Holswade v. City Of Hunting. Ton

• Decision Date: 01 April 1924
• Docket Number: (C. C. No. 291.)
• Citation: 122 S.E. 449
• Parties: HOLSWADE et al. v. CITY OF HUNTING. TON et al.
• Court: West Virginia Supreme Court

122 S.E. 449

HOLSWADE et al.

v.CITY OF HUNTING. TON et al.

(C. C. No. 291.)

Supreme Court of Appeals of West Virginia

April 1, 1924.

(Syllabus by the Court.)

Certified Questions from Circuit Court, Cabell County.

Action by J. F. Holswade and others against the City of Huntington and others. A demurrer to the bill was sustained in part and overruled in part, and the questions arising thereon certified. Ruling sustained in part, reversed in part, demurrer to bill sustained, and cause remanded.

Livczey & McNeer, of Huntington, for plaintiffs.

C. W. Strickling, of Huntington, for defendant City of Huntington.

Paul W. Scott, of Huntington, for defendant Harrison & Dean.

LIVELY, J. Having sustained in part and overruled in part a demurrer to the bill and each paragraph thereof, the court on joint application and its own motion certified its ruling to this court for review.

The bill is by abutting property owners on Eighth street and Third avenue, and as citizens and taxpayers of the city of Huntington against the city, as a municipal corporation, and Harrison & Dean, with whom the city has contracted for permanently improving the named streets in certain portions of the city by paving, and seeks to enjoin the city and its contractors from performing the contract, alleging that the ordinances under which it was made and the contract in pursuance thereof are illegal, null, and void.

The city proceeded under its charter powers to repave the designated streets, and perhaps portions of other streets, with brick laid on a concrete base, by contracting therefor, after competitive bids, with its codefendants, under the method authorized in the charter of issuing certificates of assessment for the entire improvement upon the abutting adjacent or contiguous lots especially benefited, in the proportions in which they are especially benefited by the improvement. Section 65(c), c. 78, Acts 1923. These streets having originally been paved at the partial expense of the abutting landowners, the bill challenges the power of the city under the charter or under general law to repave the same at the expense of the abutting property owners; and challenges the validity of the contract because the ordinances and procedure culminating in the paving contract were not enacted or conducted in the manner and form required by the charter; because the assessments proposed are confiscatory and of no special benefit to the abutting property, and the acts of the commissioners in so ordering the paving were arbitrary and capricious; that the individual representations of the character of the proposed improvements made by two of the commissioners were deceitful and amounted to fraud on plaintiffs; that the ordinance is void, because the total cost is to be assessed against abutting property, whereas two feet of the space on either side of the street railway tracks should be paid by the traction company; because the ordinance is ultra vires, the city being without authority to assess and make liable the Marshall College lot abutting on Third street for its portion of the cost of improvement; and because the contract is not in accord with the bids; the price agreed to be paid excessive, and the contractor allowed to take the. old brick at an inadequate price.

The court held that plaintiffs could maintain the bill as abutting property owners and also as residents and taxpayers on behalf of all other residents and taxpayers who desired to join as plaintiffs under the theory that all other taxpayers not abutting were pecuniarily interested. The bill charges that the city has no right to assess the Marshall College property for that portion of the paving along its lot, which will amount to about $16,000, and that the city will likely be liable for this amount out of its general revenues, if not paid by the state, and that the city now has no available funds out of which that contingent debt can be paid.

The charter, section 63, provides that, if the assessment method be adopted for making the improvement, "the city in negotiating and selling such certificates shall not be held as guarantor or in any way liable for the payment thereof, except upon direct action of the board of commissioners as expressed by resolution of record." There has been no expression of record that the city will guarantee or be liable for the paving along the college' site, and until that be done we do not see how the general taxpayers will be affected as such. The form of paving assessment certificate is given in the charter and adopted by the ordinance, and in the form it is certified that all acts, conditions, and things required to be dene precedent to the letting of the contract, equalizing and making of the assessment and issuance of the certificates, have been done as required by the charter and the Constitution and laws of the state. Counsel for plaintiff argues that the college property cannot be made liable to the payment of such a certificate issued against its lot, and eventually the city will be compelled to pay it, especially if the certificate should go into the hands of an innocent purchaser for value. The law under which these certificates are issued is as much a part thereof as if written therein, and the contractor, as well as any purchaser, is charged with notice that the city does not guarantee them and is in no way liable. The contractor takes them at his own risk. The certificates are not negotiable, they are not promises to pay, and any holder would be in no higher right than the contractor. It is quite generally held that the municipality is not liable for payment of void or unenforceable certificates, unless the contract makes it liable. McQuillin, Munic. Corp. vol. 8, p. 774, citing, among others, the cases of Enid v. Warner-Quinlan Asphalt Co., 62 Okl. 139, 161 Pac. 1092; Vulcanite, etc., Paving Co. v. Philadelphia, 239 Pa. 524, 86 Atl. 1086; Donahue v. La Grange, 263 Ill. 607, 105 N. E. 762.

We do not see any pecuniary interest in the general taxpayers which would be affected as the case now stands. The demur-rer to that part of the hill in which plaintiffs sue on behalf of the general taxpayers should have been sustained. The ordinance and contract are not void because a part of the paving is to be laid by the college property, a part of which abuts on Third street. The demurrer was properly sustained to that part of the bill, paragraph 10, which charged the ordinance as void because defendant was without power to assess the state property occupied as a college on Third Avenue, and that the city had made no appropriation and had no funds available for that part of the paving.

Paragraph 3 of the bill charges that the streets proposed to be paved were formerly paved in 1891 to 1894, and that two-thirds of the cost of the improvement was assessed to and paid by the then abutting owners; and paragraph 5 charges that at the time of the enactment of the ordinance complained of, the pavement ordered to be relaid was in good serviceable condition and repair, and that it was the duty of the city to keep and maintain the same in good repair out of the general revenues of the city and not at the cost of the abutting property owners. The demurrer to these paragraphs was overruled. Standing by themselves they state a fact and a duty which may be readily accepted. It is the duty of the city to keep its streets in repair out of the general revenues when once opened and improved for public use. But the proposition at issue is not one of repair but of permanent improvement; and these paragraphs, considered in connection with other parts of the bill, bear upon the crucial question of the right and power of the city to repave its streets at the expense of the abutting landowners, under the assessment plan, after having originally paved the streets at the partial expense of the abutting property owners. It is insisted by plaintiff that the city has no such authority. It is pointed out that the Pennsylvania courts hold that assessments cannot be made against abutting property for repaving. Hammett v. Philadelphia, 65 Pa. 146, 3 Am. Rep. 615; Harrisburg v. Segelbaum, 151 Pa. 172, 24 Atl. 1070, 20 L. R. A. 834. It is urged that this rule should be adopted in this state. While it is admitted that the general rule is otherwise, it is contended that reason and logic support the Pennsylvania holding. Counsel for defendant in argument say the Pennsylvania rule is contrary to that adopted in every other state and by the federal courts, including the Supreme Court of the United States. We find the vast weight of authority supports the proposition that a municipality, after it has once paved a street may again repave it and charge the cost to abutting property owners. 25 R. C. L. 103; 1 Page and Jones, Taxation by Assessment, §§ 379, 389; Hamilton, Law Special Assessments, § 249; Smith v. Washington, 20 How (U. S.) 135, 15 L. Ed. 858. A citation to numerous cases will be found in section 381 of 1 Page and Jones, above cited. It would be useless to repeat the reasons for the rule stated in these cases.. The inquiring mind is directed to them. Local assessment for improvements of that character is a function of the Legislature, and these cases in substance hold that there is no reason for holding that the power of the state is exhausted after it has once authorized a local assessfor such an improvement; that no implied contract exists between the property owners and the municipality or the state that the improvement when once worn out shall be replaced out of the general revenues. If the Legislature has authorized local assessments for repaving, then the municipality has that right. Such is the substance of these holdings, and the reasons given are forceful. But, whether we follow the Pennsylvania doctrine or that announced by the majority of the decisions (the latter, we think, is the proper doctrine), the Legislature has accorded to the city in its charter the power to repave its...