Opinion
14562
November 10, 1937.
Before MERCHANT, J., County Court, Spartanburg, October, 1936. Reversed.
Action for an injunction by Mrs. Louise H. Blake against the City of Spartanburg and others. Judgment for defendants, and plaintiff appeals.
Report of Wilton H. Earle, Special Master, follows:
This is an action for an injunction to restrain the City of Spartanburg from collecting a resurfacing assessment on North Church Street, said city, same being ratified by the city council of Spartanburg, February 6, 1928.
The action was commenced by service of summons and complaint on which a rule to show cause and restraining order were issued, and same was referred to me as Special Master to take the testimony and report my findings of fact as well as conclusions of law to the Court. The testimony, which is submitted herewith, together with exhibits, was taken in the city hall of Spartanburg, October 27, 1936.
The complaint alleges that plaintiff is the owner of property abutting on North Church street in Spartanburg, and that the city claims a lien against the premises securing the payment of an unpaid paving assessment in the amount of $99.16, with interest from February 6, 1928. Plaintiff alleges that she received no notice of the assessment until receipt of a letter by her husband dated June 27, 1936; that the street was resurfaced about 8 years ago, and that plaintiff did not sign any petition, nor did she live on the premises, nor know of the resurfacing. Plaintiff alleges that the assessment is void and does not constitute a lien for numerous irregularities, and, among others, that there was no written petition signed by two-thirds of the property holders abutting on the street; that the city council did not pass proper ordinances; nor was notice given the plaintiff. Plaintiff also alleges that the assessment is void because it is in violation of the State Constitution in the particulars set out in the complaint.
The constitutional grounds were not argued before me, but I have carefully considered same and find there is no merit in plaintiff's objection. It seems to me that Article 10, Section 14, of the Constitution of 1895 gives the City of Spartanburg authority to make the assessment.
There was much testimony taken as to the number of property holders who signed a petition, and all other matters connected with the assessment, but under my view it is unnecessary to go into this for the reason that the plaintiff is clearly estopped from denying the validity of the original assessment.
The testimony is that she is a resident of Spartanburg, lived in the city limits, and that North Church street, on which the city claims a lien against plaintiff's property, was resurfaced about 8 years ago.
I think that a property holder who thinks herself injured by a wrongful assessment, if she has knowledge of what is being done, is under obligation to act promptly in interposing her objections. The property holder who makes no objection, but waits until the improvement has been made and her property has received the benefit therefor, will not be permitted to raise objections after 8 years which will render the assessment invalid.
While the proof is that the plaintiff did not have any actual knowledge of the assessment, I think that a Court should hold that she had constructive knowledge after a period of 8 years, and after having received the benefits from the paving. Our Court has passed on this question in two cases: Ballentine v. City of Columbia, 129 S.C. 410, 124 S.E., 643; and Platt v. Columbia, 131 S.C. 89, 126 S.E., 523, 525.
As Judge Marion, in the Platt case, states: "The assessment upon the abutting property owner for a public improvement of this character is laid upon the valid theory of benefit to the property of the owner. One may not in good conscience stand silently by, see such an improvement made, reap the benefit, and then be permitted to escape payment of the reasonable `price' upon the ground that there was illegality in the proceedings of the governmental authorities, when he knew of such illegality, or by the exercise of reasonable diligence, could have known of it in time to protest or take appropriate action in the Courts to restrain the prosecution of an unlawful undertaking on the part of the public authorities."
It appears to me that, after the lapse of the long period of time which has ensued since the City of Spartanburg repaved North Church street, the plaintiff is clearly estopped at this time from interposing any objection as to the paving assessment of 1928, even assuming that said objection would have been meritorious if interposed promptly by plaintiff.
The only serious question involved in this case which gives me any concern is that the statute of limitations. The ratification of the assessment was on February 6, 1928, Section 3 of the Act of February 17, 1911 (27 St. at Large, p. 558), provides with reference to assessments: "That such lien shall continue from the date of entry on such book until the expiration of five years from the date when final payment is due and payable, unless sooner paid."
Section 1 of the same Act (page 557) provides that: "Times and terms of payment and rates of interest on deferred payments of assessments by lot owners may be agreed upon as prescribed by ordinance."
Section 3 of the ordinance of the City of Spartanburg, of March 24, 1913 (Codification of Ordinances of Spartanburg of force August 20, 1924), page 125, provides: "Said lien shall continue from the date of entry of the same on such assessment lien book until the expiration of five years from the date when the final payment is due and payable unless sooner paid."
Section 4 of the same ordinance provides: "4. When said assessment roll has been ratified in the manner above prescribed, each owner of property so assessed may, within thirty days after such ratification, pay into the city treasury the full amount of said assessment, or shall have the right to have such assessment divided into five equal payments, the first instalment thereof shall be due thirty days after the date of the ratification of the assessment roll by the city council, and the remaining instalments shall be due in equal amounts, due respectively in one, two, three and four years from the date of the first instalment, with interest on such instalments at the rate of six per cent. per annum, payable annually from date until paid in full."
Section 6 of the same ordinance provides: "* * * Owners of the property abutting improvements have acknowledged their indebtedness to the city by the payment in cash of one-fifth of the total assessment against their property, as required by law, and will accept from the city council of Spartanburg, S.C. as provided by an Act of the Legislature of said State, the privilege of paying the amount still due in four equal annual instalments, with interest at the rate of six per cent. per annum."
The narrow legal question presented is: Does a lien for the paving assessment under the above statute and ordinance expire on March 7, 1933, which is 5 years and 30 days from the ratification of the assessment, or does it continue for 9 years and 30 days from the date of the ratification?
A lien must be expressly created and cannot be enlarged by construction. Cooley on Taxation, § 1230.
Under the statute, the city does not have the right to divide the assessment into installments, but only to pass an ordinance as to deferred payments, which payments may be agreed upon by the city and the property holder. It seems to the Special Master that the part quoted of Section 1, of the Act of 1911, clearly contemplates there must be an agreement between the property holder and the city.
The sections of the ordinance quoted give the property holder the option of paying the entire sum within 30 days, or to make a request that the assessment be divided into installments. The lot owner acknowledges the assessment and the indebtedness to the city in consideration of the privilege of paying in installments.
When the property holder makes no request for installments, the lien of the city is not extended.
Our Court has never passed on this question, but the Kentucky Court has decided two cases that are very similar to this case, and it appears to me that the reasoning in those cases is sound and it clearly sets forth a proper construction of the statute and ordinance involved in this case.
The cases of Lexington v. Wollfolk, Ky., 392, 128 S.W., 104, and Lexington v. Crosthwaite (Ky.), 78 S.W., 1130, hold:
Where the landowner requests the privilege of paying an assessment in instalments over a period extending beyond the limitation period, according to an optional plan provided by statute, he cannot then set up the statute of limitations as a bar to an action for an instalment due after the limitation period.
But if the landowner makes no request and is not estopped from denying the making of such request, the mere adoption by the city of the instalment plan will not operate to extend the statutory limitation period.
If, on the other hand, he fails to object to the city's assumption that such a request has been made, and pays a number of such instalments he is estopped from setting up the statute as a bar to actions for later instalments.
The Kentucky Court decided that, in the absence of an election on the part of a lot owner to pay the apportionment on the installment plan, the lien is not extended, but is valid only to the extent of the statutory period. While the opinion of the Kentucky Court is not binding on this Court, it is certainly very persuasive, and the Kentucky statute is practically identical with that that is being construed here.
The defendant at the conclusion of the case made a motion for a directed verdict on the ground, among others, that this Court does not have jurisdiction of the cause because the Court has jurisdiction only to an amount which involves the sum of $3,000.00 or less. This question was not argued, but I find there is no merit in same.
The Special Master, therefore, holds: (1) That this Court has jurisdiction of this cause, and that there is no valid constitutional objection interposed to the assessment in this case; (2) that irrespective of any irregularities which might have been shown by the testimony, that the plaintiff in this case is clearly estopped from contesting the assessment of the City of Spartanburg for the resurfacing of North Church street on or about February 6, 1928; and (3) that the statute of limitations has barred the lien of the assessment and that said lien expired March 7, 1933, which was 5 years and 30 days after the ratification by the city council of Spartanburg of said assessment of February 6, 1928.
It is, therefore, the recommendation of the Special Master that the City of Spartanburg, its officers and agents, be permanently enjoined from collecting, or attempting to collect, the assessment ratified February 6, 1928, of $99.16, with interest, against the property of the plaintiff herein.
Messrs. DePass DePass, for appellant, cite: Payment of assessment by installments: 44 C.J., 3419; 227 Pac., 482; 70 S.E., 950. As to when action accrued for failure to make payments: 183 Pac., 276; 44 C.J., 3494; 29 A.L. R., 1098; 189 Pac., 512; 187 N.W., 599. Liens: 138 S.C. 187; 96 Pac., 1; 61 C.J., 1210: 44 C.J., 3396 and 3499; 128 S.W. 104; 78 S.W. 1130; 10 S.W.2d 816.
Messrs. Odom Bostick and Esten C. Taylor, for respondents, cite: Lien: 141 S.C. 119; 44 C.J., 805. Estoppel: 167 S.C. 534; 166 S.E., 634.
November 10, 1937. The opinion of the Court was delivered by
This action is here on appeal, on exceptions to the decree of Hon. Arnold R. Merchant, Judge of the Spartanburg County Court, who decided the issues involved in the case adversely to the contentions of the plaintiff.
The action was brought to permanently enjoin the City of Spartanburg, and others, from collecting a paving assessment lien on property on North Church Street, in the City of Spartanburg, belonging to the plaintiff.
The cause was referred by consent to the Honorable Wilton H. Earle, Esq., as Special Master, to take the testimony and report his findings of law and fact. The Special Master decided certain issues in favor of the defendants, from which no appeal was taken by the plaintiff, but held against the defendants upon the question of the duration of the city's paving assessment lien. On this point he found that the claim of the city is barred by the statute of limitations. The defendants filed exceptions to the report on this issue, which were heard by the Judge of the County Court, who reversed the finding of the Special Master, and held that the lien had not expired.
We have carefully examined the record and the law bearing upon the issue presented. In our opinion the report of the Special Master, which will be reported, correctly disposes of the questions involved in the case. We adopt it as the opinion of this Court. The exceptions are sustained.
Judgment reversed.
MR. CHIEF JUSTICE STABLER AND MESSRS. JUSTICES BONHAM and BAKER concur.
MR. JUSTICE CARTER did not participate on account of illness.