Davis v. City of Lynchburg

Lacy, J., delivered the opinion of the court. This suit was brought to recover of the city of Lynchburg the sum of $99, the amount of an assessment made by the city against the plaintiff, who is the owner of a lot fronting 120 feet oü Grace street in said city. The assessment was made under the seventh section of the city charter, which provides that, whenever any new street shall be opened, any street graded or paved, or any culvert or other public improvement made, the city council may apportion the expense between the city and the owners of the real estate benefited thereby, and may order that the whole expense shall be borne by the owners of such real estate, and to be collected as city taxes; but this improvement must not be made except upon the petition of a majority of the owners of such real estate, or unless, in ordering such improvement, three-fourths of said council shall concur; which is in accordance with general ordinance Yo. 1. [870] When the improvement in question was made, it was done on the recommendation of the street committee of the city council, and ordered by a unanimous vote of the council. The plaintiff in error claims that this assessment is in violation of the fourteenth amendment to the constitution of the United States, because no provision is made for the person to appear and contest the proceedings, and that he is thus deprived of his-property without due process of law. As we have seen, the assessment is expressly authorized by the legislature in the seventh section of the charter. That the-legislature had the power to authorize these assessments is settled. Norfolk v. Ellis, 26 Gratt., 224. When this work was-done the cost was estimated per foot. Under the general ordinance the city bore one-half, and each lot-owner on either side-one-fourth, and the share of the plaintiff was thus ascertained to be $99, her front being 120 feet. This regular proceeding-was reported duly and regularly to the council, and then approved. LTo complaint was ever made to the council by any person that anything was done irregularly or erroneously,, while the work progressed for months, under the provisions of the general public law know to all. It is claimed that the fourteenth amendment to the constitution of the United States invalidates the ordinance, and everything which has been done under it because the ordinance does-not provide that the owners shall be served with notice of the assessment and given a time and a place to show cause against it. There are decisions cited by the learned counsel for the plaintiff in error which seem to hold these views. Stuart v. Palmer, 74 N. Y., 188; Santa Clara Co. v. Railroad Co., 18 Fed. Rep., 385; Mulligan v. Smith, 59 Cal., 206; Gatch v. City of Des Moines, 3 Am. & Eng. Corp. Cases, 622; Brown v. City of Denver, 3 Am. & Eng. Corp. Cases, 631. But as an original question it is obvious that all possible notice is given by the progress of the work itself, and under our system of laws every citizen is held charged with notice of the public law871 This question has been heretofore considered and decided by this court in the case of Norfolk City v. Ellis, 26 Gratt., 227, opinion of Staples, J., and should not now be considered an open question here. This court said in that case: “ These assessments are not founded upon any idea of revenue, hut upon the theory of benefits conferred by such improvements upon the adjacent lots. It is regarded as a system of equivalents. It imposes the tax according to the maxim, that he who receives the benefit ought to bear the burden, and it aims to exact from the party assessed no more than his just share of that burden, according to an equitable rule of apportionment.” Judge Staples saying, speaking for the court: “ My understanding has always been that if the mode of assessment is regular and constitutional, if the power to levy'the tax exist in that class of cases, the courts are not authorized to interfere merely because they may consider the taxation impolitic, or even unjust and oppressive. In such case the remedy is in the legislature, and not in the judicial department. Oases without number might he cited in support of this principle. People v. Lawrence, 41 N. Y., 137; Bank v. Billings, 4 Pet., 514; Langhorne v. Robinson, 20 Gratt., 661, where the authorities are reviewed by Judge Joynes.” In the case before us it appears that the city council of Lynchburg, for the purpose of grading and paving its streets, has adopted the system of assessments by the front foot on lots adjacent to the street to be improved. The same system has been adopted in other towns and cities of the United States, and has been generally recognized by the courts as constitutional and valid. It is sustained by the highest courts in Yew York, Ohio, Michigan, Wisconsin, Missouri,- California, Kansas, Connecticut, and Pennsylvania. Sedg. St. & Const. Law, 502-5, and cases cited in Cooley, Const. Lim., 507. Railroad Co. v. City of Lynchburg, 81 Va., 473. It must he held to be a settled principle in this State that such assessments, made under the authority of the public law, are valid [872] and binding, and whatever remedy is to be applied, if any, must come from the law-making power, and not from the courts. We cannot be unmindful of the salutary principle stare decisis. It follows that the judgment of the corporation court of Lynchburg is not- erroneous, and the same will be affirmed. Judgment affirmed.