Houck v. City of Hickory

*714 Adams, J. The record discloses an agreement by tbe parties that judgment should be awarded the plaintiffs unless the act of 1931 entitled “An act to prevent losses to general municipal taxpayers in Catawba County,” is a bar to the plaintiffs’ recovery. "Whether the act constitutes such a bar is the question for decision. The charter of the city of Hickory contains the following provision: “When permanent street improvements shall be made, the property bearing such assessments, shall not be assessed again until after the expiration of ten years from the date of the last preceding assessment.” This is a literal transcript of a clause embraced in the charter of the city of Charlotte, the scope and significance of which were explained and declared in Flowers v. Charlotte, 195 N. C., 599. In that case the question was whether an assessment for improvements on Sunnyside Avenue was void because made before the expiration of ten years from the date of the assessment for improvements on Louise Avenue. This Court held that the assessment was void without regard to the fact that the second assessment was made under the provisions of Article IX, ch. 56, of the Consolidated Statutes. We must abide by this decision unless its application is made ineffective by the cited act of 1931. The assessment made by the city of Hickory in 1928 was void. The ten-year provision of the charter was then in force; it is now in force because it has never been repealed. The act of 1931 has no repealing clause; nor does it purport to authorize an assessment for the improvement of the streets of the city. It provides that all assessments previously levied on property for the improvement of streets and sidewalks, including all proceedings taken by the governing body prior to the assessments, shall be legalized and validated. Obviously it was enacted as an enabling statute, designed to cure defects or omissions in the procedure taken by the governing bodies of cities, towns, and villages in Catawba County, who have authority to improve the streets and to levy assessments upon adjoining property. It neither empowers the municipal authorities to levy an assessment nor is effective to restore vitality to an assessment that never had life. The appeal presents the case of a law positively forbidding an assessment within a period of ten years from 1921 and of a subsequent statute purporting to legalize and validate the forbidden assessment, without repealing the prohibition or affirmatively authorizing a second assessment. In these circumstances the latter statute does not abrogate or nullify the former. This position is not inconsistent with the decision in Holton v. Mocksville, 189 N. C., 144. There the assessment was levied although no petition had been filed as required by section 2106 of the Consolidated *715 Statutes. Tbis section provides tbat every municipality shall have power, by resolution of its governing body upon petition made as provided, to cause local improvements to be made and to defray the expense by local assessment. Failure to file the petition was a fatal defect, but it was a defect of procedure remediable by legislation. An act of the General Assembly, ratified 23 February, 1923, authorized the commissioners of Mocksville to proceed with or without a petition. It did more than this. It expressly conferred upon the commissioners the power to levy special assessments for improvements then in progress or completed within two years prior to the ratification of the act and validated previous proceedings. There is a distinction, we think, between the pending case and Holton v. Mocksville, supra. In the former there is a direct prohibition against a second assessment within a stated period and an absence of subsequent authority to make the levy; in the látter not only is a second assessment authorized, but the remedial act was intended merely to cure a defect in procedure. In our opinion the act of 1931 is not a bar to the plaintiff’s recovery. Judgment Affirmed.