Mccrowell v. City Of Bristol

• Decision Date: 16 February 1893
• Parties: McCROWELL v. CITY OF BRISTOL et al.
• Court: Virginia Supreme Court

16 S.E. 867

89 Va. 632

McCROWELL

v.CITY OF BRISTOL et al.

Supreme Court of Appeals of Virginia.

Feb. 16, 1893.

Municipal Corporations — Construction op Sidewalk—Validity op Ordinance — Determination of Width — Collection of Expense prom Personal Property.

1. An ordinance authorizing the city to "grade" a certain street, "and lay sewer on same, and require the property owners to lay or pay for a granolithic pavement on same in front of their respective properties, " does not authorize the construction of a sidewalk in such street at the expense of the property owners.

2. Under Bristol City Charter, § 24, which authorizes the council "to have the sidewalks and gutters along any street within said city such width as they may prescribe, properly paved, and otherwise improved, " etc., an ordinance authorizing the construction of a sidewalk which leaves the determination of its width to the street committee and city engineer is void.

3. Bristol City Charter, § 24, which authorizes the council to make certain street improvements at the expense of the abutting lot owners, "and to levy and collect such local assessment on each of such lots, " does not authorize the collection of such tax from personal property of the lot owner.

Appeal from corporation court of Bristol.

Bill by John McCrowell against the city of Bristol and J. L. C. Smith, treasurer, to restrain the collection of an assessment for street improvement. Defendants had decree, and plaintiff appeals. Reversed.

Fulkerson, Page & Hurt and D.F. Baily, Tor appellant.

W.S. Hamilton, for appellees.

Richarpson, J. This was a suit in equity in the corporation court of thecity of Bristol, wherein John McCrowell was plaintiff, and the city of Bristol and J. L. C. Smith, treasurer of said city, were defendants. The object of the suit was to perpetually enjoin and restrain said city and its said treasurer from collecting the amount of a certain local assessment levied by said city as and for the cost of a granolithic sidewalk pa vement constructed and laid along the front of said Mc-Crowell's property, on Main street, in saidcity of Bristol. The material facts, so far as they can he collected from a wretchedly made up record, are these: Prior to and at the time of laying the pavement in question, the appellant was the owner of two lots, fronting 198 feet on Main street, in the city of Bristol; and in the year 1889, prior to the improvement and assessment in question, he had, at his own expense, laid a pavement, eight feet in width, along the entire front of his said property, a part of which was of dressed stone, and the residue of a composition known as "concrete." Sometime in the year 1890, (precisely when does not appear,) the city of Bristol entered into a contract with the Miller Paving Company for laying a granolithic pavement or sidewalk along said Main street, from Virginia street to Scranton street, which space includes the said property of the appellant. Subsequent to said contract, and during the said year of 1890, said Miller Paving Company, acting under the supervision and direction of the city eugineer and street committee of said city of Bristol, tore up, destroyed, and hauled away the pavement constructed by the appellant at his own expense, as aforesaid, and laid along the front of appellant's said property a granolithic pavement or sidewalk 10 feet wide, at a cost of $394, the whole of which, It is claimed by said city, was regularly and rightfully assessed against the appellant, and is, by virtue of the charter and certain ordinances passed by the council of said city, collectible as other taxes are collected by said city. Later, the treasurer of said city presented to the appellant for payment, tax tickets for two thirds of said assessment, the amount thereof claimed by said city to be then due; but the appellant, denying the validity of the charge against him, refused to pay the same, and thereupon said J. L. C. Smith, treasurer of said city, levied upon a certain 1(3 horse power' engine, the property of appellant, but not then, nor at any time, upon either of the said lots of appellant, in front of which said granolithic pavement was laid. The said treasurer having levied upon said enginefor the purpose of subjecting the same to sale for the payment of said tax tickets, the appellant presented his bill, setting forth substantially the facts above stated, and, denying on several grounds the validity of said assessment, prayed for an injunction restraining said city of Bristol and said J. L. C. Smith, treasurer, from proceeding to sell said steam engine, and from enforcing the collection of said taxes; and, on the 6th day of February, 1892, the injunction was a warded according to the prayer of the bill. The city of Bristol answered, denying every material allegation of the bill touching the alleged irregularity and invalidity of the assessment in auestion, and insisting that the same was made in strict accordance with the charter and ordinances of said city, and is therefore in every respect regular, valid, and binding. The defendant J. L. C. Smith, treasurer as aforesaid, also answered, admitting that he, as treasurer of said city, made the levy upon the property, as set forth m the bill, 'or the purpose of satisfying tax tickets in his hands, amounting to the sum of $262.66 1/2, that being the sum then due on said assessment under ordinances of the city. In other respects his answer is wholly immaterial. The cnuse, having been matured, was, on the 9th day of April, 1892, brought on and heard upon the bill of the complainant, the answers of the defendants, exhibits filed, and general replication to said answers, and on the motion of the defendants, by counsel, to dissolve the injunction theretofore awarded in the cause, when a decree was rendered therein, dissolving said injunction, and dismissing the complainant's bill; and from that decree the case is here on appeal.

Disregarding the appellant's specific assignments of error, the case may be considered and disposed of under the one general head: Was the alleged local assessment, for the cost of the granolithic pavement in front of appellant's property, made in pursuance of authority conferred by the charter of said city, and valid ordinances passed in pursuance thereof? The plaintiff (appellant here) charges in his bill that while, under the twenty-fourth section of the charter of said city, the council thereof, was authorized "to have the sidewalks and gutters along any street within said city, such width as they may prescribe, properly paved, or otherwise improved, repaired, and altered, at the proper cost and expense of the owners of the lands or lots along the fronts or sides of which such sidewalks or improvements may extend, and to levy and collect such local assessments on each of such lots or pieces of lands as may be necessary to pay for said improvements, said assessments to be collected in the same manner as other taxes are collected, " yet that said council has never, by ordinance or ordinances, made any provision for carrying out said provision of the charter, and has never prescribed the width of such sidewalks or of the gutters, but, on the contrary, delegated the whole matter to the city engineer and street committee of said city. The city of Bristol, in its answer, denies the allegation in the bill that no ordinances have been passed ny the council of the city carrying out said provision of the charter, and alleges that such ordinances have been passed, and with its answer exhibits certified copies of three ordinances, as follows: (1) An ordinance passed by said council on the 5th day of August, 1890, as follows: "Resolved, that the city of Bristol, Va., grade Main street from Virginia to Scranton streets, and lay sewer on the same, and require the property owners to lay or pay for a granolithic pavement on same, in front of their respective properties, between Virginia and Scranton streets, under the directions and supervisions of the street committee." (2) An ordinance passed on the 14th day of October, 1890, in these words: "Be it ordained by the council for the city of Bristol, Va., that all persons in front of whose property granolithic pavements have been ormay be laid, as heretofore provided by ordinance, shall pay for the same in three equal installments, —one third in the year in which the same is completed and accepted bv thestreet committee, and the balance in one and two years, in equal installments: provided, that any such person who may pay for the same within thirty days from completion as aforesaid, or from the time persons are notified of the same, shall be entitled to a discount of 10 per cent, on same; and any such sums as may be due as aforesaid shall be collected in the same manner as taxes are collected for said city." (3) An ordinance passed on the 19th day of October, 1891, as follows: "Section 1. Be it ordained by the council for the city of Bristol, Va., that all persons along whose property the city has or may lay down granolithic pavements, whether on the fronts or sides of the same, are hereby required to pay the actual costs and expenses of same to said city, except the costs and expenses of grading for said pavements and the sewer, which shall be paid by the city; and each of the said persons are required to pay for said pavement along his property on the following terms, to wit: One third in the year in which said pavements are constructed; the balance in two equal installments, of one and two years, respectively, from the completion of said pavement, with interest from date of said completion: provided, any person who desires to pay all of said costs and expenses of the pavement along his property as aforesaid within 'thirty days from the completion of the same shall have the benefit of 10 per cent, discount of the total amount. Sec. 2. The city engineer or surveyor shall furnish to the street committee, with a plan of the street on which the...