Harrold v. City of Huntington
| Decision Date | 23 June 1914 |
| Citation | 82 S.E. 476,74 W.Va. 538 |
| Parties | HARROLD v. CITY OF HUNTINGTON. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Contracting for street improvement to be paid for out of a city's current revenues is not "creating a debt" within the meaning of section 8, art. 10, of the Constitution.
It will not be presumed, because a city has not the fund in its treasury with which to pay for the work at the time it contracts for it, that it has not made ample provision for payment out of its current levy.
The courts will indulge every reasonable presumption in favor of the validity of a city's contract, appearing on its face to be reasonable and within the general scope of the city's charter powers.
A resolution passed by a city council awarding a contract for street improvement will be presumed to have received the necessary two-thirds majority vote of councilmen present at the meeting, when the minute contains no record of the vote.
A contract for street improvement need not be in writing and signed on behalf of the city in order to be binding.
A trial court has discretion to reopen a case at the request of either party, after it has been closed and before it has gone to the jury, and admit evidence to prove an omitted fact.
Error to Circuit Court, Cabell County.
Action by George W. Harrold against the City of Huntington. Judgment for plaintiff, and defendant brings error. Affirmed.
Simms Enslow, Fitzpatrick & Baker and Marcum & Shepherd, all of Huntington, for plaintiff in error.
Wyatt & Graham, of Huntington, for defendant in error.
Plaintiff recovered a judgment in the circuit court of Cabell county against the city of Huntington on the 30th of November, 1907 for $266.74, balance claimed by him to be due on a contract for the laying of sewer pipe, and defendant was awarded this writ of error.
The suit is for the price of laying 46 feet of 24-inch sewer pipe, at $2.09 a foot, and building three manholes at $20 each. Plaintiff had laid 1,800 feet of sewer pipe under the same contract, which was paid for; but the city is resisting payment for the 46 feet and the three manholes, on the ground that the work was not done in a workmanlike manner and according to specifications.
The case was tried by a jury, and a number of exceptions were taken to the rulings of the court. The first point made in brief of counsel is that the city had no right to undertake the improvement at that time, because its street fund was overdrawn and it is forbidden, by section 8, art. 10, of the Constitution, to create a debt without a vote of the people. The fact that the funds in the city's treasury were overdrawn is not alone sufficient to prove that it was "creating a debt," within the meaning of the constitutional provision, by contracting for the improvement. In the absence of evidence to the contrary, it must be presumed that the city had made provision for the improvement out of the current revenues, that it had made the necessary levy to meet the city's portion of the expense which was the one-third. The other two-thirds, by virtue of its charter and an ordinance passed pursuant thereto, was to be assessed as a special tax on the lots abutting on either side of the street in which the sewer was laid, provided such special tax should not exceed 50 cents per front foot on any lot. This special assessment, of course, had to be made after the work was undertaken, and, as to that part of the cost, it was not in any sense the city's debt; the lot owners being alone liable for it. Providing for the cost of street improvement out of current revenues is not creating a debt within the meaning of the Constitution, prohibiting counties, cities, school districts, and municipal corporations from creating a debt. Davis v. Wayne County Court, 38 W.Va. 104, 18 S.E. 373; Clay Co. v. New Martinsville, 67 W.Va. 525, 68 S.E. 118. In the absence of evidence to show that the city had not, by ordinance, made ample provision in its levy to pay for the work contracted for, it must be presumed that it did so provide, and that it proceeded lawfully in undertaking the improvement in question. Armstrong v. Taylor County Court, 41 W.Va. 602, 24 S.E. 993; Hanley v. County Court, 50 W.Va. 439, 40 S.E. 389.
It is urged that the contract is not binding on the city because it does not appear that it was awarded to plaintiff by a two-thirds majority vote of the councilmen present at the meeting. Section 42 of the city charter (chapter 150, Acts 1901) reads as follows:
"No money shall be appropriated by the council, and no contract on behalf of said city shall be entered into or authorized, nor shall any ordinance be passed unless two-thirds of the members present when the question is put concur therein; or unless the same be concurred in at two successive regular meetings of the council, held at different dates, by a majority of the members present at each meeting."
The city, by regular ordinance, had authorized the construction of lateral sewers in many of the avenues, streets, and alleys of the city, either by itself under the direction of the proper officers of the city or upon the lowest and best terms after advertising for bids, and provided that payment of two-thirds of the cost should be made by means of special assessments to be levied upon the lots abutting upon either side of the street or alley, provided it did not exceed 50 cents per lineal foot of lot. That ordinance embraced the streets in which the sewer in question was laid. A resolution adopted by the city council on January 18, 1906, reads as follows:
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