City of Avis v. Allen
| Decision Date | 22 April 1919 |
| Docket Number | 3608. |
| Citation | 99 S.E. 188,83 W.Va. 789 |
| Parties | CITY OF AVIS v. ALLEN. |
| Court | West Virginia Supreme Court |
Submitted April 15, 1919.
Syllabus by the Court.
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.
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 book 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.
Under the provisions of section 34 of chapter 47 of the Code of 1913 (sec. 2420), 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.
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.
Where a city council, acting under the provisions of section 34 of chapter 47 of the Code 1913 (sec. 2420), 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.
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.
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 fect of their respective lots abutting on such street, or because there was no notice of such assessment to the owners of such abutting lots.
Where it city council, acting under the authority of the provisions of a charter granted to it by a circuit court, under the provisions of chapter 47 of the Code of 1913 (secs 2382-2494), passes an ordinance in accordance with the provisions of section 34 of said chapter (sec. 2420), providing for the paving of a certain street of said town and the assessment of two-thirds 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 property, inasmuch as such determination involves no legislative or judicial action, but is purely ministerial, involving only a mathematical calculation.
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.
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 committee 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...
To continue reading
Request your trial