57 W. Va. 9 | W. Va. | 1905
On the 29th day of July, 1903, the common council of the City of Elkins adopted an ordinance, which in part is as follows:
“Be it ordained by the council of the City of Elkins :
“(1) That the expense of all sewers hereafter put in any of the streets or alleys of the city shall be paid for as follows, one-third of the actual cost thereof shall be paid out of the City Treasury and the residue of said cost shall be assessed upon the real estate bounding and abutting upon the street or alley where such sewer is located and built in the proportion óf the one-third of such cost upon property abutting on each side • of the street or alley where such sewer is located- and the said expense so taxed upon said real property shall be collected from the owner of said property as other taxes assessed thereon and collected.
After the adoption of the ordinance the city proceeded to construct sewers in a number of streets and alleys of the city and paid the cost thereof out of the city treasury; and upon report of its engineer of the cost of the work, the common council assessed against the owners of the real estate abutting the streets and alleys so sewered according to said ordinance, two-thirds of the ■ cost of the construction of such sewers, proportioned according to the number of feet the real estate of each owner abutted oh such streets and alleys ; and the City of Elkins by its collector was, at the time of the institution of this suit, proceeding to enforce the collection of such assessment against the plaintiffs and those for whom they sue. Plaintiff James Cain and M. H. Hervey, suing on behalf of themselves and on behalf of the property owners of said city subject to such assessment, filed their bill in the circuit court of Randolph county, setting up these facts and making other proper allegations, against the city of Elkins, and its mayor, members of its common council, and its collector and treasurer, to enjoin and restrain them from collecting from the plaintiffs and those for whom they sue the said assessment or any portion of it-and from selling the property levied on by the • collector thereunder, and to declare such assessment void. On the 15th day of February, 1904, the judge of the circuit court of Randolph county, in vacation, upon presentation of said bill, awarded to the plaintiffs a temporary injunction substantially as prayed for therein. Depositions were taken by the plaintiffs in support of the bill. ■ At the May term of said circuit court, 1904, the defendant City of Elkins filed its demurrer and answer. The other defendants did not answer. The answer of the City of Elkins admitted substantially the allegations of the bill in relation to the levy and attempted collection of the special assessment complained of, but claimed.that the City of Elkins and its officers had the right and authority to ■ so levy and collect said assessment under its charter act. After the filing
The first question raised by the record, which we desire to notice and which is vital to this case, is: Had the City of Elkins under its charter act, the authority to levy the special tax or assessment complained of in the plaintiffs’ bill ? This question goes to the very foundation of the case. If the City of Elkins had no such authority, then it has no defense to this suit appearing in the record, and all its acts in adopting the ordinance in pursuance, of such supposed authority and in attempting to collect such special tax or assessment, are without authority. The authority claimed by the City .of Elkins to levy and collect such special tax or assessment can only be exercised under the authority of the legislature. It is in its nature an extraordinary power, sometimes delegated by legislative authority to municipal corporations. Under such authority, where.it exists, the individual, in addition to the payment of general taxes for the support of municipal government, is required to pay a special or local tax or assessment not levied generally upon all taxable property of the municipality.
The charter act under which the authority is claimed, in this case is chapter 151 of the Acts of the Legislature of 1901. Under the powers conferred by this act the special tax or assessment' complained of must be justified, if at all. Section 28 of this act is relied upon to' show the existence of the authority to levy this special tax or assessment. ' This section is voluminous, but for the purposes of this case we. deem it necessary to refer only to such parts of it as aye considered material in determining the authority of the City of Elkins to levy and collect the special tax complained of. The parts considered material are as follows: “The council of said city shall have power to lay off, vacate, close, open, alter, gradé, and keep in good repair the roads, streets,
In considering this question of authority we are guided by ■well settled rules of construction. From the many decisions and authorities on this subject, we deduce the following as applicable to this case: Municipal corporations can exercise only such powers as by their charters are granted in terms expressed, or by necessary or fair implication, regard being-had to the purpose^ of the grant. The authority is not inherent in any public corporation to levy assessments upon property. Such authority can not be inferred from the general welfare clause of the charter, or from similar general provisions, or from the general words-of an act, unless the ■words employed clearly grant the authority. The authority to levy assessments will not be extended by construction, for as against the corporation the construction is strict, and nothing in its favor will be inferred, except such matters as are clearly implied from the express words of the act. If any reasonable doubt arises as to the existence of the authority, it will be resolved against the corporation assuming it. The rule of strict construction is applied rigidly when the right and authority to exercise an extraordinary power is assumed by the corporation. Applying these rules to the charter act of the City of Elkins, and the parts above referred to, we do not think that the authority to. levy the
We tío not deem it necessary, from the view we take of this case, to decide the question, whether or not such’tax or assessment, 'if the same had been levied' pursuánt to authority given by the legislature, could legally lie collected from property other tlian 'the real estate abutting the streets and '-alleys' in 'which sewers wore placed.
The only other question presented by the record is whether of not a court of -equity haá jurisdiction in' this 'case. "We think'the jurisdiction of a court of equity is clearly established under the circumstances of this case, and that it lies in all cases where a municipal corporation acts ul'tm rireii in the levying' of a tax or assessment and attempts to collect it. This question was thoroughly discussed and considered by Judge Snyder -in' delivering the opinion of the Court in Christie v. Madreu, 23 W. Va. 677; and was also discussed and considered 'in the casé óf Crim v. Town of Philippi 38 W. Va. 122; and in the case of Tygart's Valley Bank v. Town of Philippi <4 <(/., 38 W. Va. 219; and in other cases before tliis Court. We think these cases uphold the jurisdiction where the act of levying the tax or assessment is '-ultra viren -and its collection is attempted, upon proper bill filed by the party of parties subject to su'ch tax or assessment, to enjoin its collection.
Meveruríl.