#### CITY OF GASTONIA v. S. G. CLONINGER, GRAY MANUFACTURING COMPANY, and W. C. ADAMS.

(Filed 21 May, 1924.)

1. Municipal Corporations — Cities and Towns — Streets—Incorporation— Highways — Statutes.

Upon the incorporation of a town, the public highways- theretofore therein existing come within the municipal control as a governmental subdivision, enlarged to meet the broader usages thereof, as streets, and the authority of other governmental agencies is excluded; and the act of 1903, including all incorporated towns in Gaston County under the provisions of the act of 1895 for the better working of the public roads and highways of the county, is in conformity with this principle.

*7663. Same — Abutting Owners on Streets Improved — Assessments—Taxation — Peculiar Benefits — Government.

Statutes prescribing tbe methods oí improving tbe streets of an incorporated city or town, regulating assessments against abutting property on tbe streets improved and particularly benefited, comes witbin tbe right of taxation vested in tbe Legislature, exercised thereunder by counties, cities and towns as governmental agencies of tbe State.

3. Same — Constitutional Law — Uniformity of Taxation.

It is, required by tbe Constitution, Art. V., sec. 33, that property shall be taxed by a uniform rule; and by Art. VII, sec. 9, that all taxes levied by any county, city or town, etc., shall be uniform and ad valorem upon all property in tbe same, except property exempt by the Constitution; and while assessments on lands abutting on streets improved are not required to be uniform with'all other subjects of taxation, in view of tbe particular benefits, such must be uniform as to all property owners witbin that class to meet tbe constitutional requirements.

4. Same — Contribution by County to Streets Improved — Deductions.

Where a county has, upon previous agreement with a city or incorporated town, paid a proportionate part of tbe cost of paving a certain street witbin tbe city, and tbe city has paid tbe balance, each, respectively, out of its general funds, tbe owners of land abutting on this street cannot maintain the position that from tbe assessment of their land abutting on tbe street improved there should proportionately be deducted tbe amount paid by tbe county, tbe same being contrary to tbe constitutional requirement for tbe uniformity of taxation in tbe same class or subject-matter. Constitution, Art. V, sec. 33; Art. VII, sec. 9.

Appeal by plaintiff from Stack, J., at January Term, 1924, of Gaston.

P. W. Garland for plaintiff.

A. G. Mangum and George W. Wilson for defendants.

Adams, J.

Tbe defendants and other property owners residing on West Franklin Avenue in the city of Gastonia presented a petition to the city council praying that the avenue be laid with an asphalt pavement between Linwood Street and the western corporate boundary, and agreed to pay one-half the total cost of the improvement, not including the cost incurred at street intersections or on the track of the street railway. The petition was granted, and it was ordered that the owners of abutting property should make all sewer, water, and gas connections on the street, and should pay one-half the total cost of the improvements, with the exceptions heretofore pointed out. For the purpose of securing uniformity it was resolved that the city should complete the work by contract or by its own forces. In pursuance of the resolution the city caused to be constructed within the designated limits of the avenue a *767sheet asphalt pavement, and assessed one-half the total cost against owners of the abutting property.

The defendants appealed to the Superior Court on the ground that the assessments computed against their property were incorrect. It appeared that the General Assembly at the session of 1899 passed an act for the better working of the public roads and highways of the State, providing therein that it should apply to Gaston County, and an act in 1903, further providing that it should be construed as applying to and including all incorporated towns in the county as well as territory outside the corporate limits. Public Laws 1899, ch. 581; Public Laws 1903, ch. 533. Thereafter the city and the county entered into an agreement or arrangement, not clearly defined, by which the county in the execution of a scheme to extend the public roads through the city agreed to pave a portion of West Franklin Avenue or to contribute a portion of its funds for that purpose. The specific proposition of the county was to pave, or to contribute an amount equal to the cost of paving, a defined strip of the avenue eighteen feet in width; but the city in fact performed the work, laying the pavement the entire width of the street, which was twenty-seven feet or more. There was evidence tending to show that the total cost of the improvement was more than $35,000; that the work done by the city was paid for out of the general city fund, and that the city was thereafter reimbursed out of the county fund to the extent of $7,091.25. The amount thus paid by the county went into the general fund of the city.

The exceptions filed by the defendants to the assessments against their property are based upon the contention that the amount contributed by the county ($7,091.25) should be deducted from the total cost of paving the avenue, and that the defendants are liable only for their proportion of the cost after the deduction is made. At the trial two issues were submitted to the jury, the first involving the question whether the defendants are entitled to have deducted from their assessments one-half the amount which the city received from the county, less the sum appropriated to improving the intersection' of streets, and the second involving the amount which the defendants are entitled to have credited on their respective assessments. The jury were instructed if they believed the evidence to answer the first issue “Yes” and the second “The total frontage of petitioners’ property is 3,889.61 feet, amounting to 91 1-6 cents per foot.” The issues were answered in this way, and his Honor thereupon adjudged that the assessments be revised, that the defendants be credited with certain sums computed on the basis of .934 per front foot, and that the city be enjoined from collecting any amount until the deductions were made. The plaintiff excepted and appealed, *768and by agreement of tbe parties tbe only question presented is’ wbetber tbe defendants are entitled to tbe deduction wbicb they claim.

It is said by Elliott in bis work on Roads and Streets, sec. 504, tbat wben a city or town is incorporated tbe public ways therein, tbat is, ways belonging to tbe public and not owned by private corporations, in tbe absence of a statute to tbe contrary, come witbin tbe jurisdiction and control of tbe municipality. Tbe new corporation comes into existence with tbe rights, powers and duties of a governmental subdivision, and as to such matters as streets, wbicb peculiarly pertain to municipal corporations, tbe authority of other governmental corporations is excluded. One reason is tbat tbe ways must, of necessity, change character, tbat tbe servitude must be much extended, and tbat tbe augmented duty must require broader authority than tbat wbicb is requisite for tbe care and control of rural roads.

We think it evident tbat tbe city’s control of its streets was in no way impaired by tbe act of 1903, supra, even if tbe act be construed as still effective, the purpose of tbe Legislature no doubt being to provide a uniform system of building roads for tbe county, subject to tbe city’s exclusive jurisdiction in tbe improvement of its streets.

In Gunter v. Sanford, 186 N. C., 452, we said tbat tbe statutes prescribing the method of improving tbe streets of a municipal corporation and regulating assessments against abutting property must be referred to tbe right of taxation, wbicb is vested in tbe Legislature, and tbat counties, cities and towns are agencies of tbe State through whom tbe power is sometimes exercised.

Tbe limitation under wbicb tbe power of taxation may be exercised is prescribed by tbe Constitution. Article Y, ‘section 3, provides tbat laws shall be passed taxing property by a uniform rule, and Article VII, section 9, tbat all taxes levied by any county, city, town or township shall be uniform and ad valorem upon all property in tbe same, except property exempted by this Constitution. See, also, C. S., 2678.

It has been held tbat tbe latter section of tbe Constitution was intended to engraft upon our organic law tbe principle of equality in taxation, but tbat a local assessment levied by a city or town need not be uniform and ad valorem upon all property. Such assessment is levied for a pecuniary benefit conferred upon land adjacent to tbe improvement, but here also there should be uniformity and equality of taxation in tbe sense tbat tbe burden imposed upon tbe property of each citizen should be proportionate to tbe advantage accruing to tbe property from such improvement. Therefore, if equality of taxation would be defeated by making tbe deduction on wbicb tbe defendants insist, tbe judgment cannot be sustained. Cain v. Comrs., 86 N. C., 8; Shuford v. Comrs., ibid., 552; Comrs. v. Comrs., 92 N. C., 180; Busbee v. *769 Comrs., 93 N. C., 144; Raleigh v. Peace, 110 N. C., 32, 38; Harper v. Comrs., 133 N. C., 106; Sanderlin v. Luhen, 152 N. C., 739; Tarboro v. Staton, 156 N. C., 504; Justice v. Asheville, 161 N. C., 62; Forbes v. Tarboro, 185 N. C., 59.

Tbe principle of equality will be defeated if tbe credit demanded by tbe defendants will result in discrimination against any of tbe other taxpayers of tbe city. "We are of opinion tbat tbe deduction would result in discrimination. Tbe evidence is susceptible of tbe construction tbat tbe entire cost of making tbe improvement was paid out of tbe general fund of tbe city, and tbe contribution made by tbe county was applied pro tanto to replenishing the city treasury. Tbe general fund, of course, was derived from taxes collected from all tbe taxpayers of tbe city.

If, on tbe other band, tbe amount contributed by tbe county be considered a direct payment for tbe improvement as if tbe work bad been done by tbe county, tbe county fund likewise was derived from taxes collected from tbe taxpayers of tbe county, including those residing in or having property in tbe city. However tbe payment may be considered tbe deduction allowed in tbe judgment would work a discrimination against taxpayers of tbe city other than tbe defendants, and would infringe tbe general principle of equality in taxation.

Section 16 of tbe act set out in Gunter v. Sanford, supra, directed tbe application of tbe money paid by tbe Highway Commission, but as we understand it, this section was merely a legislative declaration of tbe principle we have referred to; and in Shute v. Monroe, ante, 676, tbe legal right of deduction was not presented for decision.

We think there was error in tbe directed instruction to tbe jury.

Error.