City Of Beckley v. Wolford

• Decision Date: 18 October 1927
• Docket Number: (No. 5776.)
• Court: West Virginia Supreme Court
• Parties: CITY OF BECKLEY. v. WOLFORD et al.

140 S.E. 344

CITY OF BECKLEY.

v.WOLFORD et al.

(No. 5776.)

Supreme Court of Appeals of West Virginia.

Oct. 18, 1927.

Rehearing Denied Nov. 21, 1927.

(Syllabus by the Court.)

Appeal from Circuit Court, Raleigh County.

Suit by the City of Beckley against W. M. Wolford and French G. Lucas. From a decree for plaintiff, defendant Lucas appeals. Affirmed.

Ashworth & Ashworth, of Beckley, for appellant.

W. H. File, of Beckley, for appellee.

HATCHER, P. This suit involves the validity of a paving assessment which the city of Beckley is attempting to collect.

From 1920 to 1924, W. M. Wolford owned a lot in Beckley. In 1921, upon a proper petition, the city council entered an order directing that the street in front of this lot be paved. The pavement was completed and accepted by the city in July, 1922. The cost of the work was reported to and approved by the council, which passed an order, in July of 1923, assessing the Wolford lot with $213.-97, its pro rata part of such cost. That assessment was not then entered upon the records of the council, or certified to the clerk of the county court of Raleigh county. It has not been paid.

Wolford sold the lot to his codefendant, F. G. Lucas, in 1924. Before purchasing the lot, Lucas had his attorney examine the county court records and the minutes of the city council. No assessment against the lot being found Lucas paid Wolford the entire purchase price. In July of 1925, without notice to either Wolford or Lucas, the council entered on its records the assessment which it had made against the lot in 1923, as a nunc pro tunc order. The city seeks in this suit to enforce the collection of that assessment by a sale of the lot. From a decree in favor of the city, Lucas appeals.

The pleading and the proof show that the city proceeded under section 34, chapter 47, Code. As section 34 does not specify that an assessment be recorded, the city contends that an unrecorded assessment is valid, as against the owner of a lot and his vendee, and that it perfected a lien against the lot under section 36 of that chapter, by merely passing the order of assessment and leaving it with the city recorder.

The appellant contends that, in order for the city to have perfected its lien, the assessment should have been recorded on the minute books of the city and in the office of the clerk of the county court of Raleigh county, and, as that was not done prior to his purchase, he is in the position of a bona fide purchaser for value without notice, and the city is estopped to assert its lien against him. In support of his contention, appellant cites Seaman v. Big Horn Canal Ass'n, 29 Wyo. 391, 213 P. 938, and Curnen v. Mayor, etc., of City of New York, 79 N. Y. 511. The first case held that a municipality supplying its inhabitants with water does so as a proprietor, and such as may be estopped in pais, just the same as a private corporation or individual. In the instant case, the city was not engaged in a commercial enterprise; consequently the Seaman Case has no application. In the Curnen Case it was held that a municipality was estopped by the misrepresentation of its officers, even though acting in a governmental capacity. That was a case, however, of positive misrepresentation. This case presents no misrepresentation, but only official laches and inattention. The cases are therefore not parallel.

A few decisions have held that the doctrine of equitable estoppel may be asserted against a municipality, even when acting in a governmental capacity, notably Elder v. Fox, 18 Colo. App. 263, 71 P. 398. But a great author and jurist characterizes such decisions as "exceptional cases, " "a law unto themselves, " and justifies them only on the theory that the acts which were held to constitute estoppel amounted to fraud. Dillon, Municipal Corporations (5th Ed.) par. 1194, and note 1, p. 1903.

An examination of the authorities shows that the following principles are thoroughly established:

(1) The state is not subject to the laws of estoppel when acting in a governmental capacity. 21 C. J. 1186, 1187; Herman, Estoppel, § 1128; Ralston v. Weston, 46 W. Va. 544, 555, 33 S. E. 326, 76 Am. St. Eep. 834.

(2) Taxation is an act of sovereignty. Cooley Taxation (4th Ed.) §§ 1 and 50.

(3) The taxing power of the state may be delegated to municipalities. Cooley, supra, § 124; Dillon, supra, § 1375.

(4) Special assessments are a "species of taxation, " and authority to enforce them is "a branch of the taxing power." Chicago & A. R. Co. v. Joliet, 153 111. 649, 654, 39 N. E. 1077; French v. Barber Co., 181 U. S. 324, 21 S. Ct. 625,.45 L. Ed. 879; Cooley, supra, § 31; Dillon, supra, § 1431; Page & Jones, Taxation by Assessment, §§ 8 and 89; Hamilton, Special Assessments, par. 50.

(5) In the collection of taxes a municipality is not estopped by the laches, inattention, or failure of duty of its officials. Chief Justice Marshall, after affirming the vital importance of the taxing power to the existence of a government, said in Providence Bank v. Billings, 4 Pet. 514, 561 (7 L. Ed. 939):

"It would seem that the relinquishment of such a power is never to be assumed."

Marshall's great contemporary, Justice Story, was equally positive that laches is not chargeable to the state:

"The general principle is that laches is not imputable to the government; and this maxim is founded, not in the notion of extraordinary prerogative, but upon a great public policy. The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions'." U. S. v. Kirkpatrick, 9 Wheat. 720, 735 (6 L. Ed. 199).

A century later the tenets of Story and Marshall are confidently restated by the highest courts and authorities:

"The state is never estopped to exercise any attribute of sovereignty unless it appears to have surrendered it upon a consideration in the most clear and explicit terms, and is never estopped because of the ignorant, indifferent, or willful acts of its servants. * * * It is easy to see why this is so. If the acts of indifferent and recreant public servants could estop the state in the exercise of its sovereignty in a few years, it would so limit its power that it could not exercise the functions of government." People v. Detroit Ry. Co., 228 Mich. 590. 621, 200 N. W. 536, 545; 21 C. J. pp. 1186. 11S7; 10 R. C. L. pp. 705, 706, 707; State v. Brewer, 64 Ala. 287; Board of Com'rs v. Conners, 121 Kan. 105, 245 P. 1030; Hibernian Benevolent Society v. Kelly, 28...