Atlantic Bitulithic Co. v. Town of Edgewood

• Decision Date: 21 September 1915
• Docket Number: 2765.
• Citation: 87 S.E. 183,76 W.Va. 630
• Parties: ATLANTIC BITULITHIC CO. v. TOWN OF EDGEWOOD ET AL.
• Court: West Virginia Supreme Court

87 S.E. 183

76 W.Va. 630

ATLANTIC BITULITHIC CO. v. TOWN OF EDGEWOOD ET AL.

No. 2765.

Supreme Court of Appeals of West Virginia.

September 21, 1915

Submitted September 1, 1915.

Rehearing Denied Dec. 17, 1915.

Syllabus by the Court.

Informal discussion of a proposition at an informal meeting of the members of a municipal council, but on which no formal action is taken and no minute made, though there was a general understanding as to what should be done, does not constitute municipal action binding the municipality.

The contract of a municipal corporation for paving and improving its streets and alleys is not void as constituting a debt inhibited by the constitution simply because the bonds authorized therefor have not at the date of the contract been actually sold and the proceeds thereof covered into the treasury.

Though the estimated amount of work and material called for by such contract, at the stipulated prices per square yard, for the paving, and the stipulated prices per lineal foot for the curbing, etc., aggregates a sum in excess of such bonds and an amount beyond the constitutional limitation, yet the contract being partible, and susceptible of execution to the amount of such bonds and to the extent such municipality is permitted to become indebted, is void only as to the excess of work and material contracted for, and may be so enforced.

Appeal from Circuit Court, Ohio County.

Suit by the Atlantic Bitulithic Company against the Town of Edgewood and others. From decree for defendants, plaintiff appeals. Reversed and rendered.

John J Coniff and S. M. Noyes, both of Wheeling, for appellant.

Frank W. Nesbitt and Chas. J. Schuck, both of Wheeling, for appellees.

MILLER J.

The decree appealed from, pronounced on bill, answer of defendants, and proofs taken, dissolved the preliminary injunction, denied all relief, and dismissed the bill.

The sole relief sought was an injunction. The preliminary injunction, in accordance with the prayer of the bill enjoined the Town of Edgewood, W. V. Hoge, Jr., Mayor George E. Carenbauer, recorder, and Hoge, Jr., Yeago Mossburg, Sr., McNabb, Blowers and Evans, councilmen, of said town, "from in any manner interfering with the contract awarded to plaintiff in this case by the town of Edgewood, on the 9th day of January, 1913, and from in any manner interfering with the said plaintiff proceeding as provided in said contract with its preparations to do said work and from in any manner interfering with the prosecution of said work by the complainant, and from harassing this complainant and advertising that its material to be used in said work at the town of Edgewood is unfit for said work or defective and not serviceable; and from passing resolutions to that effect in council or in any manner in said council meetings voting or attempting to discredit the work and material of the complainant, or in any manner hindering the complainant from performing the contract with the said town of Edgewood; until the further order of this Court."

The contract pleaded and referred to in this order of injunction, interference in the execution of which by the plaintiff was charged against the defendants, as indicated in said order of injunction, was for furnishing all materials and performing all labor required in the grading, paving, and setting of curb, and all other work incident thereto, on certain avenues, lanes and streets, designated in the contract, and in accordance with certain lines, levels, stakes, profiles, plans, specifications, and instructions of the engineer, as therein stipulated, and which plans, etc., were made a part of the contract.

That all preliminary steps provided by chapter 8, Acts 1908, section 49c et seq., c. 47 (serial section 2456 et seq.), Code 1913, and necessary to the entering into of a valid contract, had been taken by the council and people, is not controverted.

The defenses interposed and mainly relied on in the answers are: First, that the said contract of January 9, 1913, calling for practically 29,365 square yards of paving at $1.87 per square yard, and for 19,550 lineal feet of curbing at 31 cents per foot, and for 894 lineal feet of rough curbing [76 W.Va. 632] at 25 cents per foot, aggregating $61,196.55, to say nothing of the extra concrete and gravel foundation called for by the contract, totaling, according to the contention and calculation of defendants, some $13,507.90, creates a debt in an amount, including the net existing indebtedness of said town, far in excess of the constitutional limitation of five per centum of the taxable value of all property therein, after deducting money on hand and money that would be available out of the levies for the current year, and is therefore void.

Second that assuming authority of the council, after approval by it of the plans, specifications, estimates, grades, profiles, etc., on file with the recorder and engineer, and ratification thereof by the vote of the people, as provided by said act, to change the width of the streets, alleys and lanes, as claimed, so as to bring the contract price for the whole, after applying the proceeds of the $54,000.00 of bonds authorized by the vote of the people, no legal action of the council had in fact been taken to so modify such plans and specifications therefor, as approved, and that the...