Fairmont Wall Plaster Co v. Nu-zum

• Decision Date: 02 March 1920
• Docket Number: (No. 3808.)
• Citation: 102 S.E. 494
• Court: West Virginia Supreme Court
• Parties: FAIRMONT WALL PLASTER CO. v. NU-ZUM et al.

102 S.E. 494

FAIRMONT WALL PLASTER CO.

v.NU-ZUM et al.

(No. 3808.)

Supreme Court of Appeals of West Virginia.

March 2, 1920.

(Syllabus by the Court.)

A special assessment against a city lot for cost of paving, made agreeably to the provisions of a repealed charter and substantially variant from the requirements of a new or amended charter in force at the time of the improvement and assessment, is fatally defective and unenforceable.

Unconstitutionality, if any, of clearly separable provisions of a municipal charter statute, do not wholly invalidate it, nor deny effect to a clause thereof repealing the former charter.

Such new or amended charter, in so far as it is constitutional and valid, is the law of the corporation, notwithstanding the pendency of judicial proceedings to prevent it from going into effect, on the ground of unconstitutionality.

Neither the courts nor individuals acting as officers can prolong the life of a repealed statute.

Though there may be de facto officers whose acts are valid, there can be no such thing as a de facto law in territory under the jurisdiction of an undisputed sovereignty.

To be valid, the acts of de facto officers must comply with the requirements of applicable law, to the same extent and in the same manner as valid acts of de jure officers.

(Additional Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Special Assessment.]

Appeal from Circuit Court, Marlon County.

Bill by the Fairmont Wall Plaster Company against Ernest C. Nuzum and others. Bill and amended bill dismissed on demurrer, and defendant Ernest C. Nuzum appeals. Decree affirmed.

Harry Shaw, of Fairmont, for appellant.

Trevy Nutter and W. S. Meredith, both of Fairmont, for appellee.

POFFENBARGER, J. The bill and amended bill dismissed on demurrer by the decree complained of sought enforcement of an alleged lien for street paving on a certain lot in the city of Fairmont. The court below held the assessment void because on its face it appears to have been made under a paving provision of a charter that, In the opinion of the court below, had been repealed before the paving was ordered or done and before the assessment was made. The controversy is a result of the Fairmont Charter Act of 1915 (Acts 1915, c. 10), referred to in Anderson v. Bowen, 78 W. Va. 559, 89 S. E. 677.

Notwithstanding the adjudication of the validity of the passage of the Charter Act of 1915 made in that case June 1, 1916, the authorities of that city in office at the time on August 7, 1916, ordered the paving of a certain street therein, East Park avenue between Morgantown avenue and Speedway street, under the provisions of the Charter Act of 1913 (Acts 1913, c. 81), which the act of 1915 purported to repeal, and between that date and January 22, 1917, caused the work to be done and paving certificates therefor to be issued in accordance with the provisions of said act of 1913. The ordinance ordering the paving and the certificates based on theassessment recite the paving provision of the act last above mentioned. The assessments made on all of the properties affected amounted to over $7,000, but those made against the property involved here aggregate only $124.20. The work was let to contract, and the contractor partly paid in assessment certificates, and he assigned those purporting to bind the property of the appellee to the appellant in this cause.

A demurrer to the bill disclosing these facts having been sustained, the bill was amended by allegations of the award of an injunction by the United States District Court for the Northern District of West Virginia restraining the board of affairs of the city from holding an election under the act of 1915, dissolution of the Injunction, and pendency of an appeal from the decree of dissolution in the Supreme Court of the United States. A demurrer interposed to the bill so amended was sustained, and both bills dismissed.

Such grounds of invalidity of the act of 1915 as would have wholly defeated it, if they had been tenable, were distinctly disposed of adversely to the assailants of the act, in the decision above referred to, and that decision was rendered before the work in question was ordered or performed, as has been shown. That decision also impliedly held that the constitutional infirmity, if any, in the provisions of the Charter Act of 1915, respecting the mode of election of officers and qualifications of voters, did not wholly invalidate the charter. That they did not is clearly manifest. There was no constitutional impediment to a change of the name of the governing body from "board of affairs" to "board of directors, " nor to a change in the number of Its members. Whether all of the provisions were valid or not, the act continued or created a municipal corporation having numerous and extensive powers of the kind usually conferred upon 'such corporations, including that of street improvement and Imposition of special assessments for part payment of the cost thereof, about the validity of which no question ever arose. Efforts wholly to defeat and annul municipal charters on the ground of invalidity of clearly separable provisions thereof are never sustained by the courts. Authority of the Legislature to make the slight changes in the paving sections of the Charter Act of 1913 found in that of 1915 was never questioned and could not have been with any degree of plausibility. They amounted to no more than the reduction of the assessments from entire cost of the work to two-thirds thereof, and requirement of publication of notices of assessments in all of the daily papers of the city instead of such publication in two of them. Of the constitutionality of all of the basic provisions of the Charter Act of 1915, other than one or two relating to the mode of election and the qualifications of voters, which are obviously separable and displaced by general laws, if invalid, and the validity of the repealing clause and the paving and assessment provisions, there is not the slightest doubt in our minds. To invalidate the repealing clause, substantially all, if not all, of the act would have to be unconstitutional. Lewis' Suth. Stat. Con. § 245; Ely v. Thompson, 3 A. K. Marsh (Ky.) 70; State v. Blend, 121 Ind. 514, 23 N. E. 511, 16 Am. St. Rep. 411; Randolph v. Builders', etc., Co., 106 Ala. 501, 17 South. 721; State v. Thomas, 138 Mo. 95, 39 S. W. 481; McAllister v. Hamlin, 83 Cal. 361, 23 Pac. 357. In the main this act is valid.

Nor has there ever been any final adjudication to the contrary, if such an adjudication would affect the question now under...