78 W. Va. 644 | W. Va. | 1916
From a decree sustaining defendant’s demurrer to and dismissing the bill, alleging irregularities in- the submission of a proposed bond issue and tax levy upon the real and personal property of Portland district, ■ Preston county, for the improvement of public roads therein, upon the petition of the requisite number of taxpayers within the district, and praying. an injunction inhibiting defendant from further proceedings in the matter of such improvement, the plaintiff Brown obtained this appeal.
The vital errors, if errors at all, relate to the manner of the submission of the proposed bond issue. It is contended the notice of the election should have been published in two newspapers of opposite polities and general circulation within the territory affected. There are two statutes applicable to such proceedings: §7, ch. 9, acts 1908, relied on by plaintiff; and §5, eh. 8, acts 2nd Ex. Sess. 1915, relied on by defendant. The first statute requires publication in the manner urged by appellant; the second, “in one or more newspapers of general circulation if published within the county or district affected”, and with which defendant complied. Although the later act does not purport to amend and re-enact the prior one, it does so by implication. It embraces the same subject matter, and contains the usual general provision that all acts and parts of acts inconsistent therewith are thereby repealed. Hence, the last statute controls. Besides, it does not appear
The second irregularity urged is that neither the petition seeking the election, nor the order of the county court submitting the matter to the voters of the district, definitely state the amount of the proposed indebtedness or levy. However, both furnish the data from which such amount may readily be ascertained. The petition' fixed, as the basis of the indebtedness proposed, five per cent of the total assessed valuation of the taxable property in the district for the last preceding fiscal year. The aggregate property values the county court, by its order of submission, ascertained to be, and which the notices published and posted show was, $5,646,071. This total, and the rate prescribed and fixed, served as the bases from which to compute the amount to be authorized for collection and disbursement for the purposes designated. Prom them any intelligent voter readily could by calculation determine the extent of the liability sought to be imposed upon the property of his district for road improvement purposes. Hence, it can not reasonably be said sufficient information upon the matter submitted for decision was not furnished to him. What may be ascertained with certainty by computation from data provided and available is deemed certain and definite and satisfies the legal. requirement pertaining to such issues.
Again, it is claimed the petition and the order of submission indefinitely described one of the roads to be improved as beginning at the Maryland line and extending to and through the town of Terra Alta, thence to and'through the town of Albright to the Pleasant district line, and, as two roads opened and used by the public exist between Terra Alta and Al-bright, the distance between the two points being three miles less by one route than by the other, the voters intended and it was the duty of the county court to select for improvement the shorter of the two highways. In the absence of a definite identification of the road contemplated, the county court was not deprived of the right to exercise the discretion vested in it by law to determine which of the two roads it would im
The fourth and last irregularity concerns the character of-the material to be used in the improvement of the roads specified. While the language used may perhaps engender some’ doubt when cursorily read, a careful examination will lead to the conclusion that the voters clearly understood and intended to consent to the use of concrete in the reconstruction of such roads. The language employed by the petitioners, so far as uow pertinent, and carried into the order of the county court, prays that “the proceeds arising from the sale of the bonds shall be used by the county court in relocating, grading and building or in the permanent improvement of the following named roads in such manner as is prescribed'by law, the roads to be improved by the proceeds of said bonds being as follows, towit: “A fifteen foot concrete road beginning at the Maryland line just west of Hutton and extending to and through the town of Terra Alta and thence to and through the town of Albright to the Pleasant district line; a fourteen foot concrete road beginning at the Union district line on the Aurora pike,” etc. It is contended that the word “concrete” is a part of the description of the road, and not a specification of the material to be used. But none of the roads were concrete roads. The evident intent of the voters was to make them such. In its. order calling the election, the' county court provided that the proceeds derived from the sale of .the bonds-should be used in making permanent improvements on the roads specified in the petition and to the extent therein set forth, ‘ ‘ by the use of concrete and such other materials as aré
After the advertisement for and receipt of such bids, the county court ascertained that the funds so authorized were insufficient -for that purpose. With this information before it, and no doubt moved by a desire to better road conditions in Portland district, the county court entered an order, a. copy of which is exhibited with the bill, which, after reciting the result of the bidding and the inadequacy of the funds as ascertained therefrom, found that the proceeds from the authorized bond issue was sufficient to rebuild and improve such roads by the use of water-bound macadam; that the water-bound macadam method of construction was susceptible of
An attempt is made, which we think is not authorized by the language relied on, to justify the action of the county court in the change of material, by the phrase ‘ ‘ in such manner as is prescribed by law”, contained in the petition and the order of the county court above quoted. This phrase, coupled as it is with a specification of the material approved by .the voters, can not reasonably be construed in justification of the substitution of water-bound macadam in lieu of ‘ ‘ concrete and such other materials as are required to complete the work in the manner prescribed by law”. General terms can not be permitted to operate adversely to definite and well defined terms. It is not permissible to assume or conclude that the phrase so injected into the petition and order was understood to authorize the issuance of bonds for any purpose other than that particularly specified. Such an assumption is not warranted. It is wholly inconsistent with the explicit language referred to.
In addition to the other matters discussed and decided, the appellant complains of the order of the circuit court sustaining the demurrer and dismissing the bill because of alleged insufficiency. The bill avers that the county court “contemplates ’ ’ the use of water-bound macadam in effecting the proposed improvements. “Contemplate” is a word of comprehensive meaning. As defined by the Standard Dictionary, it means “to consider with a view of accomplishing; intend;
For this reason, the decree of the court must be reversed, the demurrer overruled, and the cause remanded. Such will be the order entered here.
Reversed, demurrer overruled and cause remanded.