City of Moundsville v. Brown

• Decision Date: 01 June 1943
• Docket Number: 9457.
• Parties: CITY OF MOUNDSVILLE v. BROWN et al.
• Court: West Virginia Supreme Court

25 S.E.2d 900

125 W.Va. 779

CITY OF MOUNDSVILLE v. BROWN et al.

No. 9457.

Supreme Court of Appeals of West Virginia.

June 1, 1943

Clinton Rogerson and Walter A. McGlumphy, both of Moundsville, for plaintiff in error.

Martin Brown, of Moundsville, for defendants in error.

KENNA, Judge.

This proceeding by way of notice of motion for judgment was brought in the Circuit Court of Marshall County by the City of Moundsville against Martin Brown and W. Foss Curtiss Trustees for the waiving depositors of Marshall County Bank for the purpose of recovering the sum of three hundred fifteen dollars and forty cents ($315.40) alleged to be "the aggregate of certain assessments or levies together with the interest due thereon, made and levied against certain parcels of land situated within said municipality, the title to which is vested in you, for the purpose of liquidation, by virtue of a certain Public Works Administration street paving project initiated and carried to completion during the year 1939 by said municipality pursuant to the provisions of Article 4A of Chapter 8 of the Code of West Virginia--Chapter 68 of the 1935 Acts of West Virginia Legislature--whereby said properties were improved by the laying of said paving adjacent thereto and fronting thereon, the compensation for the services so rendered having been fixed and established by an ordinance duly enacted by the governing body of said municipality on the 27th day of March, 1939, ***". The notice then proceeds to refer to certain lots by number in three different additions to the City of Moundsville and the fact that the levies or assessments, the aggregate of which is sought to be recovered, are past due and unpaid.

Upon the return day the defendants appeared and filed a demurrer in writing to the notice assigning seventeen specific grounds, in which the plaintiff joined, and upon final submission the Circuit Court sustained the demurrer, and, the plaintiff not wishing to amend, dismissed the proceeding. Upon plaintiff's application this appeal was granted.

The initial question to be disposed of under the demurrer is whether under Code, 56-2-6, the proceeding by way of notice of motion for judgment, therein restricted to recovery enforceable by action on contract, can be maintained against the owners of real estate when their land is subjected to a charge to defray the cost of street paving as provided in Chapter 68 of the Acts of 1935, the specific section granting to municipal authorities power to provide for the retirement of revenue bonds issued to defray the cost of a public work constructed under that Act by imposing rates of "charges" to be paid by the persons using the work or receiving the services thereof being Section 17, this Court having construed the word "charges" as used in that section to include a special assessment against real estate. Duling Bros. Co. et al., v. City of Huntington, 120 W.Va. 85, 196 S.E. 552. The notice herein contains an averment that the City of Moundsville on the twenty-seventh day of March, 1939, enacted an ordinance imposing the charges sought to be collected, making them payable on the fifteenth day of January, of the years, 1940, 1941, and 1942.

We do not wish to be understood as now definitely passing upon the question of whether the provisions of Chapter 68 of the Acts of 1935 impose, or authorize a municipality to impose, a personal liability upon the owner of lots abutting upon a street improvement due to the fact that in our opinion this question is not reached in this proceeding for reasons that will be hereinafter discussed. See Ivanhoe v. City of Enterprise, 29 Or. 245, 45 P. 771, 35 L.R.A. 58.

Unfortunately the Act defines "municipal public works" as including and subjecting to its provisions on an equal footing, improvements which, from the standpoint of yielding a return, are essentially different, such as hospitals and street paving. In no case does it expressly couple a personal liability with the special assessment against property, which we have held under the Act may take the place of what may be called the earnings of the improvement. It is true that it speaks of the assessment the municipalities are authorized to lay as being recoverable in a civil action. No ordinance of the City of Moundsville is before us and the notice of motion contains no allegation that personal liability has been in any manner imposed. Section 27 of the Act provides that the Act being necessary for public health safety and welfare shall be liberally construed to effectuate its purposes. Of course, the provision that the assessment can be recovered in a civil action indicates an assumption on the part of the Legislature that the Act itself creates...