Avis v. Allen, (No. 3608.)

• Court: Supreme Court of West Virginia
• Writing for the Court: RITZ
• Citation: 99 S.E. 188
• Parties: CITY OP AVIS v. ALLEN.
• Decision Date: 22 April 1919
• Docket Number: (No. 3608.)

99 S.E. 188

CITY OP AVIS
v.
ALLEN.

(No. 3608.)

Supreme Court of Appeals of West Virginia.

April 22, 1919.

(Syllabus by the Court.)[99 S.E. 189]

Error to Circuit Court, Summers County.

Action by the City of Avis against N. W. Allen. Judgment for plaintiff, and defendant brings error. Affirmed.

Thos. N. Read and R. F. Dunlap, both of Hinton, for plaintiff in error.

E. C. Eagle, of Hinton, for defendant in error.

RITZ, J. In the year 1910 certain of the citizens of the city of Avis petitioned the common council to pave certain of the streets. The council had an estimate made of the cost of doing such work, and from this estimate it appeared that it would require, in addition to the funds already available, about the sum of $10,000 to pay the part of the cost of such work that would have to be borne by the city. For the purpose of providing this fund an ordinance was adopted submitting to the vote of the people the question of the issuance and sale of $10,000 of bonds. This ordinance was duly ratified at an election held for the purpose, and the bonds issued and sold. The city of Avis was existing at that time as a municipal corporation under and by virtue of a charter granted to it by the circuit court of Summers county, under the provisions of chapter 47 of the Code (secs. 2382-2494), and it was determined to do this paving under the provisions of section 34 of that chapter (sec. 2420). Certain petitions were filed with the council purporting to be by the owners of property abutting upon certain streets between certain of the cross streets, requesting that such streets be paved under the provisions of that section. After these petitions were filed the council passed an ordinance in which it is recited, in reference to each block proposed to be paved, that certain of the owners of property within said block, whose names are set out in the ordinance, had petitioned for the paving of such street, and further reciting and finding that the property owned by the petitioners was the greater amount of frontage of the lots abutting on each of such streets, and further determining that it was for the public good to pave said streets, and then ordaining that each of said streets be paved with a designated kind of material, of a designated width, and that two-thirds of the cost thereof be assessed against the abutting property owners, in accordance with the provisions of section 34 of chapter 47 of the Code. The ordinance further approved a contract which had theretofore been awarded to a certain contracting firm for the doing of this paving. The defendant in this case was the owner of two lots each abutting 50 feet upon one of the streets so paved. He did not sign the petition asking for the paving. The work was done under the contract aforesaid, and when completed it is shown that the paving com-

[99 S.E. 190]

mittee of said city ascertained the cost of the paving of each street between the respective cross streets, and ascertained and reported to the council the proportionate part of such cost properly assessable and chargeable against each of the property owners, upon the basis of the frontage owned by them upon each of said streets, and it is shown that when this report was made to the council it was regularly adopted and approved, but no minute thereof was entered upon its record. Upon the adoption and approval of this report certificates were issued and signed by the mayor and recorder reciting the fact of the approval of the assessments by an ordinance passed on the date which the certificate bears, and certifying that the amount named in the certificate was found to be due from the party against whom the same is made on account of said paving so done as aforesaid. One of such certificates was issued against the defendant because of the lots owned by him abutting on one of said paved streets as aforesaid. He refused to pay the same, and this suit was brought before a justice of the peace to enforce the collection thereof. Upon appeal to the circuit court of Summers county a trial of the case resulted in a verdict and judgment against him in favor of the city for the amount of such assessment, and from that judgment he prosecutes this writ of error.

The first and most serious contention of the defendant is that the ordinance providing for the paving has not been proved. It seems that the council of the city of Avis kept two books within which it made minutes or records of its proceedings. One was a book in which minutes were kept of the action taken by the council at its meetings, and the other a book in which were recorded ordinances passed by the council. At the meeting of the council held on the 12th day of June, 1911, at which it is contended this paving ordinance was passed, the minute book shows that an ordinance providing for the paving of certain of the streets, being the streets that were paved, was presented and was passed, but the ordinance is not spread at length upon this minute book. In the ordinance book is found the ordinance written out on separate sheets of paper and pasted in the book. There is no date on it in the ordinance book, nor is it identified by the signature of the mayor or the recorder, and it is contended that it is entirely invalid because of the fact that it is not recorded in the book, but is simply pasted therein, and because of the...