82 W. Va. 401 | W. Va. | 1918
This is a suit to enjoin the collection of certain paving certificates issued by the defendant City of Huntington against a lot owned by the plaintiff in that city, covering the cost of paving in front of said lot, and to have the lien of said assessment removed and cancelled as^ a cloud upon his title, upon the ground that the paving did not benefit the lot, and that the contract for the paving was let by the city to its co-defendant herein, the Stender Construction Company, for a sum largely in excess of the reasonable cost of the work. The court below sustained a demurrer to the bill, but without dismissing the same certifies to this Court the question of the sufficiency thereof.
Plaintiff alleges that he is the owner of a lot abutting on what is known as West Sixteenth Street between Virginia •and Washington Avenues; that on the 28th day of August, 1916, the said City of Huntington entered into a contract with the defendant Stender Construction Company whereby it let to the said company the work of paving said West Sixteenth Street, between Virginia and Washington Avenues, and providing for the assessment of the cost of said paving against the" owners of the real estate abutting on the street so improved, and for the issuance of certificates by the city to the said contractor evidencing the assessment against each of said properties. The plaintiff says that at the time of the letting of this contract he appeared before the board of commis•sioners of the City of Huntington, and protested against the paving of this street, and also against the letting of the ‘contract to the particular contractor. His protest against the work being done at all was based upon the declaration that it is not a benefit to the abutting properties, but .was made for the convenience of a manufacturing corporation known as the G-lass Brick Company. His objection to the making of the contract was and is based upon the allegation •contained in his bill, and which he says he made known to the board of commissioners at the time: that the bid of the contractor, which he says was the lowest bid offered, was excessively high; that the contractor in making up his bid included therein an estimate of what it would actually cost him
Can the action of the commissioners in determining to improve this street by paving the same be reviewed by the court! It is not alleged that the commissioners were actuated by any fraudulent or corrupt motives in determining that this pavement should be laid, but it is simply alleged that it does not benefit the abutting property owners, but does benefit and was for the convenience of the Glass Brick Company, whose plant is at one end of the street. The authority of the commissioners of the City of Huntington, under its charter, to improve streets by paving the same is not questioned, arid it seems that it is ample for the purpose. It is uniformly held, so far as we have been able to ascertain, that where the charter of a municipal corporation devolves upon its council or board of commissioners, as in this ease, the authority to pave streets, this is a delegation of legislative power, and such authorities have the right to determine what streets shall be improved, and in what manner such improvement shall be made. The exercise of this power is not reviewable by the courts. The right to make the assessment against the adjoining property owners upon the basis that it was made in this ease is likewise one conferred by the legislature, and while the plaintiff may be of the opinion that it does not improve his property, the determination of this question involves the exercise of legislative power which is not subject to judicial review, unless it be upon a showing that it was fraudulently or corruptly exercised. In Hamilton on Special Assessments, at § 440, this doctrine is announced: ‘ ‘ The necessity for making local improvements is a matter for the exclusive determination of the council, when the statute
Do the allegations of the bill that the city commissioners accepted a bid in excess of what was a fair compensation for the work under the circumstances here entitle the plaintiff to relief? He alleges that he protested to the city commissioners that the bid was grossly excessive; that it was made up of an estimate of the _cost o.f the work and reasonable profit to the contractor, and a discount which the contractor added as being necessary in order to obtain money upon the certificates. This protest of his made before the city commissioners was disregarded, and he says he declared at that time that he would contest the assessment. He says that he immediately brought suit, but, disregarding that suit, the city went on and did the work. What.became of that suit does not appear. It could not have been this suit, for the reason that his bill in this case avers that the work has been done and the certificates issued. Such a suit was the proper method for him to employ in order to obtain relief, and if that suit was decided against him, of course, the judgment or decree would be res adjudicata, and would settle the question. However that may be, we are not concerned with that ease, but only with this suit brought after the work was done, and after the assessment was made. The plaintiff shows by his bill that he was fully cognizant of all the facts upon which he now relies to defeat this assessment at the time the -contract was entered into between the city and the contractor, and that he urged them before the commissioners. If there was merit in his contention that the awarding of this contract, at the price atxwhieh it was awarded, was a violation of the authority conferred upon the commissioners, should he have contented himself with making the protest
Whether the matter set up by the plaintiff in his bill would be cause for vacating the contract and holding it invalid, had he taken advantage of it at the proper time, we need not and do not say in this suit. It may be said, however, that if it is true that the bids were computed as alleged in this case, and an allowance added to them by the contractor for the discount of the paving certificates, and the city commissioners knew this fact, it would, to say the least, be a very good reason for rejecting all of the bids. It should convince them that the bids were excessive, and where, as in the case of the City of Huntington, it can do the work itself without letting it to contract, it might proceed to do it on its own account, and levy the assessments against the property, or determine not to do the work at all if bidders refuse to do it without making such .excessive charges therefor.
Finding no error in the decree of the circuit court sustaining the demurrer to the bill, we affirm the same and remand the cause.
Affirmed, and cause remanded.