State ex rel. Knight v. Hanway

• Citation: 67 S.E.2d 1,136 W.Va. 219
• Decision Date: 23 October 1951
• Docket Number: No. 10410,10410
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. KNIGHT, v. HANWAY, Mayor of Fairmont.

Page 1

67 S.E.2d 1

136 W.Va. 219

STATE ex rel. KNIGHT, v. HANWAY, Mayor of Fairmont.

No. 10410.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 5, 1951.

Decided Oct. 23, 1951.

Syllabus by the Court.

1. Approaches to a toll bridge, within the meaning of Chapter 27 of the Acts of the Legislature of 1933, Second Extraordinary Session, include such access ways as may be reasonably necessary to afford full use and capacity of the bridge and the maximum safety in the use thereof.

2. The City of Fairmont, by virtue of Chapter 27 of the Acts of the Legislature of 1933, Second Extraordinary Session, is vested with power to provide necessary approaches to a toll bridge over the Monongahela River, and to make proper improvements thereof, including the construction of a viaduct, notwithstanding a part of such approaches and improvements may be approximately one-half mile from the bridge structure, and the city may pay for the same from proceeds received from revenue bonds, it appearing that such approaches and improvements are reasonably necessary to the full use and capacity of the bridge and the maximum safety in the use thereof.

3. The City of Fairmont is vested with authority to condemn easements, rights-of-way, and other rights in real property, to be used in connection with a toll bridge, or its approaches, to be constructed or operated under the authority granted the city by Chapter 27 of the Acts of the Legislature of 1933, Second Extraordinary Session.

4. The City of Fairmont is authorized to create a lien 'by mortgage or deed of trust' or to cause or permit a 'statutory mortgage lien' upon a toll bridge and its approaches, including improvements thereon, authorized to be constructed or operated by virtue of Chapter 27 of the Acts of the Legislature of 1933, Second Extraordinary Session, only to the extent that the bridge, its approaches and improvements, were 'acquired or constructed from the proceeds of bonds' issued pursuant to the provisions of that act.

Tusca Morris, Fairmont, for relator.

John L. McIntire, Fairmont, for respondent.

GIVEN, Judge.

In this original proceeding in mandamus petitioner, Albert B. Knight, a resident and taxpayer of the City of Fairmont, a municipal corporation, seeks to have the respondent, James H. Hanway, Mayor of Fairmont, execute revenue bonds in the amount of $3,500,000 for the construction of a toll bridge over the Monongahela River, within that city. Respondent demurred to the petition, and also filed an answer thereto. Petitioner filed his demurrer to the answer. The answer of respondent states: 'That all allegations of fact contained in the said petition are true.'

Material allegations of the petition are to the effect that the City of Fairmont, operating under a charter enacted by the Legislature of the State of West Virginia, by its board of directors, the legislative body of that city, on June 25, 1951, enacted an ordinance entitled: 'An Ordinance providing for the construction, maintenance and operation of a highway toll bridge across the Monongahela River in the City of Fairmont, West Virginia, including approaches thereto; and for the acquisition of all necessary rights of way and of franchises: Authorizing the issuance and sale of bridge revenue bonds of the City of Fairmont in the amount of $3,500,000, payable solely out of the revenues of such bridge; for the purpose of paying the cost of said improvements, prescribing the details and other matters with respect to said bonds and the construction and operation of said bridge and providing for the rights of the holders of said bonds;' and that, as disclosed by said ordinance, said board of directors made certain findings, as follows:

'1. Authority of this Ordinance

'This Ordinance is enacted pursuant to the provisions of Chapter 27, Acts of the Legislature of West Virginia, Second Extraordinary Session, 1933, as amended, and other applicable provisions of law.

'2. Findings

'It is hereby found, determined and declared as follows:

'(a) That after a hearing and consideration by this Board of Directors it has been determined that it will be in the public interest and in the interest and welfare of the citizens of the City of Fairmont for the City of Fairmont to construct, maintain and operate a highway toll bridge and approaches thereto within the City of Fairmont for public use in travel, passage and transportation over and across the Monongahela River, a navigable stream, the eastern approach thereto including a viaduct over and across a deep ravine and Morgantown Avenue therein, from Diamond Street to East Park Avenue, in accordance with the plans and specifications heretofore made and prepared by Hazelet & Erdal, Consulting Engineers for the City of Fairmont.

'(b) That the Governor of the State of West Virginia has approved in writing the construction of the aforesaid highway toll bridge in accordance with the aforesaid plans and specifications.

'(c) That the State Road Commission of the State of West Virginia has approved in writing the construction of the aforesaid highway toll bridge in accordance with the aforesaid plans and specifications.

'(d) That the City has heretofore obtained the permit and license required to be obtained from the Federal Government by the laws of the United States prior to the construction of the aforesaid highway toll bridge across the Monongahela River as a navigable stream.

'(e) That the aforesaid highway toll bridge and approaches when constructed in accordance with the aforesaid plans and specifications will form a connecting link between two State highways.

'(f) That the aforesaid highway toll bridge when constructed in accordance with the aforesaid plans and specifications will provide a river crossing for a State highway;'.

The petition further alleges that the bridge and its approaches 'constitute one essential and inseparable link for the connection between two State highways'; that the location of the bridge and approaches has been selected and determined in good faith by the proper authorities; that the bridge and approaches are necessary 'for the public use, safety and welfare of the citizens of said City of Fairmont, and for the residents, property owners and taxpayers thereof'; and that the sum of $3,500,000 will be necessary for the construction of the proposed project.

It appears that the roadway over the proposed bridge will lead directly into Third Street on the westerly side of the river and directly into Diamond Street on the easterly side of the river. Diamond Street extends in the same general direction as the proposed bridge and intersects Morgantown Avenue at approximately five-tenths of a mile from the bridge structure, and crosses Morgantown Avenue to East Park Avenue. It is at the intersection of Diamond Street with Morgantown Avenue that the construction of a viaduct is contemplated. If the viaduct is constructed and Diamond Street is improved as contemplated, traffic may move over Diamond Street between East Park Avenue and the bridge in a straight line, avoiding a number of turns at street intersections, and will then connect two State highways. Other material facts will appear in the discussion of the questions raised by the pleadings.

Respondent admits that he has refused to sign the bonds. The propositions advanced by him as justifying such refusal, as disclosed by his demurrer and his brief filed herein, in so far as necessary to a discussion thereof, are: (1) That the provisions of the Code, hereinafter quoted, do not authorize or empower the city to construct the approaches to the bridge; (2) that the city is not authorized to improve by widening, paving and grading Diamond Street, or to construct the viaduct, and to pay for the same out of the proceeds received from the bonds; (3) that the city has no power or authority to condemn land in connection with the proposed improvement of Diamond Street, or the construction of the viaduct; (4) that the city has no power or right to improve public streets, or to construct the viaduct, and pay for the same out of the proceeds of the bonds, for the use of the public, without requiring the payment of tolls therefor; and (5) that no authority exists in the city to cause or permit 'a lien of any kind or character to be placed upon the said Diamond Street, or other streets, and the viaduct proposed to be constructed over said deep ravine and said Morgantown Avenue for the protection of the holders of said bridge revenue bonds issued under said ordinance.'

The city claims power and authority to construct the bridge and issue the bonds by virtue of Chapter 27 of the Acts of the Legislature of 1933, Second Extraordinary Session, now Sections 30, 32 and 33 of Article 17, Chapter 17, of the Code. The material parts of Section 30 are: 'Any incorporated city, in which or adjoining which there is a portion of a navigable or non-navigable river or stream, * * * is hereby authorized and empowered, in its corporate capacity, or through and by means of a bridge commission or other agency to be created or appointed by it, to construct, maintain and operate a highway toll bridge over and across such river or stream, from such a point within the corporate limits of such city, to such point on the opposite side of such river or stream, * * * as the said city, through its proper authorities, shall designate and select, for public use in travel, passage and transportation, over and across such river or stream: Provided, however, that no bridge shall be constructed, established or operated, over and across any navigable river, without compliance with the requirements, conditions and provisions provided by the Congress of the United States and the laws of the United States, nor without approval of the state road commission of this State; and such city is authorized and empowered to borrow money by means of bonds payable from revenues, or otherwise, and/or to accept grants in part...