v. Woolfolk, 138 Ky., 392, 128 S. W., 104; Hubbell v. Hammil, 187 Iowa, 1083, 175 N. W., 41; Schaefer v. Hines, 56 Ind., A. 17, 102 N. E., 838; Cleveland v. Spartanburg, 185 S. C., 373, 194 S. E., 128; and Blake v. Spartanburg, 185 S. C., 398, 194 S. E., 124; 114 A. L. R., 395. An examination, however, of these authorities discloses that in each case an agreement between the city and the landowner was required, either by statute or by the ordinance authorizing the local improvements, before the city could ■divide the assessment into installments. There is no such requirement in our statute or in the preliminary resolution authorizing the local improvements for which the original assessment involved herein was levied. The statute requires the preliminary resolution to designate “the terms and manner of the payment.” G. S., 160-83; O. S., 2708; and the resolution provided: “That the owners of the abutting property affected hereby shall pay the amount assessed against their property in ■cash upon completion of the work and confirmation of the assessment roll, as provided in said article (see. 6, ch. 56, Public Laws of 1915, G. S., 160-83; O. S., 2708), or in ten equal annual installments bearing interest at the rate of 6% per annum from the date of the confirmation ■of the assessment roll.”

The pertinent part of G. S., 160-91; O. S., 2716, is as follows: “The property owner or railroad or street railway company hereinafter mentioned shall have the option and privilege of paying for the improvements hereinbefore provided for in cash, or if they should so elect and give notice of the fact in writing to the municipality within thirty days after the notice mentioned in next succeeding section, they shall have the ■option and privilege of paying the assessments in not less than five nor more than ten equal annual installments as may have been determined by the governing body in the original resolution authorizing such improvement. . .' . The whole assessment may be paid at the time of paying any installment by payment of the principal and all interest accrued to that date.”

We think the foregoing provisions in the above statute were enacted for the benefit of the property owner, giving the owner a period of thirty •days from the date notice is given as required by G. S., 190-92; O. S., 2717, in which to pay the assessment in cash, without interest; or, if he should so elect and give notice in writing to the municipality within said period of thirty days, that he desires to pay his assessment in installments, then it becomes mandatory upon the city to permit such property owner to pay Ms assessment in installments. But, where the property owner remains silent and neither pays in cash within the thirty-day period nor signifies in writing his election to pay in installments, the option passes to the municipality to proceed to foreclose and collect the entire assessment or to collect the assessment in installments, as provided in the original resolution authorizing the improvements.

Upon the facts presented on this record, the governing body of the city of Salisbury had the same right to waive the failure of the property owner to pay the assessment in cash and to collect the assessment in installments in accordance with the terms and provisions of the resolution authorizing the improvements, that it has to waive the acceleration provision contained in the same statute in cases of default, which provision is as follows: “. . . In case of the failure or neglect of the property owner ... to pay any installment when the same shall become due and payable, then and in that event all of the installments remaining unpaid shall at once become due and payable and such property -.. . . shall be sold by the municipality under the same rules, regulations, rights of redemption and savings as are now prescribed by law for the sale of land for unpaid taxes.” G. S., 160-91; C. S., 2716. Our Court has held that the above acceleration provision was enacted for the benefit of the municipality and may be waived without starting the running of the statute of limitations as to unmatured installments. Farmville v. Taylor, 208 N. C., 106, 179 S. E., 459, which decision is in accord with the following decisions from other jurisdictions: Town of Cheraw v. Turnage, 184 S. C., 76, 191 S. E., 831; Mayor and Aldermen of the Town of Morristown v. Davis, 172 Tenn., 159, 110 S. W. (2d), 337; 113 A. L. R., 1164; City of Jackson v. Willett, 178 Tenn., 605, 162 S. W. (2d), 367; Barber Asphalt Paving Go. v. Meservey, 103 Mo. App., 186, 77 S. W., 137; Voorhees v. North Wildwood, 75 N. J. L., 463, 68 A., 175; Middleboro v. Terrell, 259 Ely., 47, 81 S. W. (2d), 865.

In the case of Jackson v. Willett, supra, the Supreme Court of Tennessee was considering the identical question we have under consideration, except the city of Jackson was under no obligation to grant the property owner the privilege of paying on the installment plan unless and until the property owner agreed in writing not to contest the debt. The Court held that: “The municipality had the right by virtue of this provision to refuse to grant to the taxpayer the ‘privilege’ of the installment plan of payment, unless and until the written agreement not to' contest the debt had been entered into, and upon the failure or default of the taxpayer in this regard, the city had the right to demand and collect the payment in cash. But, just as with the acceleration clause, the provision was obviously for the benefit of the city, to be exercised or waived at its option. We can find no reason for applying the rule to> tbe provision for acceleration, wbicb does not call for its application to tbe provision under consideration. Tbe principle involved is tbe same. In botb cases tbe taxpayer seeks to penalize tbe city for its indulgence; in tbe one case for its failure to mature tbe entire debt by enforcement of tbe statutory acceleration provision, and in tbe other for its failure to enforce payment of tbe entire debt in cash under tbe pertinent statutory provision.” Likewise, in tbe case of City of Norman ■v. Allen, 47 Okla., 74, 147 Pac., 1002, it was beld and approved in City of Norman, et al., v. Van Gamp, et al., 87 Okla., 182, 209 Pac., 925, that where tbe ordinance provides “that tbe property owners may, within thirty days from tbe passage thereof, have tbe privilege of paying all assessments without interest, and if such property owners do not avail themselves of such privilege, their assessments and installments thereof shall draw interest from tbe date of tbe passage of tbe assessing ordinance, and tbe interest on tbe whole or entire unpaid installments and assessments then be payable annually at tbe time tbe respective installments under tbe assessments are payable.”

Tbe appellants further contend that tbe governing body of Salisbury ■did not authorize by way of resolution or ordinance tbe entry or division •of tbe assessment involved herein, into ten equal annual installments. No action by way of resolution or ordinance is required. After tbe governing body of a municipality levies an assessment, it then becomes tbe duty of tbe city clerk, unless some other party is designated, to prepare from tbe assessment roll and deliver to tbe tax collector a 'Special Assessment Book, containing information in detail as required by G. S., 160-100; C. S., 2722, including tbe amount that has been .assessed and tbe amount of such installments and tbe date on wbicb tbe installments shall become due.

Tbe contention that tbe governing body of tbe city of Salisbury was without authority to divide tbe assessment involved herein into installments, as provided in tbe original resolution authorizing tbe improvements, upon tbe failure of tbe property owner to pay in cash within tbe thirty-day period, or to signify bis election in writing within said period "hereinbefore mentioned, to pay in installments, cannot be sustained.

Tbe appellants attack tbe validity of tbe extension resolution and tbe amendment thereto, on tbe theory that tbe original resolution passed by tbe city council of tbe city of Salisbury, 31 May, 1935, was null and void, since tbe first installment of tbe new series of installments fell due in less than one year from tbe date of its passage, whereas tbe statute, ■chapter 126, Public Laws of 1935 (now, as amended, G. S., 160-94; G. S., 2717 [b] ), provided that in arranging tbe new series of ten equal installments, one of said installments shall fall due on tbe first Monday in October after tbe expiration of one year after tbe adoption of tbe extension resolution and one of said installments on tbe first Monday in October of each year thereafter. The city council, on 13 September, 1935, amended the original resolution to conform to the statutory requirement in respect to the dates on which the installments would fall due.

The appellants urge that statutory requirements as to the contents of a resolution or ordinance must be strictly complied with, citing 44 C. J., sec. 2401, p. 240. It will be noted, however, that it is also stated in the same section, that “When from the language used the intention of the council is manifest, and the requirements affecting substantial rights of the persons interested in the improvements are recognizable, the resolution is sufficient.” Hence, we think the resolution was defective, but not void.

It seems to be the general rule that the power to enact ordinances or to adopt resolutions necessarily implies power in the same body to amend them. 43 C. J., sec. 882, p. 561. It is stated in section 883, of the last cited authority, that “Ordinances defective because imposing excessive-penalties may be amended so as to change the invalid penalty to one which is valid.” State v. McDonald, 121 Minn., 207, 141 N. W., 110; Simpson v. Berhowitz, 110 N. T. S., 485. In the last case cited, the Supreme Court of New York said: “The power is inherent in every deliberative body to amend a resolution previously adopted by it.” In the case of Bacon v. City of Savannah, 105 G'a., 62, 31 S. E., 127, the city passed an ordinance under legislative authority, but the ordinance was defective on account of an illegal apportionment of the assessment among the several abutting parcels of real estate, the Supreme Court of Georgia held it was competent for the city to amend its ordinance, after the completion of the work upon the street, so as to conform to the statute in its provisions touching a legal apportionment of the assessment.

We hold that the extension resolution, as set forth herein, as passed and amended by the city council of the city of Salisbury, was a valid exercise of the statutory authority to extend the payments for local improvements, and did extend all installments of special assessments levied by the city of Salisbury prior to 31 May, 1935, for local improvements, whether due or not due, together with accrued interest thereon into a new series of ten equal installments, the first of the extended installments to be due and payable on the first Monday in October, 1936,. and the remaining installments to become due serially on the first Monday in October each year thereafter.

The appellants also challenge the validity of the lien of the plaintiff,, on the ground that the new series of installments, entered on the records of the city, pursuant to the extension resolution and the amendment thereto, were for sums, which in the aggregate exceeded the amount actually due at tbe time by tbe appellants. There is no merit in tbis challenge. Tbe governing body of a municipality is given tbe power by statute to correct, cancel or remit any assessment for a local improvement, and may remit, cancel or adjust the interest or penalties on any such assessment. G. S., 160-90; O. S., 2715. See also Vester v. Nashville, 190 N. C., 265, 129 S. E., 593; Gallimore v. Thomasville, 191 N. C., 648, 132 S. E., 657.

We now come to tbe final question for determination. Is tbe original assessment barred by tbe ten-year statute of limitations ? In view of tbe conclusion reached on tbe other questions presented, it necessarily follows that tbis question must be answered in' tbe negative. The new series of installments date from tbe first Monday in October, 1935, and tbe first installment did not mature until tbe first Monday in October, 1936, and tbis action was instituted 26 October, 1943. Charlotte v. Kavanaugh, 221 N. C., 259, 20 S. E. (2d), 97; City of Raleigh v. Mechanics & Farmers Bank, 223 N. C., 286, 26 S. E. (2d), 573; Raleigh v. Public School System, 223 N. C., 316, 26 S. E. (2d), 591.

Tbe judgment of tbe court below is

Affirmed.