Hager v. Melton, Sheriff.
| Decision Date | 26 October 1909 |
| Citation | 66 W.Va. 62 |
| Court | West Virginia Supreme Court |
| Parties | Hager v. Melton, Sheriff. |
A decree, denying relief on a cross-bill, or answer in the nature thereof, the averments of which are sufficient, but are not sustained by evidence taken in proper form, but the existence of which is disclosed by affidavits, which the trial court erroneously permitted to be filed as evidence, on the hearing, over objections, will be reversed and the cause remanded, to allow such evidence to be taken and filed in regular and proper form, if the appellate court can see the. party would be entitled to the relief asked for in such answer when the evidence shall have been so taken. (p. 69.)
2. Equity Pleading Special Replication.
Facts set up in an answer, praying affirmative relief, which are merely defensive to an allegation of the bill, do not constitute new matter, within the meaning of the statute, requir ing a special replication to an answer, and are sufficiently denied by a general replication. (p. 71.)
3. Statutes Conditions Precedent.
If a statute provide that, an act done shall not become effective, unless and until certain other acts shall have been done, the additional things required are conditions precedent and must be performed before the principal act can have any force or effect. (p. 66.)
4. Municipal Corporations Ordinances Publication and Record Necessity.
A provision of a city charter, saying an ordinance, after passage, shall not go into effect, unless and until it shall have been published in a newspaper and, together with an affidavit to the fact of publication, recorded in a certain book, must be complied with before the ordinance can have any virtue or efficacy. (p. 66.)
5. Records Construction of Statute.
A statute requiring certain papers to be spread upon a named book is to be read as if it had said such papers should be recorded in such book. (p. 67.)
6. Same Recording Written Instruments Sufficiency.
As to what acts are sufficient to effect a recordation, the statute, requiring it, is to be interpreted in the light of its subject matter, and, in respect to the form of the record and the instrumentalities by which it is effected, more latitude is allowed when the legislative design is to provide a record to subserve temporary purposes, than when the record is intended to operate throughout a long period of time. (p. 68.)
7. Municipal Corporations Ordinances Recording Sufficiency.
Under a city charter requiring ordinances, imposing assessments, fines and penalties, other than ordinary annual levies, and other papers relating thereto, to be recorded in a certain book, it suffices to paste printed copies thereof on the leaves of the book, it appearing that enforcement of the liens and collection of the penalties within comparatively short periods of time after the passage of such ordinances are contemplated. Magers v. Edwards. 43 W. Va. 822; Atkinson v. Sutton, 23 W. Va. 497. (p. 68.)
S. Same Public Work Bids "Loivest."
A single bid for public work, made under due advertisement for such bids, pursuant to an ordinance requiring such method of letting contracts, authorizes a city council to contract with the bidder. The term "lowest/' used in such connection, is to be taken in its logical and practical, rather than its grammatical sense. (p. 72.)
9. Same Street Improvements Cost of Paving Street Intersections.
Under a city charter, imposing special assessments for street improvements and providing that two-thirds of the total cost of grading and paving any street or portion thereof shall be severally charged to the owners of land abutting thereon in such proportion as the frontage in feet of each owner's land, so abutting, bears to the total frontage of all land so abutting, authorizes inclusion and apportionment, in the estimate, of the cost of paving street intersections or crossings. (p. 73.)
10. Same Street Improvement Abatement from Liability.
If, under a city charter, silent as to charges against street railway companies for the cost of paving between the rails of the track and along the sides thereof, the council, by ordinance, impose such a charge, an abutting property owner is not entitled to the benefit of any portion thereof by abatement from the amount with which he is chargeable by the terms of the charter. (p. 75.)
11. Same Special Assessments Penalties Lien.
A provision in a city charter saying special assessments, with penalties, therein imposed, added, shall be treated and considered, and payment thereof enforced in all respects as provided in the charter for the collection of taxes clue the city, and that there "shall be a lien therefor, the same as for such other taxes, which lien may be enforced the same as provided for other taxes, '' gives a lien for the penalties as well as for the assessments, enforcible by any means provided for the enforcement of the latter, (p. 76.)
12. Same Special Assessments Adjacent Lots of Same Owner.
A charter provision, authorizing special assessments against property, without requiring the assessments to be made against separate lots, leaves it in the discretion of the council as to whether adjacent lots, fronting on the same street, and owned by the same person, shall be charged separately, each according to its own frontage, or all, according to their total frontage, as a single tract, and an assessment against all is valid. (p. 76.)
13. Taxation Sale for TaxesIrregularities.
Sale of property, as delinquent for non-payment of a valid tax, cannot be enjoined for mere irregularities in the return of delinquency or notice of sale. (p. 76.)
14. Municipal Corporations Special Assessments Suit to Enjoin Sale Affirmative Relief to City.
In a suit brought to enjoin the sale of property as delinquent for non-payment of city taxes, on the ground of invalidity of the tax, the city, if authorized by its charter to enforce its lien for the taxes by suit in equity, and the tax is valid, may have a decree for the enforcement of the lien, as upon a crossbill, by praying such relief in its answe. (p. 77.)
Appeal from Circuit Court, Kanawha County.
Suit by Nancy Hager against J. J. Melton, Sheriff, the City of Charleston, and others. Decree for plaintiff, and the city appeals.
Reversed and Remanded.
Upshur Higginbotham, W. S. La id I eg, and Alexander & McCabe, for appellant.
J. W. Kennedy and Morgan Owen, for appellee.
POFFENBARGEK., JlJDGE:
The City of Charleston complains of a decree of the circuit court of Kanawha county, perpetually enjoining the sheriff of said county from selling certain lots, owned by Xancy J. Hager, to enforce the city's lien thereon for street paving. The property was certified to the Auditor of the State, as delinquent for non-payment of these assessments, and he certified it to the sheriff of the county for sale as if delinquent for non-payment of ordinary taxes. The sale was enjoined, not merely for irregularity in the sale proceeding, such as defective notice or the like, but also for lack of right and power in the city to sell the property. The decree declares the assessment invalid, illegal and void, cancels and sets it aside as constituting a cloud on the plaintiffs title, and orders the recordation of a copy of the decree in the clerk's office of the county court, to operate as a complete discharge and release of the alleged assessment and lien.
The alleged grounds of invalidity in the lien and sale proceedings are, (1) that the ordinance under which the paving was done never became operative or took effect, because it was not published and the evidence of the publication thereof recorded in the manner prescribed by the charter; (2) the eontract for the work was not let to the lowest bidder; (3) the assessment was made against three lots as a whole and not against the lots separately, on an apportionment made; (4) the assessment includes apportionment to the plaintiff of the cost of paving street crossings, not authorized by the law; (5) no al lowance is made for a portion of the cost of paving paid by the street railway company; (6) property cannot be sold for nonpayment of special assessments, unless certified for sale for other taxes at the same time; (7) the return of delinquency is defective, the affidavit appended to the list being insufficient; (8) the notice of sale is misleading and insufficient.
Section 20 of the charter of the city, passed in 1895, as amended by chapter 36 of the Acts of 1899, provides "that no order, or ordinance imposing, or providing for the imposition of, any assessment, fine or penalty, other than the ordinary annual levy of city taxes, shall * * * go into effect unless and until it shall have been published once a week, for two successive weeks, in some newspaper of general circulation in, and published in, said city, nor unless, and until, the affidavit of the publisher of said paper to such publication be returned to, and spread upon the journal of, the council." The inhibitory terms of this statute, saying no such ordinance shall go into effect unless, nor until, published and the affidavit of the publisher returned to and spread upon the journal, make these requirements clearly mandatory. 21 A. & E. Eng. Enc. Law 969. If the terms were not prohibitory, it would be, according to almost uniform authority, only directory, Id.; but, as the legislature has seen fit to use terms generally regarded by the courts as importing intention not to give effect or virtue to an act done in a manner different from that prescribed, we must respect the great weight of judicial opinion and the expression of legislative will as it is interpreted thereby. It is urged that this section was impliedly repealed by the amendment and reenactment of section 28 of the city charter by chapter 152 of the Acts of 1901, since said section 28, as so amended, grants powers and prescribes regulations, concerning the...
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