City of Moundsville v. Yost
| Decision Date | 08 December 1914 |
| Citation | 83 S.E. 910,75 W.Va. 224 |
| Parties | CITY OF MOUNDSVILLE v. YOST ET AL. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
A municipality acts only through its assembled council, whose will can be expressed only by a vote embodied in some distinct and definite form.
The power of a municipality to levy special assessments for street improvement upon owners of lots abutting thereon depends upon statute, and the mode of procedure therefor prescribed by the Legislature must be strictly followed in all material respects.
A statute providing that municipal ordinances, resolutions, or measures for the expenditure of money can be passed only after having been read at two consecutive meetings of the council, is clearly mandatory, and such a resolution voted on and declared passed at the first meeting of the council at which it was offered is void.
A special assessment for street paving, levied upon the owner of a lot abutting on such street, which is not supported by a valid ordinance, or resolution, declaring it to be the purpose of the council to make such improvement, and depending only upon a void resolution directing the city clerk to advertise for bids for such paving, is void and ineffective to create a lien on such lot for any part of the cost of the street improvement.
When the proceedings under which the special assessment has been made are void and not simply irregular, a lot owner is not estopped to deny liability by his failure to appear and show cause against the assessment in answer to notice.
The provision in a municipal charter requiring notice for bids for street paving to be advertised "for four weeks in one or more newspapers of the city" is mandatory, and advertising for 15 days and then waiting for 4 weeks from the first publication of notice before accepting a bid is not a compliance therewith.
Appeal from Circuit Court, Marshall County.
Suit by the City of Moundsville against E. H. Yost and others. From decree for defendants, plaintiff appeals. Affirmed.
James F. Shipman, of Moundsville, and McCamic & Clarke, of Wheeling, for appellant.
E. H Yost, of New Martinsville, and Martin Brown, of Moundsville for appellees.
By this appeal the city of Moundsville seeks reversal of a decree sustaining a demurrer to its bill and dismissing its suit brought to enforce an alleged lien upon a lot of ground now owned by the defendant E. H. Yost and fronting on Thompson avenue. The lien is claimed by virtue of a special assessment levied on account of the paving of the street in front of said lot. At the time of the paving the lot was owned by Mary E. Seamon, who has since died. Harry W. Seamon, her heir at law, sold and conveyed it to the defendant Margaret Crow, and it thereafter, and prior to the bringing of this suit, passed through several mesne conveyances to the defendant E. H. Yost.
In addition to numerous other powers conferred upon the city by the Legislature is the power to grade and pave its streets and alleys and assess two-thirds of the cost thereof upon the owners of lots abutting thereon. Section 48, c. 67, Acts 1903. To carry into effect the powers conferred upon the municipality, the council is given full authority and power to pass "all needful ordinances, by-laws, orders and resolutions." Section 17 of said act. A municipality acts only through its assembled council, whose will can be expressed only by a vote embodied in some distinct and definite form. 1 Smith on Munic. Corp. § 284; Rutherford v. City of Williamson, 70 W.Va. 402, 74 S.E. 682.
It appears from the bill that the only action ever taken by the council, before contracting for the paving, was the passage on June 18, 1903, of the following resolution, viz.:
"Mr. Barbour moved the clerk advertise for fifteen days for bids for paving the following streets: * * * Thompson avenue from Tenth street to Twelfth street."
Granting that this resolution was sufficient in form to express the purpose of the council to undertake the street improvement, it was not passed in the manner provided by section 15, c. 67, Acts 1903, reincorporating the city of Moundsville. That section is as follows:
"No ordinance or by-law, and no resolution or measure for the expenditure of money, other than to defray the current and incidental expenses of the city, shall be deemed passed or adopted, unless it shall have been fully read at two consecutive meetings of the council, and shall have received a majority of the votes of the members present, when it shall stand and be declared adopted, and not otherwise."
The concluding words, "and not otherwise," evince an unmistakable purpose of the Legislature to make the mode of passing such ordinance or resolution imperative. The purpose of the statute was to prevent undue haste and secure deliberation by the council before final passage of an ordinance or resolution; and it is a general rule of law that all statutory requirements for such purpose are imperative. 2 Dillon on Munic. Corp. (5th Ed.) § 576; Campbell v. Cincinnati, 49 Ohio St. 463, 31 N.E. 606. The resolution, involving as it does the expenditure of money for purposes other than current and incidental expenses of the city, should have been read at two consecutive council meetings before it was passed. The statute expressly says it could not otherwise be passed. The statute being mandatory the resolution was void.
Section 48 of the charter authorizes the council to provide for the paving of streets and alleys and to assess two-thirds of the cost thereof to the abutting lot owners. Such assessment is also made a lien upon the lot enforceable by suit in equity as other liens are enforced. But, notwithstanding that provision, the passage of a valid ordinance or resolution was a condition precedent to the right to levy the assessment. It was jurisdictional. 2 Smith on Munic. Corp. § 1133; 4 Dillon on Munic. Corp. (5th Ed.) § 1402; Wheeler v. City of Poplar Bluff, 149 Mo. 36, 49 S.W. 1088. The Legislature having prescribed the mode by which the city can make local assessments, that mode must be strictly followed. McManus v....
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