Heavner v. City of Elkins

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

71 S.E. 184

69 W.Va. 255

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

Supreme Court of Appeals of West Virginia.

April 25, 1911

Submitted March 4, 1910.

Syllabus by the Court.

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.

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.

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, string 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 S.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 front foot and also whether there must be notice at some stage of the proceeding to the lot owner. Counsel tells us that the assessments involved in this case are void as depriving persons of property without due process of law, and consequently violative of the fifth and fourteenth amendments of the Constitution of the United States and of the state Constitution in their prohibition against depriving persons of property without due process of law. I may remark that the fifth amendment has nothing to do with this case, as that is only a restraint upon the federal and not state government. However, this is immaterial, as the fourteenth amendment and the state Constitution contain the same provision.

The plaintiffs strongly urge that these assessments are void and contrary to such constitutional law, because the assessments were not made according to the benefits conferred upon each lot by the paving improvement, but by the frontage of the lots on the streets; that is, by the front foot. At one time it was a great question whether the assessment could be so made. Some state courts held that it could not be, but that the assessment must be measured by the benefits conferred on each lot. Violett v. Alexandria, 92 Va. 561, 23 S.E 909, 31 L.R.A. 382, 53 Am.St.Rep. 825. Such was the holding, as commonly construed, of Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443. But in French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879, that construction of the Norwood Case was repudiated. The common construction was that the Norwood Case condemned such assessment; but, if it did, it has been overruled or ignored by the Supreme Court. The well-considered case of French v. Barber Co., just cited, holds as follows: "The apportionment of the entire cost of a street pavement upon the abutting lots according to their frontage, without any preliminary hearing as to the benefits, may be authorized by the Legislature, and this will not constitute a taking of property without due process of law." This case has been followed in Tonawanda v. Lyon, 181 U.S. 389, 21 S.Ct. 609, 45 L.Ed. 908; Cass Farm Co. v. Detroit, 181 U.S. 396, 21 S.Ct. 644, 45 L.Ed. 914; Webster v. Fargo, 181 U.S. 394, 21 S.Ct. 623, 45 L.Ed. 912; Chadwick v. Kelly, 187 U.S. 540, 23 S.Ct. 175, 47 L.Ed. 293; Davis v. City of Lynchburg, 84 Va. 861, 6 S.E. 230. The Supreme Court has said: "A system of delusive exactness should not be extracted from the very general language of the fourteenth amendment in order to destroy methods of taxation which were well known when the amendment was adopted, and which no one then supposed would be disturbed." L. & N. Ry. Co. v. Barber Asphalt Paving Co., 197 U.S. 430, 25 S.Ct. 466, 49 L.Ed. 819. Thus we hold the assessment by the front foot is not an unconstitutional mode of assessment. What fairer mode of assessment?

This assessment is assaulted also on the ground that no notice was given the lot owners of the assessment. It is contended that where any proceeding deprivative of property takes place, the first requirement is that there shall be notice, and that, where there is none, is not due process of law, and the state and federal Constitutions are violated. That depends. That depends on the nature of the...