City of Parkersburg v. Tavenner

• Decision Date: 28 November 1896
• Parties: CITY OF PARKERSBURG v. TAVENNER et al.
• Court: West Virginia Supreme Court

26 S.E. 179

42 W.Va. 486

CITY OF PARKERSBURG v. TAVENNER et al.

Supreme Court of Appeals of West Virginia.

November 28, 1896

Syllabus by the Court.

1. An act of the legislature which authorizes a municipality to assess two-thirds the expense of paving a street and the whole expense of constructing a sewer against the abutting property owners is constitutional and valid.

2. It is only necessary, in a bill in equity to enforce such an assessment, to set out and allege a substantial compliance with the statute.

Appeal from circuit court, Wood county.

Action by the city of Parkersburg against C. B. Tavenner and others. Judgment for plaintiff. Ione Gambrill appeals. Affirmed.

V. B Archer, for appellant.

J. W Vandervort and Merrick & Smith, for appellee.

DENT, J.

Acting under its charter as amended by chapter 13, Acts. 1889, the city of Parkersburg, through its council, paved a certain portion of its streets, and assessed two-thirds of the cost thereof against the abutting property owners; and also constructed a sewer, the whole cost of which was assessed to the abutting property owners in proportion to their frontage. The defendant was one of the property owners. Her assessment amounted to $319.14 for paving and $58.03 for sewerage, which she refused to pay. The city thereupon, as authorized by its charter, brought suit to enforce the lien of such assessment against the defendant's property. She demurred to the bill. The demurrer was overruled, and, the defendant not denying the same by answer, a decree was entered upon the bill as taken for confessed as to her. From this decree she appeals, and relies on two principal causes of error, to wit (1) That the charter, in so far as it permits local assessments for improvements, is unconstitutional; (2) that the council failed to comply with the provisions of the charter in making the improvements.

It is a very late day in the history of our jurisprudence to insist that the doctrine of local assessments for local improvements is inequitable or unconstitutional, for, as has been well said, it is now as firmly established as any other doctrine of American law. Inhabitants of Palmyra v Morton, 25 Mo. 593; Dill. Mun. Corp. § 752. This court recognized and adhered to the general doctrine on the subject, in so far as the paving of sidewalks was concerned in the case of Wilson v. Town of Philippi, 39 W.Va 75, 19 S.E. 553. It is true that it is said in that opinion that: "In paving the sidewalks after the grading is finished there can be little difficulty in apportioning the expense in an equal and uniform manner between the abutting lot owners; while in grading and paving the street, where the ground is uneven, and fills are required, it may often occur that the expense of grading in front of one lot far exceeds that of grading in front of the adjoining lots, which would render the proper apportionment of the expense between the lot owners uncertain and difficult;" and that this language has been received as an intimation that this court would establish a different doctrine as to the paving of streets and sidewalks. But an analysis of the language will show that the distinction between the two does not refer to the paying, but to the grading solely; for, after a street is graded, what difference does it make whether the lot owner is required to pave it for 10 feet, and call it a sidewalk, or 20 feet, and call it a street. The proportionate expense to all the abutting property owners is just the same, and is regulated according to the number of square yards involved. It is further said in this opinion (page 84, 39 W. Va., and page 556, 19 S. E.): "In view of the fact that the expense of putting down a sidewalk after the grading and curbing are done may be equally apportioned among the abutting lot owners in proportion to their frontage, we can see nothing in our statute which is repugnant to the clause of the constitution requiring that taxation shall be equal and uniform." This same language is applicable to the paving of streets where they have been graded, and all that is left to be done is to place the brick and sand thereon at so much a square yard. Local assessments for local improvements do not depend on the question of eminent domain or police regulations, but belong strictly to the taxing power, for they are merely a substitute for general taxation for the same public purposes, as being more uniform and equitable in their bearing on persons and property. Therefore all that is said in argument about the doctrine of eminent domain had no bearing on the case under discussion. The Virginia court of appeals has fully sustained the constitutionality of local assessment statutes...