Foster v. City Of Charleston, No. 7329.

CourtSupreme Court of West Virginia
Writing for the CourtMAXWELL, J
Citation165 S.E. 670
PartiesFOSTER et al. v. CITY OF CHARLESTON.
Decision Date13 September 1932
Docket NumberNo. 7329.

165 S.E. 670

FOSTER et al.
v.
CITY OF CHARLESTON.

No. 7329.

Supreme Court of Appeals of West Virginia.

Sept. 13, 1932.


Syllabus by the Court.

Where, by reason of mistake of a city council in laying an assessment against certain properties for street improvements, an excessive amount is collected of the owners of said properties, and council later by formal resolutions recognizes the mistake and orders reimbursement, mandamus will lie to require the laying of a levy to provide funds for the reimbursement.

Original proceeding in mandamus by W. A. Foster and others against the City of Charleston.

Writ of mandamus awarded.

[165 S.E. 671]

W. W. Wertz and S. H. Ballard, both of Charleston, for relators.

Charles Ritchie, City Sol., and Philip H. Hill, Asst. City Sol., both of Charleston, for respondent.

MAXWELL, J.

By this proceeding in mandamus the relators would require the city of Charleston to lay a sufficient levy upon the taxable property within the corporate limits of said city to pay to them the sum of $3,116.24 on account of assessments paid by them for the paving of Beech avenue between Hazel and Laurel avenues in said city in 1918.

Upon completion of the paving, W. A. Foster and others, relators, owners of properties abutting said improved section, prior to the laying of the assessments protested against there being included by the city engineer in his estimate certain charges on "force account" as partial basis upon which the several assessments should be laid. A committee of the council was appointed November 18, 1918, to investigate the matter.

Action on the engineer's report was deferred pending report of the committee. The committee reported October 20, 1919, that the settlement with the contractor should be on the basis of the contract. ("Force account" not included.) Final report of the engineer was filed on the same date, and opportunity was afforded persons interested to make objections pursuant to notice which is recited to have been given. The record does not disclose that any objections were then made. Thereupon, on said date, the assessment was laid.

The council by resolution of April 18, 1921, recited that through mistake an excessive amount had been included in the assessment of October 20, 1919, and directed the city engineer to submit a corrected report. By order of May 2, 1921, council specifically directed the engineer to base his revised report on the bid and proposal of the contractor for the paving of Beech avenue, "but excepting therefrom the amount charged to 'force account, ' amounting to $3,116.24."

By the said resolution of April 18, 1919, the council sought to recall and...

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2 practice notes
  • City of Wheeling v. John F. Casey Co., No. 4134.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 6, 1937
    ...of Appeals of the state of West Virginia. Fisher v. City of Charleston, 17 W.Va. 595, 597; Foster v. City of Charleston, 112 W.Va. 510, 165 S.E. 670; Wells v. Mason, 23 W. Va. 456; Wilson v. County Court of Clay County, 114 W.Va. 603, 175 S.E. 89 F.2d 312 It seems unnecessary to repeat the ......
  • Edwards v. State Comp. Com'r, No. 7381.
    • United States
    • Supreme Court of West Virginia
    • September 13, 1932
    ...of the month; that he forgot to return it to the contractor (Hughes) for whom he was working at that time; and that he did not wear the[165 S.E. 670]trousers again because of their ragged condition, until the day of the accident, when he put them on because it was "kinda cold." As to the lo......
2 cases
  • City of Wheeling v. John F. Casey Co., No. 4134.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 6, 1937
    ...of Appeals of the state of West Virginia. Fisher v. City of Charleston, 17 W.Va. 595, 597; Foster v. City of Charleston, 112 W.Va. 510, 165 S.E. 670; Wells v. Mason, 23 W. Va. 456; Wilson v. County Court of Clay County, 114 W.Va. 603, 175 S.E. 89 F.2d 312 It seems unnecessary to repeat the ......
  • Edwards v. State Comp. Com'r, No. 7381.
    • United States
    • Supreme Court of West Virginia
    • September 13, 1932
    ...of the month; that he forgot to return it to the contractor (Hughes) for whom he was working at that time; and that he did not wear the[165 S.E. 670]trousers again because of their ragged condition, until the day of the accident, when he put them on because it was "kinda cold." As to the lo......

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