City Of Avis v. Deeided, No. 3608.

• Court: Supreme Court of West Virginia
• Writing for the Court: RITZ, J.
• Citation: 83 W.Va. 789
• Parties: City of Avis v. N. W. Allen.Deeided
• Decision Date: 22 April 1919
• Docket Number: No. 3608.

83 W.Va. 789

City of Avis
v.
N. W. Allen.Deeided

No. 3608.

Supreme Court of Appeals of West Virginia.

Submitted April 15, 1919.
April 22, 1919.

[83 W.Va. 789]

1. Municipal Corporations Ordinances Passage Identification of Ordinance.

In determining whether an ordinance found upon the records of a municipal corporation is sufficiently identified. to make it one of the legislative acts of the municipality, the subject-matter of the ordinance, the form of the record, and the purpose sought to be accomplished will all be considered, and where the object to be attained is one which will be, in the ordinary course of affairs, fully accomplished within a relatively short time, the same strictness in identifying such a record as one of the ordinances of said city will not be required as is demanded where the ordinance sought to be established provides a permanent rule or law of general application. (p 792).

2. Same.

Where the common council of a municipal corporation, for the purpose of keeping a record of its proceedings, provides two books, in one of which is entered its acts or proceedings except the ordinances passed by it, and in the other of which is entered all ordinances passed by the council, a paper without date, purporting to be an ordinance, found pasted in such ordinance book, without being signed by either the mayor or the recorder of such city, which provides for the paving of certain streets of said city by name, and refers to a certain contract having been let for the paving of said streets, is sufficiently identified as an ordinance of said city by a minute in the other record books kept by the council showing the passage upon a certain day of such an ordinance for the paving of the particular streets therein named, and by the contract therein referred to. (p. 792).

3. Same Public Improvements Paving Ordinance Necessity of Request by Property Owners.

Under the provision of § 84 of ch. 47 of the Code, a city council has no authority to pass an ordinance providing for the paving of one of the streets of said city, and the assessment of two thirds of the cost thereof against the property abutting upon such street, until a petition in writing of the persons owning the greater amount of frontage of the lots abutting on both sides of such street between any two cross-streets, or between a cross-street and an alley, has been presented to said council requesting that such improvement be made. (p. 792).

[83 W.Va. 790]

4. Same Acts of City Council Collateral Attach.

Where, from the record of a municipal corporation, it appears that the council found to exist the facts necessary to confer upon it power to act in a particular case, such finding cannot be questioned collaterally. (p 794).

5. Same Public Improvements Jurisdictional Findings Collateral Attack.

Where a city council, acting under the provisions of § 34 of ch. 47 of the Code, shows by its record that it finds as a fact that certain persons named in said record signed a petition requesting the paving of a certain street in said town, and that the property owned by such persons is the greater amount of the front feet of the property abutting upon said street, such finding is conclusive, and cannot be questioned in a suit brought for the purpose of collecting the assessment. (p 794).

6. Same Public Improvements Protests Waiver.

Where the owner of property abutting upon a street which is being paved knows that it is the purpose to assess his property with a part of the cost of such paving, and also knows of facts which, according to his contention, would render it improper or unlawful to make an assessment against him, if he would avail himself thereof, he must bring a suit to test the question of the validity of the proceedings before the work is done. If he does not do this he will be deemed to have waived any right he may have had to question the validity of an assessment made against his property because of matters within his knowledge before the construction of the work. (p. 795).

7. Same Paving Improvements Apportionment of Costs Notice.

An assessment by a city upon lot owners of part of the cost of paving a street is not invalid because the assessment is determined by apportioning such part of such cost among the abutting owners in proportion to the number of front feet of their respective lots abutting on such street, or because there was no notice of such assessment to the owners of abutting lots. (p. 796).

8. Same Public Improvements Determination of Costs.

Where a city council acting under the authority of the provisions of a charter granted to it by a circuit court, under the provisions of eh. 47 of the Code, passes an ordinance in accordance with the provisions of § 34 of said chapter, providing for the paving of a certain street of said town, and the assessment of twothirds of the cost of such paving against the abutting property owners in the manner provided by said section, there is no necessity for a further ordinance, after the work is completed, to determine the amount of such cost chargeable to each piece of prop

[83 W.Va. 791]

erty, inasmuch as such determination involves no legislative or judicial action, but is purely ministerial, involving only a mathematical calculation. (p. 797).

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. Bead and B. F. Dunlap, for plaintiff in error. E. C. Eagle, for defendant in error.

Ritz, Judge:

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 ten thousand dollars 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 ten thousand dollars 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 ch. 47 of the Code, and it was determined to do this paving under the provisions of § 34 of that chapter. Certain petitions were filed with the council purporting to be by the owners of property abutthe 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

[83 W.Va. 792]

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...