City of Raleigh v. Mercer , 271 N.C. 114 ( 1967 )

155 S.E.2d 551 (1967) 271 N.C. 114

CITY OF RALEIGH, Petitioner,
v.
Scott G. MERCER, Respondent.

No. 534.

Supreme Court of North Carolina.

July 24, 1967.

Emanuel & Emanuel, by Robert L. Emanuel, Raleigh, for respondent appellant.

Paul F. Smith and Donald L. Smith, Raleigh, for petitioner appellee.

PARKER, Chief Justice.

The city of Raleigh's motion to dismiss the proceeding because the complaint does not state facts sufficient to constitute a cause of action is in effect a demurrer, Johnson v. Graye, 251 N.C. 448, 111 S.E.2d 595, and a demurrer presents squarely for decision the sufficiency of the pleadings, because the motion in this case for the purpose admits the truth of factual averments well stated in the statement of the case on appeal, and all relevant inferences as may be reasonably deduced therefrom. But it does not admit conclusions of law. 3 Strong's N.C. Index, Pleadings, § 12.

It appears that respondent has taken the proper statutory procedure to perfect his appeal to the Superior Court. G.S. § 160-245. At least petitioner makes no contention to the contrary.

Respondent's appeal here, inter alia, is based upon his assertion that his property will not benefit from the proposed assessment, and also that there is no necessity for the sewer line.

The city of Raleigh was fully empowered to establish the assessment district and to assess the burdens in proportion to the benefits. G.S. § 160-239; G.S. § 160-241, Local Modification City of Raleigh, Chapter 1056, Session Laws 1965; Durham v. Proctor, 191 N.C. 119, 131 S.E. 276.

In Raleigh v. Peace, 110 N.C. 32, 14 S.E. 521, 17 L.R.A. 330, the Court held as correctly summarized in the third headnote in our Reports:

"The power to levy such assessments is derived solely from the Legislature, acting either directly or through its local instrumentalities, and the Courts will not interfere with the exercise of the discretion vested in the Legislature as to the necessity for, or the manner of making such assessments, unless there is a want of power or the method adopted, for the assessment of the benefits is so clearly inequitable as to offend some constitutional principle."

In Town of Tarboro v. Staton, 156 N.C. 504, 72 S.E. 577, the recognized principle is stated as follows in the second headnote in our Reports:

"While these assessments are upheld on the theory of special benefits conferred, and which bear some reasonable relation to the burdens imposed, authority to make them is referred to the sovereign power of taxation, which is primarily and as a rule exclusively a legislative power; and where the Legislature, or a municipal government, exercising legislative power expressly conferred for the purpose, has provided for a local improvement of this character, its action is conclusive as to the necessity for the improvement; and in establishing general rules by any of the recognized methods, imposing special assessments for its construction and maintenance and in applying these rules or methods to the property of an individual owner, the courts are permitted to interfere only in rare and extreme cases, in which it is clearly manifest that the principle of equality has been entirely ignored and gross injustice done."

In Felmet v. Town of Canton, 177 N.C. 52, 97 S.E. 728, it is said:

"The right of municipalities to make these assessments for public, local purposes, when acting under legislative authority properly conferred, has been very broadly upheld in this state, extending to any of the recognized methods of procedure and apportionment, and including both the front-foot rule, as well as the creation of local assessment districts. Being, as it is, referred to the power of taxation, it is very largely a matter of legislative discretion, usually held to be conclusive as to the necessity for the improvement, and, in respect to the method of apportionment as well as the amount, it only becomes a judicial question in cases of palpable and gross abuse."

Ample provision was made for a hearing by respondent if he desired to protest, and such was accorded. Respondent does not contend that the assessment against him for the construction of a sewer main outfall line was excessive or unreasonable. The fact that respondent owns a lot and residence which he uses as a home and not for economical development, and that said premises by the nature of the terrain are not suitable for subdivision, and that said residence has been served by adequate sewer facilities for many years and a municipal sewer line is at present in the public street adjoining said premises, and the further fact as alleged by him that the construction of the sewer main outfall line is not for the public purpose of the citizens which can readily be served by deepening and improving existing sewer facilities lying west of his property in the city of Raleigh by means of extracting funds by assessment of lands of respondent, and that the sewer line for which the sewer assessment is levied is for the purpose of draining raw untreated sewage from lands lying to the north and west of respondent's property and not for the purpose of serving his said properties in any manner, and that his properties are not to be benefited in any manner, are not allegations of arbitrariness, abuse of discretion, or mala fides on the part of the City Council, and are not grounds for holding the assessment against him null and void.

The statement of the case on appeal alleges in substance the Special Sewer Assessment Roll No. 528 is violative of Article V, Section 3 of the State Constitution, "for that the same constitutes a special tax and assessment on respondent, is discriminatory against him [Mercer] as distinguished from all other property owners of the city of Raleigh, and is not uniform, just and equitable." In our opinion, and we so hold, respondent is entitled to offer evidence in respect thereto, if he can, for a determination as to whether or not the assessment against him was so inequitable and so unjust and so discriminatory as to offend the provisions of Article V, Section 3 of the State Constitution. It is only practical equality as is reasonably attainable under the circumstances, and not absolute mathematical accuracy that is to be expected in a matter of this kind. On the record, as now presented, we think the city of Raleigh was entitled to have the assessment against respondent's property approved unless it is prohibited by Article V, Section 3 of the State Constitution.

In the statement of the case on appeal he alleges in substance that Special Sewer Assessment Roll No. 528 is violative of the Fourteenth Amendment to the United States Constitution for the same constitutes the taking of property without due process of law. In the statement of the case on appeal it appears that the city of Raleigh on 24 November 1964 in Special Proceeding No. 9545 commenced a condemnation proceeding against respondent for the purpose of condemning a sanitary sewer main outfall line along the entire western and southern boundaries of said properties in order thereby to drain sewage from the entire neighborhood to the west of said Mercer's lands. Mercer filed appropriate answer to said proceeding, denying among other things the public necessity for said lines, and alleging on information and belief that the city would undertake thereafter to burden said property additionally, by imposing upon it assessments for said sewer installation and construction. According to the record before us, there is nothing to indicate that that suit has been terminated. It is elementary learning that the requirement that just compensation be paid is guaranteed both by the Federal Constitution (Fourteenth Amendment) and the State Constitution (Article I, Section 17), and the exercise of the power is always subject to the principle that there must be definite and adequate provisions made for reasonable compensation to the owner. 2 Strong's N.C. Index, Eminent Domain, § 1.

This is said in 27 Am.Jur.2d, Eminent Domain, § 372:

"The question whether benefits accruing to property which has been damaged, or to property remaining after part thereof has been taken, for the construction of a public improvement, may be set off against the compensation for the damage or for the part taken, in a situation in which the property remaining or damaged is subject to a special assessment, may arise in a great variety of situations, since the assessment of such benefits may take place either in the condemnation proceeding or in a separate proceeding, and, in the former case, benefits and damages may be assessed either separately, or the balance may be struck and assessed, while in the latter case, the condemnation proceeding may precede the assessment proceeding, or vice versa. But there is one safe standard which applies irrespective of the situation in which the question arises—that is, benefits cannot be deducted if, in a particular situation, to allow such deduction would in effect compel the condemnee to pay twice for the same benefit."

We cannot determine from the record as to whether this condemnation suit instituted by the city has been terminated. In this state of the record, we think the safe thing to do is to reverse the judgment dismissing the case and to send the special proceeding back for a hearing of evidence in order to insure that respondent receives reasonable compensation for his land taken for the construction of the sewer main outfall line.

Respondent contends in his brief the city of Raleigh is "estopped from contending that the premises of respondent are benefited from the installation of sewer facilities which are the predicate of Sewer Assessment Roll No. 528." We think it is not wise and not safe for us to determine this point, for the simple reason we are dealing with a statement of case on appeal as set forth, pursuant to G.S. § 160-245, which has not been replied to by the city.

As has been said above, plaintiff's motion to dismiss is in effect a demurrer. The rule is well established with us that upon a demurrer a pleading will be liberally construed with the view to substantial justice between the parties, giving the pleader the benefit of every reasonable intendment in his favor, G.S. § 1-151, and a demurrer will not be sustained unless the pleading is wholly insufficient or fatally defective. 3 Strong's N.C. Index, Pleadings, § 12. If a demurrer is overruled, the admission of the facts properly pleaded ends forthwith. Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384.

The judgment below dismissing the case is

Reversed.