Fought v. Mureoch.

• Decision Date: 12 December 1933
• Docket Number: (No. 7652)
• Citation: 114 W.Va. 445
• Court: West Virginia Supreme Court
• Parties: Willie Fought v. Allen C. Mureoch et al.

114 W.Va. 445

Willie Fought

v.Allen C. Mureoch et al.

(No. 7652)

Supreme Court of Appeals of West Virginia.

Submitted October 10, 1933.

Decided December 12, 1933.

1. Municipal Coeporations

The power of municipalities to lay special levies for local improvements must be granted by express words or necessary implication, and any reasonable doubt of the right to impose the levy will be4 resolved in favor of the property owner.

2. Municipal Corporations

A municipal charter provides that the cost of paving and sewering streets and alleys shall be charged to the owners of the abutting property, but excepts "lots or parts of lots or property against which no assessment can be legally made". The general law (adopted by the charter in so far as not inconsistent therewith) authorizes special assessments by municipalities for sewering subject to the limitation that when a corner lot has been assessed on one end it shall not be assessed on the side. Held: That a corner lot which has oeen assessed for the construction of a sewer line on the end may not be assessed for sewering along the side.

Error to Circuit Court, Wood County.

Certiorari proceeding by Willie Fought against Allen C. Murdoch, as Mayor of the City of Parkersburg, and others, to review respondents' action in levying special assessment. To review an order dismissing the petition on demurrer, the petitioner brings error.

Reversed and remanded.

Wm. Bruce Hoff, for plaintiff in error.

Dan B. Leonard, for defendants in error.

Litz, Judge:

Petitioner, Willie Fought, instituted this proceeding in certiorari in the circuit court of Wood County to review the action of defendants, Allen C. Murdoch, as mayor of the City of Parkersburg, and C. Gail Hitt, G. W. Abels, Vinton Murphy, and George Huber, as members of the city council, in levying a special assessment against a corner lot owned by him in Parkersburg for the construction of a sewer line along the side thereof after it had been assessed for sewering on the end. The trial court dismissed the petition on demurrer.

The pertinent parts of the city charter (Chapter 1, Municipal Charters, Acts 1929), providing for the levying of special assessments for street improvements, follow: "The council of the City may cause any street, alley or public place, or any part thereof, to be paved, repaved, or resurfaced with cobble stone, brick, concrete, or other suitable material, curbing and suitable sidewalks laid, and a sewer or sewers to be constructed therein, or to have such paving and/or sidewalks thereon constructed without the construction of such sewer or sewers, or such sewer or sewers constructed without such paving, * * * the whole cost thereof, subject to the provisos hereinafter contained * * *, shall be assessed to and paid by the owners of the lots, or fractional part of lots abutting or abounding on that part of the street, alley or public place so improved, paved or sewered, and against the said lots or fractional parts of lots in proportion to the number of feet frontage of each, * * * provided, that the cost of paving and sewering intersections of streets, public alleys or public places, and the proportion for lots or parts of lots or property against which no assessment can be legally made, shall be assessed to and paid by the city * * *." Section 48a. "All general and special laws of the State of West Virginia, governing cities, not inconsistent with the provisions of this act, shall apply to and govern the city of Parkersburg." Section 3. The general law (section 3, article 9, chapter 8, Code 1931), authorizing special assessments by municipalities for sewering, is subject to the following limitation: "Where a corner lot has been assessed on one end it shall not be assessed on the side."

Petitioner contends that as the charter provisions for sewer assessments must be liberally construed in favor of the taxpayer, and since the provisions themselves contemplate instances in which "lots or parts of lots" cannot be legally assessed, the statutory limitation should be applied.

The power of municipalities to lay special levies for local improvements must be granted by express words or necessary implication, and any reasonable doubt of the right to impose the levy will be resolved in favor of the property owner. Dancer v. Town of Mannington, 50 W. Va. 322, 40 S. E. 475; Cain v. City of Elkins, 57 W. Va. 9, 49 S. E. 898. Applying this rule of construction, we are of opinion that the assessment in question is unauthorized.

Respondents, contending that the assessment is authorized under the charter, for the validity of such authority, rely on the general rule stated in 5 McQuillian Municipal Corporations, sec. 2205, p. 687, and 44 C. J. 551, that a corner lot may be assessed for municipal improvements made in either street on which it abuts. The only cases, however, cited by either authority, dealing with sewering assessments, are People v. Adams, 18 N. Y. S. 443; Rich v. Woods, 82 S. W. (Ky.) 578; Geeser v. McLane, 161 S. W. (Ky.) 1118; City of Covington v. Schlosser, 133 S. W. ...