
    CITY OF SALISBURY v. K. C. AREY, Trustee of the Estate of D. L. AREY; CLARENCE H. SUMMERS and Wife, PHEBE AREY SUMMERS; W. B. AREY and Wife, HELEN R. AREY; HARRY L. AREY and Wife, GRACE K. AREY; HAROLD A. ISENHOWER and Wife, MILDRED N. ISENHOWER; ALBERTA I. FISHER and Husband, REUBEN L. FISHER; HAROLD A. ISENHOWER, Administrator of the Estate of B. N. ISENHOWER; HAROLD A. ISENHOWER, Administrator of the Estate of LOTTIE AREY ISENHOWER; K. C. AREY and Wife, SUSIE H. AREY; JAMES BUSTARD and L. C. HORNE, Administrators c. t. a. of the Estate of E. C. AREY.
    (Filed 3 May, 1944.)
    1. Municipal Corporations § 34—
    The provisions of G. S., 160-92, giving the property owner thirty days in which to pay assessments for local improvements, in cash without interest, or the election to pay the same in installments, are for the benefit of the property owner and, when exercised, become mandatory upon the municipality; but, when tbe property owner remains silent and neither pays in cash nor elects to pay in installments, the option passes to the. municipality to foreclose or to collect in installments.
    2. Same—
    No authority, by way of resolution or ordinance of the governing body of a municipality, is required to divide an assessment for local improvements into installments in accordance with the terms of the original resolution.
    3. Same—
    A resolution of the governing body of a municipality, providing for an extension of the payments of an assessment for local improvement in installments, which is contrary to the statute, G. S., 160-94, is defective but not void, and may be amended by a subsequent resolution to conform to the statutory requirements.
    4. Municipal Corporations § 7—
    The power to enact ordinances and resolutions necessarily implies power in the same body to amend them.
    
      5. Municipal Corporations § 34—
    The lien of a municipality, for an assessment for public improvements, is not invalidated by an extension resolution providing a new series of installment payments, where the sums of the new installments in the aggregate exceed the amount actually due at the time of the extension. Differences may be adjusted under G. S., 160-90.
    6. Limitation of Actions §§ 2a, 3—
    Where a new series of installment payments of an assessment for local improvements is provided under G. S., 160-94, the ten-year statute of limitations begins to run on each new installment as it becomes due.
    Winborite, J., concurring.
    Barnhiix, J., joins in concurring opinion.
    Appeal by defendants from Armstrong, J., at February Term, 1944, of RowaN.
    Tbe pertinent parts of tbe agreed statement of facts, submitted to tbe court below for tbe determination of tbe questions involved in' tbis action, are as follows:
    “I. Tbat tbe plaintiff is a municipal corporation, duly chartered, organized and existing under tbe laws of tbe State of North Carolina.
    “II. Tbat, pursuant to Section 6, Chapter 56, Public Laws of 1915, now C. S., 2708, tbe governing body of plaintiff, on May 5, 1925, passed an original resolution providing for, certain street paving improvements and tbe manner of payment of tbe assessment hereinafter set forth, and said resolution included tbe following:
    “ 'That tbe owners of tbe abutting property affected hereby shall pay tbe amount assessed against their property in cash upon completion of tbe work and confirmation of tbe assessment roll, as provided in said article, or in ten equal annual installments bearing interest at tbe rate of 6% per annum from tbe date of tbe confirmation of tbe assessment roll.’
    “III. That pursuant to said resolution, tbe plaintiff duly and lawfully levied a street paving assessment against tbe real estate described in paragraph 3 of tbe complaint, wbicb was then and is now owned by tbe defendants; that said assessment was in the principal sum of $952.02, was confirmed on tbe 6th day of April, 1926, after due advertisement and notice of tbe confirmation bearing thereon, no objection was filed to said assessment and no appeal taken therefrom.
    “IV. That tbe defendants filed no objection to tbe aforesaid assessment, but did not consent thereto, and did not elect, in writing, to pay tbe same in installments as provided by law.
    “V. That upon tbe failure of tbe defendants to elect, in writing, to pay tbe aforesaid assessments in installments, and upon tbe failure of tbe defendants to pay said assessments in cash within thirty days after a notice of said assessment was published in accordance with C. S., 2717, tbe governing board of tbe plaintiff took no further action on said assessment, by way of resolution or ordinance, but tbe official or agent of plaintiff fixed with tbe duty of accounting for and collecting tbe same entered said assessment upon tbe assessment ledger of plaintiff as payable in ten equal annual installments, with interest at 6% per annum from date of confirmation, April 6, 1926, tbe first of such installments, in tbe amount of $95.20, to become due tbe first Monday in October, 1926.
    “VIII. That on May 31, 1935, pursuant to tbe authority of Chapter 126 of tbe Public Laws of 1935, now C. S., 2717-b, tbe governing body of tbe City of Salisbury adopted tbe resolution shown by Exhibit ‘A’ attached to tbe complaint, and on September 13, 1935, amended said resolution as shown by said exhibit.
    “IX. That as of October 1, 1935, tbe aforesaid principal sum of $952.02, was unpaid, with interest amounting to $541.85, a total of $1,493.97, but pursuant to tbe aforesaid resolution of May 31, 1935, as amended on September 13, 1935, tbe official or agent of plaintiff having charge of said assessments, accounting therefor and collecting tbe same, caused said assessment to be charged against tbe defendants, and entered in tbe assessment ledger, in a new principal amount of $1,736.96, payable in ten equal annual installments of $173.70, tbe first of wbicb was due on October 1, 1936, wbicb was admittedly erroneous as to tbe amounts actually due.
    
      “X. That the defendants made no objection to the aforesaid resolution or entries, but gave no consent thereto.”
    PlaiNtiff’s Exhibit “A”.
    “Resolution of the City Council of the City of Salisbury Relating to Extension of Time for Payment of Special Assessments and Adopted on May 31, 1935.
    “Be It Resolved by the City Council of the City of Salisbury, North Carolina, that all installments of Special Assessments heretofore levied by the City of Salisbury for local improvements, whether due or not due, together with all accrued interest thereon, be and they are hereby rearranged into a new series of ten equal installments the first of which extended installments shall be due and payable on the first Monday in October of the year 1935, and each of the remaining installments shall become due and payable serially on the first Monday in October in each year thereafter, so that the last of such extended installments shall be due and payable on the first Monday in October in the year 1944.
    “Be It Further Resolved, that any installment or installments, together with accrued interest and costs, extending in accordance with the provisions of this resolution shall bear interest at the rate of 6% per annum from October 1, 1935.
    “Pisovided, that nothing in this resolution shall prevent the payment of any installment or installments or interest at any time.”
    “Resolution of the City Council of the City of Salisbury Amending the Foregoing Resolution and Adopted on the 13th Day of September, 1935.
    “Be It Resolved by the City Council of the City of Salisbury, that the resolution entitled ‘A Resolution Providing for the Extension of the Special Assessments,’ heretofore adopted by the City Council on May 31, 1935, be and the same is hereby amended by striking out the date ‘1935’ appearing at the end of the seventh line and inserting the date ‘1936’ in lieu thereof.
    “Be It Further Resolved that the aforementioned resolution be further amended by striking out the date ‘1944,’ appearing at the end of the first paragraph therein and inserting in lieu thereof the date ‘1945.’ ”
    Judgment was entered to the effect that upon the failure of the defendants to pay said assessment in cash within thirty days after notice of said assessment was published in accordance with C. S., 2717, G. S., 160-92, the governing body of the city of Salisbury had the legal right and power to make said assessment payable in ten equal annual installments with interest at the rate of 6% per annum from the date of confirmation, to wit, 6 April, 1926, and tbe said assessment having been made so payable by tbe municipality and having been extended by the plaintiff in accordance with the law, the plaintiff’s cause of action is not barred by the ten-year statute of limitations, and that there is owing and due on the assessment levied by the plaintiff against the property of the defendants, described in the complaint, the sum of One Thousand Four Hundred Ninety-Three and 97/100 Dollars, with interest thereon at the rate of 6% per annum from 1 October, 1935, until paid. The aforesaid amount is adjudged a lien on the specific property against which the said assessment was levied. A commissioner was appointed and directed to sell the lands described in the complaint, for the satisfaction of the judgment and the costs were taxed against the defendants.
    From said judgment, the defendants appeal to the Supreme Court, assigning error.
    
      Linn & Linn and J. W. Ellis for plaintiff.
    
    
      Walter H. Woodson, Jr., and Walter II. Woodson for defendants.
    
   DeNny, J.

We think the questions raised on this record for our consideration and determination may be stated as follows:

1. Where a municipality confirms a street assessment for local improvements, in accordance with the provisions of Chapter 56, Public Laws of 1915, and the property owner fails to pay the assessment in cash within the thirty-day period prescribed by Gr. S., 160-92 (O. S., 2717), and does not request the privilege of paying in installments, as provided therein, may the municipality, without further action, divide the assessment into installments, in accordance with the terms of the original resolution authorizing the improvements ?

2. Are the resolutions of the city council of the city of Salisbury, as set forth in the agreed statement of facts herein, sufficient to extend the unpaid assessment or the installments thereof, into a new series of ten equal installments, as authorized by ch. 126, Public Laws of 1935 (now as amended G-. S., 160-94; O. S., 2717 [b] ) ?

3. Does the entry of the new series of installments, authorized by an extension resolution, which in the aggregate exceed the amount actually due, vitiate the .lien of the city and relieve the property owner from the payment of the correct amount?

4. Is the original assessment barred by the ten-year statute of limitations ?

On the first question the appellants contend that in the absence of a written request from the property owner to be permitted to pay the assessment in installments, the city had no authority to divide the assessment into installments, but was limited to a foreclosure proceedings for the collection of the entire amount, which proceedings could have been instituted at any time within ten years after the expiration of thirty ■days from the confirmation of the assessment roll on 6 April, 1926, and rely upon the following authorities: Lexington v. Crosthwait, 25 Ky. L. R., 1898, 78 S. W., 1130; Lexington v. Woolfolk, 138 Ky., 392, 128 S. W., 104; Hubbell v. Hammil, 187 Iowa, 1083, 175 N. W., 41; Schaefer v. Hines, 56 Ind., A. 17, 102 N. E., 838; Cleveland v. Spartanburg, 185 S. C., 373, 194 S. E., 128; and Blake v. Spartanburg, 185 S. C., 398, 194 S. E., 124; 114 A. L. R., 395. An examination, however, of these authorities discloses that in each case an agreement between the city and the landowner was required, either by statute or by the ordinance authorizing the local improvements, before the city could ■divide the assessment into installments. There is no such requirement in our statute or in the preliminary resolution authorizing the local improvements for which the original assessment involved herein was levied. The statute requires the preliminary resolution to designate “the terms and manner of the payment.” G. S., 160-83; O. S., 2708; and the resolution provided: “That the owners of the abutting property affected hereby shall pay the amount assessed against their property in ■cash upon completion of the work and confirmation of the assessment roll, as provided in said article (see. 6, ch. 56, Public Laws of 1915, G. S., 160-83; O. S., 2708), or in ten equal annual installments bearing interest at the rate of 6% per annum from the date of the confirmation ■of the assessment roll.”

The pertinent part of G. S., 160-91; O. S., 2716, is as follows: “The property owner or railroad or street railway company hereinafter mentioned shall have the option and privilege of paying for the improvements hereinbefore provided for in cash, or if they should so elect and give notice of the fact in writing to the municipality within thirty days after the notice mentioned in next succeeding section, they shall have the ■option and privilege of paying the assessments in not less than five nor more than ten equal annual installments as may have been determined by the governing body in the original resolution authorizing such improvement. . .' . The whole assessment may be paid at the time of paying any installment by payment of the principal and all interest accrued to that date.”

We think the foregoing provisions in the above statute were enacted for the benefit of the property owner, giving the owner a period of thirty •days from the date notice is given as required by G. S., 190-92; O. S., 2717, in which to pay the assessment in cash, without interest; or, if he should so elect and give notice in writing to the municipality within said period of thirty days, that he desires to pay his assessment in installments, then it becomes mandatory upon the city to permit such property owner to pay Ms assessment in installments. But, where the property owner remains silent and neither pays in cash within the thirty-day period nor signifies in writing his election to pay in installments, the option passes to the municipality to proceed to foreclose and collect the entire assessment or to collect the assessment in installments, as provided in the original resolution authorizing the improvements.

Upon the facts presented on this record, the governing body of the city of Salisbury had the same right to waive the failure of the property owner to pay the assessment in cash and to collect the assessment in installments in accordance with the terms and provisions of the resolution authorizing the improvements, that it has to waive the acceleration provision contained in the same statute in cases of default, which provision is as follows: “. . . In case of the failure or neglect of the property owner ... to pay any installment when the same shall become due and payable, then and in that event all of the installments remaining unpaid shall at once become due and payable and such property -.. . . shall be sold by the municipality under the same rules, regulations, rights of redemption and savings as are now prescribed by law for the sale of land for unpaid taxes.” G. S., 160-91; C. S., 2716. Our Court has held that the above acceleration provision was enacted for the benefit of the municipality and may be waived without starting the running of the statute of limitations as to unmatured installments. Farmville v. Taylor, 208 N. C., 106, 179 S. E., 459, which decision is in accord with the following decisions from other jurisdictions: Town of Cheraw v. Turnage, 184 S. C., 76, 191 S. E., 831; Mayor and Aldermen of the Town of Morristown v. Davis, 172 Tenn., 159, 110 S. W. (2d), 337; 113 A. L. R., 1164; City of Jackson v. Willett, 178 Tenn., 605, 162 S. W. (2d), 367; Barber Asphalt Paving Go. v. Meservey, 103 Mo. App., 186, 77 S. W., 137; Voorhees v. North Wildwood, 75 N. J. L., 463, 68 A., 175; Middleboro v. Terrell, 259 Ely., 47, 81 S. W. (2d), 865.

In the case of Jackson v. Willett, supra, the Supreme Court of Tennessee was considering the identical question we have under consideration, except the city of Jackson was under no obligation to grant the property owner the privilege of paying on the installment plan unless and until the property owner agreed in writing not to contest the debt. The Court held that: “The municipality had the right by virtue of this provision to refuse to grant to the taxpayer the ‘privilege’ of the installment plan of payment, unless and until the written agreement not to' contest the debt had been entered into, and upon the failure or default of the taxpayer in this regard, the city had the right to demand and collect the payment in cash. But, just as with the acceleration clause, the provision was obviously for the benefit of the city, to be exercised or waived at its option. We can find no reason for applying the rule to> tbe provision for acceleration, wbicb does not call for its application to tbe provision under consideration. Tbe principle involved is tbe same. In botb cases tbe taxpayer seeks to penalize tbe city for its indulgence; in tbe one case for its failure to mature tbe entire debt by enforcement of tbe statutory acceleration provision, and in tbe other for its failure to enforce payment of tbe entire debt in cash under tbe pertinent statutory provision.” Likewise, in tbe case of City of Norman ■v. Allen, 47 Okla., 74, 147 Pac., 1002, it was beld and approved in City of Norman, et al., v. Van Gamp, et al., 87 Okla., 182, 209 Pac., 925, that where tbe ordinance provides “that tbe property owners may, within thirty days from tbe passage thereof, have tbe privilege of paying all assessments without interest, and if such property owners do not avail themselves of such privilege, their assessments and installments thereof shall draw interest from tbe date of tbe passage of tbe assessing ordinance, and tbe interest on tbe whole or entire unpaid installments and assessments then be payable annually at tbe time tbe respective installments under tbe assessments are payable.”

Tbe appellants further contend that tbe governing body of Salisbury ■did not authorize by way of resolution or ordinance tbe entry or division •of tbe assessment involved herein, into ten equal annual installments. No action by way of resolution or ordinance is required. After tbe governing body of a municipality levies an assessment, it then becomes tbe duty of tbe city clerk, unless some other party is designated, to prepare from tbe assessment roll and deliver to tbe tax collector a 'Special Assessment Book, containing information in detail as required by G. S., 160-100; C. S., 2722, including tbe amount that has been .assessed and tbe amount of such installments and tbe date on wbicb tbe installments shall become due.

Tbe contention that tbe governing body of tbe city of Salisbury was without authority to divide tbe assessment involved herein into installments, as provided in tbe original resolution authorizing tbe improvements, upon tbe failure of tbe property owner to pay in cash within tbe thirty-day period, or to signify bis election in writing within said period "hereinbefore mentioned, to pay in installments, cannot be sustained.

Tbe appellants attack tbe validity of tbe extension resolution and tbe amendment thereto, on tbe theory that tbe original resolution passed by tbe city council of tbe city of Salisbury, 31 May, 1935, was null and void, since tbe first installment of tbe new series of installments fell due in less than one year from tbe date of its passage, whereas tbe statute, ■chapter 126, Public Laws of 1935 (now, as amended, G. S., 160-94; G. S., 2717 [b] ), provided that in arranging tbe new series of ten equal installments, one of said installments shall fall due on tbe first Monday in October after tbe expiration of one year after tbe adoption of tbe extension resolution and one of said installments on tbe first Monday in October of each year thereafter. The city council, on 13 September, 1935, amended the original resolution to conform to the statutory requirement in respect to the dates on which the installments would fall due.

The appellants urge that statutory requirements as to the contents of a resolution or ordinance must be strictly complied with, citing 44 C. J., sec. 2401, p. 240. It will be noted, however, that it is also stated in the same section, that “When from the language used the intention of the council is manifest, and the requirements affecting substantial rights of the persons interested in the improvements are recognizable, the resolution is sufficient.” Hence, we think the resolution was defective, but not void.

It seems to be the general rule that the power to enact ordinances or to adopt resolutions necessarily implies power in the same body to amend them. 43 C. J., sec. 882, p. 561. It is stated in section 883, of the last cited authority, that “Ordinances defective because imposing excessive-penalties may be amended so as to change the invalid penalty to one which is valid.” State v. McDonald, 121 Minn., 207, 141 N. W., 110; Simpson v. Berhowitz, 110 N. T. S., 485. In the last case cited, the Supreme Court of New York said: “The power is inherent in every deliberative body to amend a resolution previously adopted by it.” In the case of Bacon v. City of Savannah, 105 G'a., 62, 31 S. E., 127, the city passed an ordinance under legislative authority, but the ordinance was defective on account of an illegal apportionment of the assessment among the several abutting parcels of real estate, the Supreme Court of Georgia held it was competent for the city to amend its ordinance, after the completion of the work upon the street, so as to conform to the statute in its provisions touching a legal apportionment of the assessment.

We hold that the extension resolution, as set forth herein, as passed and amended by the city council of the city of Salisbury, was a valid exercise of the statutory authority to extend the payments for local improvements, and did extend all installments of special assessments levied by the city of Salisbury prior to 31 May, 1935, for local improvements, whether due or not due, together with accrued interest thereon into a new series of ten equal installments, the first of the extended installments to be due and payable on the first Monday in October, 1936,. and the remaining installments to become due serially on the first Monday in October each year thereafter.

The appellants also challenge the validity of the lien of the plaintiff,, on the ground that the new series of installments, entered on the records of the city, pursuant to the extension resolution and the amendment thereto, were for sums, which in the aggregate exceeded the amount actually due at tbe time by tbe appellants. There is no merit in tbis challenge. Tbe governing body of a municipality is given tbe power by statute to correct, cancel or remit any assessment for a local improvement, and may remit, cancel or adjust the interest or penalties on any such assessment. G. S., 160-90; O. S., 2715. See also Vester v. Nashville, 190 N. C., 265, 129 S. E., 593; Gallimore v. Thomasville, 191 N. C., 648, 132 S. E., 657.

We now come to tbe final question for determination. Is tbe original assessment barred by tbe ten-year statute of limitations ? In view of tbe conclusion reached on tbe other questions presented, it necessarily follows that tbis question must be answered in' tbe negative. The new series of installments date from tbe first Monday in October, 1935, and tbe first installment did not mature until tbe first Monday in October, 1936, and tbis action was instituted 26 October, 1943. Charlotte v. Kavanaugh, 221 N. C., 259, 20 S. E. (2d), 97; City of Raleigh v. Mechanics & Farmers Bank, 223 N. C., 286, 26 S. E. (2d), 573; Raleigh v. Public School System, 223 N. C., 316, 26 S. E. (2d), 591.

Tbe judgment of tbe court below is

Affirmed.

WiNBORNE, J.,

concurring: Tbe answers to tbe first three questions stated in tbe Court’s opinion, with which I agree, render tbe plea of statute of limitation of no avail regardless of tbe view held with respect to such statute. See Raleigh v. Bank, 223 N. C., 286, 26 S. E. (2d), 573, where tbe question was fully debated.

BabNhill, J., joins in tbis opinion.  