93 W. Va. 388 | W. Va. | 1923
The question certified is: whether the city of Ronceverte has authority and power under its charter to require the owner of a lot which abuts on a street to make a fill with retaining wall to hold the same, on which to lay a sidewalk; and upon his failure to do so if the city may make such fill and build such retaining wall and assess the costs thereof as a lien against the lot.
On October 26, 1921, the city of Ronceverte served a notice on the complainant, Mrs. ij. W. Fry, requiring her to construct a permanent cement sidewalk on the south side of Greenbrier street avenue upon which her lot abuts 50 feet, the width of the sidewalk to be 5 feet and laid upon a grade to be established under the direction of the street commissioner ; and upon her failure so to do the city would proceed to construct said. sidewalk and that the full amount of the total cost of grading and filling, surfacing and completing the said sidewalk to be charged to her and reported as a tax lien against the lot, with interest thereon after the expiration of 30 days. Mrs. Fry failed to give notice that she would construct such fill and wall and lay the sidewalk thereon, and on March 6, 1922, the city ordered the improvement to be made and the sidewalk laid, advertised for bids therefor and awarded the contract to a bidder, who proceeded to make the fill and construct the walk. On June 14, 1922, Mrs. Fry presented her bill for injunction to the circuit court to enjoin the city from proceeding further in the work, which injunction was refused. Upon application to a judge of this court the injunction was granted, and at the September, 1922,
Greenbrier street avénue was formerly a road which wound around a hill where plaintiff’s lot is located. Her lot fronts 50 feet on Main street and runs back with equal width up the hill to Greenbrier street avenue. Her dwelling on the lot faces Main street. In order to make the grade on which to lay the sidewalk as required by the city it would necessitate a retaining wall from 6 to 10 feet high for 50 feet along * the rear of her lot, and require a considerable'embankment between the retaining wall and the street. It appears that other abutting lot owners similarly situated have acceded to the demand of the municipal authorities and have erected the necessary retaining walls and made fills on which the sidewalk along their various properties is laid. The estimated total expense which will be required of complainant is $376.
The solution of the question propounded depends upon a construction of the authority given .to the city’in its charter, for such purposes. The charter is found in chapter 5 of the Acts of 1919, “Municipal Charters.” By the first section the city is given the power “to assess, levy and collect taxes for general and special purposes on all the subjects or objects within its boundaries, which the city may lawfully tax, * * * * may pave, re-pave, .curb, re-curb, grade, regrade, sewer, re-sewer or otherwise permanently improve any street, alley or roadway within the city limits and assess the cost thereof as hereinafter provided for * * * * and shall have all powers that now are or hereafter may be granted • to municipalities by the constitution or laws of West Virginia, or that are herein by implication' conferred, or are-necessary to or consistent with the purposes of this act; and all such powers, whether expressed or implied, shall be exercised and. enforced in the manner prescribed by this act, or when not prescribed herein, in such manner as shall be p'ro-
The provisions relating to street paving are found in section 42 by which the commissioners can provide for paving with bricks, cobblestones or other suitable material any street or alley between the curbstones, upon the lowest and best terms obtainable. Under this section the whole cost of paving from curb to curb of any such street or alley is assessed'to the owners of the land fronting upon the same, that is to say, the property owners on each side shall be assessed one-third each and the city one-third of the cost, to each property owner a sum proportionate to the distance or extent in feet owned by him, one-third to be paid to the city within 30 days after the completion of the work, and the remainder in installments. The paving of intersections of the streets and alleys is to be paid by the city. Then follows provisions for fixing the assessment against each property owner and for notice to him and for recordation of the assess
It is npon these provisions of the charter that the city predicates its right to require the lot owners to erect retaining walls and make embankments on their property npon which to lay sidewalks nnder the provisions of section 41 above set out. It is pointed ont that under section 41 the commissioners have power to determine the material to be used in building sidewalks, to determine where such sidewalks shall be constructed, and the width and grade thereof, and shall fix upon the material with which the same shall be built, and require the owners of the lots abutting on such sidewalks to pave the same with such material and on suck, grade and of such width as may have been determined, at the expense of the owners. Special stress is laid upon the words “determine,” “construct,” “shall be built,” and “on such grade,” and it is claimed that these words so used, give the city power and authority to require the lot owners to build retaining walls, make fills and then construct or lay the sidewalks thereon. It is argued that under the plain meaning of this language all the city is required to do is to establish the grade, indicate the material and width of the sidewalks, and then require the lot owners, at their own expense, to do all things necessary for the building of the sidewalks upon the grade indicated. The argument is that -the city is only required to fix the grade and then it is said, “in all common sense and reason how can the abutting lot owner pave the sidewalk on a prescribed grade, as he is by the plain and unambiguous language of the act required to do, unless the grade is first constructed, the ground first reduced to a level or to an evenly progressive ascent, and if the abutting lot owner is not required to grade or so prepare the ground for the paving admittedly required to be done by him or at his expense, then pray, who is required to grade or so prepare the ground to be paved, for a sidewalk?” We cannot agree with this argument or to this interpretation of the statute. The language used in section 41 will not justify it. The express power to pave streets and assess the cost thereof as “hereinafter provided” contained in sec. 1, has reference to street paving as contained in sec. 42 above set out. The implied
Plaintiff has charged in her bill that to give the construction of the statute claimed by the city, and thereunder require her to build the retaining wall and make the* fill at large expense, would render that part of the city’s charter unconstitutional and void as an unequal tax and as confiscatory. Prom what we have said it will not be necessary to discuss this point. A court) will never pass upon the constitutionality- of a statute, unless it is necessary to determination of the case. Edgell v. Conaway, 24 W. Va. 747; Shephard v. Wheeling, 30 W. Va. 479; Rutter v. Sullivan, 25 W. Va. 427.
We affirm the ruling of the lower court, and so answer the question certified.
Affirmed.