Adaks, J.
The question first to* be determined is whether the park or common described in the record was liable to a special assessment for the paving of East Park Avenue, a contiguous street.
Both the Constitution of North Carolina and the statute law provide that property belonging to the State or to municipal corporations shall be exempt from taxation. (Art. V, sec. 5. C. S., 7768, 7901.) But there [62]*62is a distinction between local assessments for public improvements and taxes levied for purposes of general revenue. It is true that local assessments may be a species of tax, and that the authority to levy them is generally referred to the taxing power, but they are not taxes within the meaning of that term as generally understood in constitutional restrictions and exemptions. They are not levied and collected as a contribution to the maintenance of the general government, but are made a charge upon property on which are conferred benefits entirely different from those received by the general public. They are not imposed upon the citizens in common at regularly recurring periods for the purpose of providing a continuous revenue, but upon a limited class in return for a special benefit. These assessments, it has been suggested, proceed upon the theory that'when a local improvement enhances the value of neighboring property, it is reasonable and competent for the Legislature to provide that such property shall pay for the improvement. And in the absence of some restraining constitutional provision on the subject, whether the assessment shall be made according to frontage or area or benefit is a question of legislative expediency. Dillon on Municipal Corporations (5 ed.), secs. 1430, 2497; 2 Elliott on Roads and Streets (3 ed.), sec. 663; Willard v. Presbury, 14 Wall., 676; Parsons v. District of Columbia, 170 U. S., 45; French v. Barber Asphalt Paving Co., 181 U. S., 324; Chadwick v. Kelly, 187 U. S., 542; Raleigh v. Peace, 110 N. C., 32; Durham v. Public Service Co., 182 N. C., 333; Morganton v. Avery, 179 N. C., 551.
In the various jurisdictions there is diversity of opinion with respect to the question whether a municipal corporation may levy a special assessment against its own property when used for the benefit of the public. Generally speaking, the decisions may be classified as follows:
(1) Those in which it is held that a municipality has no power to subject its own property when used for public purposes to a special assessment for a local improvement. Herman v. Omaha, 75 Neb., 489; State v. Several Parcels of Land, 79 Neb., 638.
(2) Those in which it is held that the property of a municipality is not subject to such special assessment unless expressly authorized by statute. St. Louis v. Brown, 155 Mo., 545; Barber Asphalt Paving Co. v. St. Joseph, 183 Mo., 451.
(3) Those in which by the great weight of authority it is held that the public property of a municipality is subject to a special assessment for local improvements. New Orleans v. Warner, 175 U. S., 120; Higgins v. Chicago, 18 Ill., 276; McLean County v. Bloomington, 106 Ill., 209; Newberry v. Detroit, 164 Mich., 410; Whittaker v. Deadwood, 139 Am. St. Rep. (S. D.), 1076; Boyd v. Milwaukee, 92 Wis., 456; Ross v. [63]*63New York, 3 Wend. (N. Y.), 333; Raleigh v. Peace, supra; Durham v. Public Service Co., supra; Morganton v. Avery, supra.
In Scammon v. Chicago, 42 Ill., 193, it is said: “It appears from tbe record that there are public grounds on the east side of the street, and a public square, known as Dearborn Park, on the west side, and that these were wholly exempted from the assessment. The entire burden was imposed upon the private property owners on one side of the street, except the cost of the intersections. We are wholly unable to see how this can be reconciled with the principle prescribed by the Legislature, and requiring the assessment to be laid upon all the property benefited. It is insisted by the counsel for the city that this public property is not benefited because it is public, and cannot be sold or diverted to any other than its present uses. But even as a park or public pleasure ground, it is clearly benefited by having the streets bounding it kept in good condition. If it were the pleasure ground of a private corporation, held solely for that purpose, and accessible only to its members, and incapable of alienation, no one would deny that it should be assessed for an improvement of the character in common with the property of individuals. We do not see'that the case is different because instead of being the property of a private it belongs to a municipal corporation, in trust for all its citizens.”
In Newberry v. Detroit, supra, the question was whether a public park abutting on Edison Avenue, a distance of about 820 feet, was subject to a local assessment for paving the avenue under a clause in the city charter levying the assessment according to frontage. McAlvay, J., delivering the opinion of the Court, said: “Construing the language of the charter relative to assessments for paving, we do not find any exemption of public grounds. In cases which hold the extreme doctrine that no property of the state is exempt from special assessments, and also those which hold that certain properties belonging to the public are exempted by statute from taxation, the decisions are harmonious in holding that the exemptions apply ‘only to the taxes mentioned in the general tax law.’ . . . The requirement of the law under which this assessment was made is that it must be according to the frontage upon Edison Avenue. Detroit Charter, 1904, pp. 182-184. Yoigt Park occupies about one-fourth of this entire frontage. It was not assessed. The entire cost was assessed against the remaining three-fourths, and not according to the frontage of each abutting lot. The law governing these assessments cannot be allowed if any frontage is omitted. This park frontage abutting upon the avenue should have been assessed for this paving. It was not exempt from such assessment.”
And in New Orleans v. Warner, supra, Mr. Justice Brown, in discussing the question, used this language: “The argument is that public [64]*64property, being exempt from taxation, is also exempt from these assessments; but the authorities haA^e long recognized a distinction between general taxes, which are for the benefit of the public generally and which in the nature of things the public must directly or indirectly pay, and special assessments for the benefit of particular property, which are a charge upon the property benefited. If this be private property, then each owner of such property pays his share; if it be public property,'the city pays it as the agent of the entire body of its citizens, who are assumed to have been benefited to that extent. Charnock v. Fordoche & G. T. Special Levee Dist. Co., La. Ann., 323.” 16 Ann. Cas., 888 n; Ann. Cas., 1917 D, 849 n.
These decisions fairly illustrate the spirit of the prevailing doctrine that a constitutional exemption from taxation of property belonging to a municipal corporation does not apply to special assessments which are made for local improvements; and this doctrine seems to be supported and fortified by a statute which provides that no lands in a municipality shall be exempt from local assessment. C. S., 2710 (4).
Free access — add to your briefcase to read the full text and ask questions with AI
Adaks, J.
The question first to* be determined is whether the park or common described in the record was liable to a special assessment for the paving of East Park Avenue, a contiguous street.
Both the Constitution of North Carolina and the statute law provide that property belonging to the State or to municipal corporations shall be exempt from taxation. (Art. V, sec. 5. C. S., 7768, 7901.) But there [62]*62is a distinction between local assessments for public improvements and taxes levied for purposes of general revenue. It is true that local assessments may be a species of tax, and that the authority to levy them is generally referred to the taxing power, but they are not taxes within the meaning of that term as generally understood in constitutional restrictions and exemptions. They are not levied and collected as a contribution to the maintenance of the general government, but are made a charge upon property on which are conferred benefits entirely different from those received by the general public. They are not imposed upon the citizens in common at regularly recurring periods for the purpose of providing a continuous revenue, but upon a limited class in return for a special benefit. These assessments, it has been suggested, proceed upon the theory that'when a local improvement enhances the value of neighboring property, it is reasonable and competent for the Legislature to provide that such property shall pay for the improvement. And in the absence of some restraining constitutional provision on the subject, whether the assessment shall be made according to frontage or area or benefit is a question of legislative expediency. Dillon on Municipal Corporations (5 ed.), secs. 1430, 2497; 2 Elliott on Roads and Streets (3 ed.), sec. 663; Willard v. Presbury, 14 Wall., 676; Parsons v. District of Columbia, 170 U. S., 45; French v. Barber Asphalt Paving Co., 181 U. S., 324; Chadwick v. Kelly, 187 U. S., 542; Raleigh v. Peace, 110 N. C., 32; Durham v. Public Service Co., 182 N. C., 333; Morganton v. Avery, 179 N. C., 551.
In the various jurisdictions there is diversity of opinion with respect to the question whether a municipal corporation may levy a special assessment against its own property when used for the benefit of the public. Generally speaking, the decisions may be classified as follows:
(1) Those in which it is held that a municipality has no power to subject its own property when used for public purposes to a special assessment for a local improvement. Herman v. Omaha, 75 Neb., 489; State v. Several Parcels of Land, 79 Neb., 638.
(2) Those in which it is held that the property of a municipality is not subject to such special assessment unless expressly authorized by statute. St. Louis v. Brown, 155 Mo., 545; Barber Asphalt Paving Co. v. St. Joseph, 183 Mo., 451.
(3) Those in which by the great weight of authority it is held that the public property of a municipality is subject to a special assessment for local improvements. New Orleans v. Warner, 175 U. S., 120; Higgins v. Chicago, 18 Ill., 276; McLean County v. Bloomington, 106 Ill., 209; Newberry v. Detroit, 164 Mich., 410; Whittaker v. Deadwood, 139 Am. St. Rep. (S. D.), 1076; Boyd v. Milwaukee, 92 Wis., 456; Ross v. [63]*63New York, 3 Wend. (N. Y.), 333; Raleigh v. Peace, supra; Durham v. Public Service Co., supra; Morganton v. Avery, supra.
In Scammon v. Chicago, 42 Ill., 193, it is said: “It appears from tbe record that there are public grounds on the east side of the street, and a public square, known as Dearborn Park, on the west side, and that these were wholly exempted from the assessment. The entire burden was imposed upon the private property owners on one side of the street, except the cost of the intersections. We are wholly unable to see how this can be reconciled with the principle prescribed by the Legislature, and requiring the assessment to be laid upon all the property benefited. It is insisted by the counsel for the city that this public property is not benefited because it is public, and cannot be sold or diverted to any other than its present uses. But even as a park or public pleasure ground, it is clearly benefited by having the streets bounding it kept in good condition. If it were the pleasure ground of a private corporation, held solely for that purpose, and accessible only to its members, and incapable of alienation, no one would deny that it should be assessed for an improvement of the character in common with the property of individuals. We do not see'that the case is different because instead of being the property of a private it belongs to a municipal corporation, in trust for all its citizens.”
In Newberry v. Detroit, supra, the question was whether a public park abutting on Edison Avenue, a distance of about 820 feet, was subject to a local assessment for paving the avenue under a clause in the city charter levying the assessment according to frontage. McAlvay, J., delivering the opinion of the Court, said: “Construing the language of the charter relative to assessments for paving, we do not find any exemption of public grounds. In cases which hold the extreme doctrine that no property of the state is exempt from special assessments, and also those which hold that certain properties belonging to the public are exempted by statute from taxation, the decisions are harmonious in holding that the exemptions apply ‘only to the taxes mentioned in the general tax law.’ . . . The requirement of the law under which this assessment was made is that it must be according to the frontage upon Edison Avenue. Detroit Charter, 1904, pp. 182-184. Yoigt Park occupies about one-fourth of this entire frontage. It was not assessed. The entire cost was assessed against the remaining three-fourths, and not according to the frontage of each abutting lot. The law governing these assessments cannot be allowed if any frontage is omitted. This park frontage abutting upon the avenue should have been assessed for this paving. It was not exempt from such assessment.”
And in New Orleans v. Warner, supra, Mr. Justice Brown, in discussing the question, used this language: “The argument is that public [64]*64property, being exempt from taxation, is also exempt from these assessments; but the authorities haA^e long recognized a distinction between general taxes, which are for the benefit of the public generally and which in the nature of things the public must directly or indirectly pay, and special assessments for the benefit of particular property, which are a charge upon the property benefited. If this be private property, then each owner of such property pays his share; if it be public property,'the city pays it as the agent of the entire body of its citizens, who are assumed to have been benefited to that extent. Charnock v. Fordoche & G. T. Special Levee Dist. Co., La. Ann., 323.” 16 Ann. Cas., 888 n; Ann. Cas., 1917 D, 849 n.
These decisions fairly illustrate the spirit of the prevailing doctrine that a constitutional exemption from taxation of property belonging to a municipal corporation does not apply to special assessments which are made for local improvements; and this doctrine seems to be supported and fortified by a statute which provides that no lands in a municipality shall be exempt from local assessment. C. S., 2710 (4). "We therefore hold that in computing the lineal feet of frontage of the lands abutting on the avenue the town common should not have been excluded.
But here another question arises. C. S., 2707, is as follows: “The petition for a local improvement shall be signed by at least a majority in number of the owners, who must represent at least a majority of all the lineal feet of frontage of the lands (a majority in interest of owners of undivided interests in any piece of property to be deemed and treated as one person for the purpose of the petition) abutting upon the street or streets, or part of a street or streets, proposed to be improved. The petition shall cite this article, and shall designate by a general description the local improvement to be undertaken and the street or streets, or part thereof, whereon the work is to be effected. The petition shall be lodged with the clerk of the municipality, who shall investigate the sufficiency thereof, submit the petition to the governing body, and certify the result of his investigation. The determination of the governing body upon the sufficiency of the petition shall be final and conclusive.”
The clerk certified that the petition was signed by a majority in number of the owners of the abutting property, and that they represented a majority of all the lineal feet of frontage. Thereupon, the board of town commissioners adopted a resolution reciting that a majority of those who owned abutting property, representing a majority of the lineal feet of frontage had signed the petition requesting that the avenue be paved and providing that one-half the total cost, not counting the space occupied by the intersecting streets, should be charged against the abutting lots “exclusive of the toAvn common.” The board also held that the petition was in compliance with the law, and was [65]*65“sufficient in all respects.” In these circumstances, then, tbe immediate inquiry is this: Since tbe common was subject to tbe special assessment in like manner witb other property fronting tbe avenue, and since it appears from tbe petition, tbe clerk’s certificate, and tbe resolution of tbe board of commissioners that no assessment was made against tbe common, shall tbe defendant be denied tbe right of contesting tbe alleged validity of tbe assessment against bis property on tbe ground that tbe determination of tbe governing body is final and cpnelusive ?
An affirmative answer would imply tbe possibility of subordinating tbe requirements of tbe law to “tbe determination of tbe governing body” of a municipality, and of appropriating tbe defendant’s property without authority of law. It is hardly conceivable that tbe Legislature, in prescribing tbe power of such governing body, contemplated or intended such a result.
From what has been said, it follows as a logical conclusion, we think, that the assessment charged against the defendant’s property is invalid. While a slight informality of procedure, or a failure to observe a provision which is merely directory, will not generally affect the validity of an assessment, it is nevertheless true that any substantial and material departure from the essential requirements of the law under which the improvement is made will render an assessment therefor invalid. the proceeding discloses a material defect in that the signers of the petition, although a majority in number of the owners, do not represent a majority of all the lineal feet of frontage of the lands abutting upon the improved avenue, as required by the statute. the charge against the defendant’s property, therefore, cannot be sustained. 5 McQuillin on Mun. Corp., sec. 2111, and note; 4 Dillon on Mun. Corp., sec. 1402, and note; Ziegler v. Hopkins, 117 U. S., 683; Ogden v. Armstrong, 168 U. S., 236; Holland v. Baltimore, 11 Md., 186; Greensboro v. McAdoo, 112 N. C., 359; Charlotte v. Brown, 165 N. C., 438.
Tbe judgment is
Affirmed.