City Of Beckley v. Wolford, (No. 5776.)

CourtSupreme Court of West Virginia
Writing for the CourtHATCHER, P
Citation140 S.E. 344
PartiesCITY OF BECKLEY. v. WOLFORD et al.
Decision Date18 October 1927
Docket Number(No. 5776.)

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.

[140 S.E. 345]

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.

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9 practice notes
  • Samsell v. State Line Development Co., No. 12840
    • United States
    • Supreme Court of West Virginia
    • May 15, 1970
    ...S.E. 125, 127, 111 A.L.R. 1229; State v. Conley, 118 W.Va. 508, 531, 190 S.E. 908, 919; City of Beckley v. Wolford et al., 104 W.Va. 391, 140 S.E. 344; Coberly v. Gainer, 69 W.Va. 699, 703, 72 S.E. 790, 792; State v. Chilton, 49 W.Va. 453, pts. 4 and 5 syl., 39 S.E. 'In accordance with a we......
  • Cunningham v. County Court of Wood County, No. 12279
    • United States
    • Supreme Court of West Virginia
    • February 25, 1964
    ...125, 127, 111 A.L.R. 1229; State v. Conley, 118 W.Va. 508, 531, 190 S.E. 908, 918; The City of Beckley v. Wolford et al., 104 W.Va. 391, 140 S.E. 344; Coberly v. Gainer, 69 W.Va. 699, 703, 72 S.E. 790, 792; State v. Chilton, 49 W.Va. 453, pts. 4 and 5 syl., 39 S.E. In accordance with a well......
  • CVAS 2, LLC v. City of Fredericksburg, Record No. 140505.
    • United States
    • Virginia Supreme Court of Virginia
    • January 8, 2015
    ...special taxes or special assessments” as another, “both of [which] are properly called taxes”); City of Beckley v. Wolford, 104 W.Va. 391, 140 S.E. 344, 345 (1927) (noting that it is “thoroughly established” that “special assessments are a species of taxation, and the authority to enforce t......
  • Cawley v. Board of Trustees of Firemen's Pension or Relief Fund of City of Beckley, No. 805
    • United States
    • Supreme Court of West Virginia
    • July 7, 1953
    ...A municipality acting in a governmental capacity is not subject to the law of equitable estoppel. Beckley v. Wolford, 104 W.Va. 391, 140 S.E. 344. Municipalities sometimes act in a governmental capacity, and sometimes in a proprietary capacity. When the [138 W.Va. 584] action relates to a p......
  • Request a trial to view additional results
9 cases
  • Samsell v. State Line Development Co., No. 12840
    • United States
    • Supreme Court of West Virginia
    • May 15, 1970
    ...S.E. 125, 127, 111 A.L.R. 1229; State v. Conley, 118 W.Va. 508, 531, 190 S.E. 908, 919; City of Beckley v. Wolford et al., 104 W.Va. 391, 140 S.E. 344; Coberly v. Gainer, 69 W.Va. 699, 703, 72 S.E. 790, 792; State v. Chilton, 49 W.Va. 453, pts. 4 and 5 syl., 39 S.E. 'In accordance with a we......
  • Cunningham v. County Court of Wood County, No. 12279
    • United States
    • Supreme Court of West Virginia
    • February 25, 1964
    ...125, 127, 111 A.L.R. 1229; State v. Conley, 118 W.Va. 508, 531, 190 S.E. 908, 918; The City of Beckley v. Wolford et al., 104 W.Va. 391, 140 S.E. 344; Coberly v. Gainer, 69 W.Va. 699, 703, 72 S.E. 790, 792; State v. Chilton, 49 W.Va. 453, pts. 4 and 5 syl., 39 S.E. In accordance with a well......
  • CVAS 2, LLC v. City of Fredericksburg, Record No. 140505.
    • United States
    • Virginia Supreme Court of Virginia
    • January 8, 2015
    ...special taxes or special assessments” as another, “both of [which] are properly called taxes”); City of Beckley v. Wolford, 104 W.Va. 391, 140 S.E. 344, 345 (1927) (noting that it is “thoroughly established” that “special assessments are a species of taxation, and the authority to enforce t......
  • Cawley v. Board of Trustees of Firemen's Pension or Relief Fund of City of Beckley, No. 805
    • United States
    • Supreme Court of West Virginia
    • July 7, 1953
    ...A municipality acting in a governmental capacity is not subject to the law of equitable estoppel. Beckley v. Wolford, 104 W.Va. 391, 140 S.E. 344. Municipalities sometimes act in a governmental capacity, and sometimes in a proprietary capacity. When the [138 W.Va. 584] action relates to a p......
  • Request a trial to view additional results

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