Heavner v. City Of Elkins

• Citation: 71 S.E. 184,69 W.Va. 255
• Parties: HEAVNER et al. v. CITY OF ELKINS et al.
• Decision Date: 25 April 1911
• Court: West Virginia Supreme Court

69 W.Va. 255
71 S.E. 184

HEAVNER et al.
v.
CITY OF ELKINS et al.

Supreme Court of Appeals of West Virginia.

April 25, 1911.

(Syllabus by the Court.)

Constitutional Law (§ 290^*)—Due Process of Law—Assessment.

An assessment by a city upon lot owners for cost of paving a street is not contrary to amendment 14 of the national Constitution, or section 10 of article 3 of the state Constitution (Code 1906, p. li), either because the assessment is by the number of front feet of lots abutting on the street, or because there was no notice of such assessment to the lot owners.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 871-875; Dec. Dig. § 290.*]

Appeal from Circuit Court, Randolph County.

Bill by John E. Heavner and others against the City of Elkins and others. Decree for defendants, and plaintiffs appeal. Affirmed.

[71 S.E. 185]

James A. Bent, for appellants.

Samuel T. Spears, for appellees.

BRANNON, J. Under power given it by Acts 1905, c. 6, amending section 28 of its charter act, the city of Elkins caused certain of its streets to be paved, and assessed two-thirds of the cost upon owners of lots fronting on those streets. Such taxes or assessments were placed in the hands of its collector for enforcement of payment, and certain chancery suits to enforce such assessments as liens upon the lots charged therewith were instituted in the circuit court of Randolph county against certain lot owners, and other suits were about to be brought for the same purpose against other lot owners. John E. Heavner, George W. Adamson, and Seymour Harper, residents and taxpayers of the city, suing on behalf of themselves and all other citizens, property owners, and taxpayers of the city whose property was so assessed, sued out an injunction to restrain the city and its tax collector from levying the said assessments upon their property, and also to restrain the further prosecution of suits then pending, and to restrain the city from instituting such other suits. The decree in the case was one dissolving the injunction and dismissing the bill, from which decree Heavner and Adamson appeal.

This case is an important one in principle. It involves the right of municipal corporations to improve their streets by paving and otherwise and charge the cost thereof to abutting lot owners. This is an important function of cities and towns, essential, not merely to their beautification, but also to convenience in the use of the streets and the public health. In these days of large population and large business the power is indispensable. That power has been frequently sustained as constitutional and valid. City of Parkersburg v. Tavenner, 42 W. Va. 486, 26 S. E. 179; Hager v. Melton, 66 W. Va. 62, 66 S. E. 13; Chadwick v. Kelly, 187 U. S. 540, 23 Sup. Ct. 175, 47 L. Ed. 293. However, this power is not contested in this case. This case is also important in the respect that it is the first case in this state directly involving the power of a city to fix the amount of such assessment by the...