66 W. Va. 62 | W. Va. | 1909
The City of Charleston complains of a decree of the circuit court of Kanawha county, perpetually enjoining the sheriff of said county from selling certain lots, owned by Nancy J. Hager, to enforce the city’s lien thereon for street paving. The property was certified to the Auditor of the State, as delinquent for non-payment of these assessments, and he certified it to the sheriff of the county for sale as if delinquent for non-payment of ordinary taxes. The sale was enjoined, not merely for irregularity in the sale proceeding, such as defective notice or the like, but also for lack of ri^ht and power in the city to sell the property. The decree declaréis the assessment invalid, illegal and void, cancels and sets it aside as constituting a cloud on the plaintiff’s title, and orders the recordation of a copy of the decree in the clerk’s office of the county court, to operate as a complete discharge and release of the alleged assessment and lien.
The alleged grounds of invalidity in the lien and sale proceedings are, (1) that the ordinance under which the paving was done never became operative or took effect, because it was not published and the evidence of the publication thereof recorded in the manner prescribed by the charter; (2) the contract for the work was not let to the lowest bidder; (3) the assessment was made against three lots as a whole and not against the lots separately, on an apportionment made; (4) the assessment includes apportionment to the plaintiff of the cost of paving street crossings, not authorized by the law; (5) no al-
Section 20 of the charter of the city, passed in 1895, as amended by chapter 36 of the Acts of 1899, provides “that no order, or ordinance imposing, or providing for the imposition of, any assessment, fine or penalty, other than the ordinary annual levy of city taxes, shall * * * go into effect unless and until it shall have been published once a week, for two successive weeks, in some newspaper of general circulation in, and published in, said city, nor unless, and until, the affidavit of the publisher of said paper to such publication be returned to, and spread upon the journal of, the council.” The inhibitory terms of this statute, saying no such ordinance shall go into effect unless, nor until, published and the añida vit of the publisher returned to and spread upon the journal, make these requirements clearly mandatory. 21 A. & E. Eng. Enc. Law 969. If the terms were not prohibitory, .it would be, according to almost uniform authority, only directory, Id.; but, as the legislature has seen fit to use terms generally regarded by the courts as importing intention not to give effect or virtue to an act done in a manner different from that prescribed, we must respect the great weight of judicial opinion and the expression of legislative will as it is interpreted thereby. It is urged that this section was impliedly repealed by the amendment and reenactment of section 28 of the city charter by chapter 152 of the Acts of 1901, since said section 28, as so amended, grants powers and prescribes regulations, concerning the permanent paving of streets, and gives remedies for the collection of the cost thereof, and does not require such publication and recordation of'the evidence thereof. This position is untenable. Chapter 152 of the Acts of 1901 makes no direct reference to said section 20 of the charter. That section relates to the passage of ordinances, imposing special assessments and penalties generally, not merely to those applicable to street improvéments. Section 28, as amended, makes'no provision on that subject. It confers certain powers, without saying how the city shall express its
Whether the ordinance providing for the paving of Virginia Avenue, from Charleston Street to Virginia Street, the portion thereof on which the property in question abuts, was published as the charter requires, and the affidavit of the publication thereof spread upon the journal, must be determined, in part, by oral testimony, as to the facts and circumstances tending to show that the ordinance was published, and an affidavit thereof made and spread upon the journal. That such evidence exists is disclosed by this record in affidavits, exhibited with the answer and formally filed on the hearing, over the objection of the plaintiff. The objection to the filing thereof ought to have been sustained. Herold v. Craig, 59 W. Va. 353. These affidavits cannot be admitted to prove the averments of the answer, and the facts stated in them cannot be considered without competent evidence thereof. However, as the affidavits are in the record, the record discloses the probable, almost certain, 'existence of the evidence stated in them, and the power of the defendant tq procure and put it into the record in proper form.; The facts which this evidence would disclose are: The ordinance was published in the Charleston Daily Mail on the 34th day of July, 1903, and on the first day of August, 1903. It was thé custom of the publisher of that paper to make affidavit to all city publications and deliver them to the recorder or some other officer. It was also the custom of the recorder not to actually transcribe the ordinance and affidavit into the journal, but to paste them therein. While the journal does not contain the affidavit of the publication of the ordinance in question, so pasted therein, it does contain other similar affidavits. It also bears evidence of the loss or abstraction of papers that had been pasted in it. The publication as to Virginia Avenue was near the same time as the
Ordinarily, a failure on the part of a party to a suit to take and introduce his evidence before the.cause is submitted, precludes him from having relief. Generally, in such cases, the' appellate court refuses to disturb the decree, if it is against him, and, on reversing it, if it is for him, refuses to remand the cause and renders a final decree against him. «Q: the bill or cross-bill is sufficient, and the proof fails, the general rule is not to remand the cause. But there are exceptions to this rule. When the record discloses the highly probable, or almost certain, existence of the evidence needed to enable the party to prevail, the cause will be remanded. Love v. Tinsley, 32 W. Va. 25. In that case the bill purported to exhibit a copy of the judgment which could not be found in the record. Other papers, relating to the judgment and presupposing its existence, were disclosed. Hence the court could see that the ¡omission was a mere oversight. In Sitlingtons v. Brown, 7 Leigh 271, the cause was remanded to enable the plaintiff to prove a certain fact necessary to his relief which appeared to the court to have been inadvertently omitted. In Miller v. Argyle’s Exrs., 5 Leigh 460, an injunction was sued out of the county court, to prevent the sale of land under a trust deed for purchase money, on the ground that the title to part of the land had failed and was defective as to the balance. As to the first allegation the answer-was silent, and, as to the second, it set up a confession and avoidance. The county court granted the relief prayed for, notwithstanding there was no proof of the undenied allegation. The superior court of chancery reversed the decree and dismissed the bill. On an appeal from this decree, the Court of Appeals reversed the decree of the superior court in so far as it dismissed the bill, and, pronouncing the decree which the superior court ought to have rendered, remanded the cause for further proceedings, allowing the plaintiff to supply the necessary proof. To the'same general effect, see Cropper v. Barton’s, 5 Leigh 428; Duff v. Duff, 3 Leigh 323. In Hilton v. Hilton, 1 Grat. 161, the matter in controversy was the probate of a will. The contestants admitted, upon the record, the due
In a brief for appellant, it is urged that, as the affidavits, setting up these facts, are made parts of the answer, and there is no special replication, denying them, they must be taken as true. We do not regard them as constituting new matter. They are set up merely in denial of the allegation of the bill. The prayer for affirmative relief is predicated upon the matter substantially set forth in full by the bill. The answer introduces nothing new, except facts, tending to negative charges made in the bill.
As, in our opinion, the evidence shown by these affidavits to be in existence is sufficient, taken alone, to prove the publication and recordation of the ordinance, the cause ought to be remanded to let it in, unless the .record discloses something else fatal to the appellant. It becomes necessary, therefore, to examine and pass upon the other charges, set up in the bill against the validity of the assessments. It is argued, in the brief, that the contract was entered into before the ordinance took effect, assuming that publication was made and the evidence thereof recorded in conformity with the requirement of the charter, but this charge is not made by the bill, and the contract, exhibited therewith, bears date September 4, 1902, some days after the second publication of the ordinance, as indicated by the affidavit. As the exhibit is a part of the bill, this date, subsequent to the last publication of the ordinance, is an allegation or admission of the bill, and there is no allega
The bill alleges the contract, as to this avenue, was let without any previous advertisement for bids. An affidavit in the record say's “the contract was made after due advertisement for bids.” As it thus seems probable the fact can be proven, what has been said on this subject suffices. But, if it should not be established, the 'long delay of the plaintiff in attacking the assessment may bar her The work done was beneficial to her propertjR Irregularities' which might have availed her, if set up while the work was in progress, may now be worthless as ground of relief, but we leave this open, since, the question may not arise.
The contention that the contract was not let to the lowest bidder, assuming that bids were advertised for, rests upon the fact that only one bid was made under the advertisement. This' was made by parties who already had a large amount of paving under contract with the city and their machinery and men on the ground. The circumstances gave them an important advantage over others not so situated, and nobody competed with them. There is obviously nothing in the suggestion that
The charter does not require the assessment to be made against each lot separately. Section 38, before the amendment made by the Act of 1901 seems to have contemplated assessment by lots, though it was not explicit in that respect; but as found in the Act of 1901, it makes no reference to the subject. It says the council shall, on the completion of the paving of a street or portion thereof, “cause the several frontages abutting thereon to be measured, and shall assess upon each and every land owner so abutting, the proper amount to be determined as provided in the foregoing plan.” The plan referred to says “Payment is to be made by any land owner in such proportion of two thirds of the cost as the frontage in feet of his or her land, so abutting, bears to the total frontage of all land so abutting upon suéh street or alley or portion thereof, so paved as aforesaid.” If the statute had provided for separate lot assessments, it might be re-, garded as a material and important requirement, but we do not feel at liberty to read it into it. None of the terms used necessarily or fairly imply it. These lots are apparently adjacent, .since they bear the consecutive numbers 1, 2 and 3, and are in the same block. In a practical sense, they may be regarded as one tract or parcel, and a fair and reasonable interpretation of the statute makes them liable to assessment as a whole.
The portion of the street, included in the improvement and estimated apportionment of cost, has four cross-street inter
The ordinance, granting the street railway company, whose tracks are located in the street, its franchise, required it to pave the street between its rails and for one foot outside of the track on each side thereof. A contention against the validity of the assessment is that the amount paid by the railway company should have been deducted from the entire cost and only the residue apportioned between the city, on the one side, and the property owners on the other. The statute is silent as to this matter. Only the city ordinance deals with it. Having the power to grant the franchise to the railway company, it imposed this burden as a condition. Whatever power and discretion the council has, respecting the imposition of the cost of paving, as an incident to the granting of the franchise, is full and complete, not restrained or regulated by the statute. No higher statutory or organic law declares the advantages so obtained shall be allowed to the abutting property owners, rather than to all the tax-payers of the city. It does not seem to be governed by common law or equity principles, further than the ordinary rules of construction are applicable in seeking the legislative intent. The legislature has done no more than vest the discretionary power in the council, and the council has seen fit to distribute this pecuniary advantage to all the people of the city. We think this objection is clearly untenable.
The suggestion that no return of delinquency for improvement assessments can be certified to the State Auditor and by him inserted in his list of delinquent lands, certified to the sheriff for sale, unless the party against whom the assessment stands is delinquent as to other taxes on the property, or unless the return is made and certified with delinquencies as to other taxes, is founded on the phrase, “to be included with the state, county and district taxes in his list of delinquent land sent down to the sheriff of said county for sale/’ predicated on “liens for city taxes and attendant penalties as well as for improvement assessments.” The argument is that this mode of enforcing payment of special assessments can be resorted to only as an incident to the sale of land for delinquency as to ordinary taxes. There is another clause in section 28 which says such assess
Complaint is also made because the penalty of ten per cent, inflicted for non-payment of the assessment, within the time stipulated, is included in the amount certified. The statute contemplates this. Section 28 says the “assessment with the penalty aforesaid added thereto” shall be treated and considered, and payment thereof enforced, in all respects as herein provided for the collection of taxes due the city, and that “there shall be a lien therefor, the same as for such other taxes, which lien may be enforced the same as provided for other taxes.” When the statute does not expressly give a lien for the penalty, or leave it in doubt as to whether it shall be considered part of the cost of the improvement, the decisions are conflicting as to whether'it is collectible. 25 A. & E. Enc. Law 1197, and authorities there cited. But certainly not, if the statute in plain terms gives it.
Though the return of delinquency may be fatally defective as alleged in the bill, (1) for insufficiency of the affidavit appended to the list, and (2) for having been made at a different time from the return of delinquency as to ordinary taxes,
If the assessment is valid, there is a further error in the failure of the court below to decree a sale of the property for the satisfaction of the lien, on the prayer for affirmative relief, contained in the answer of the city, since the statute allows enforcement thereof by suit in equity as well as by sale for delinquency. The charter provides as follows: “There shall be a lien upon all real estate within said city for the city taxes assessed thereon, including such penalties added thereto for non-payment thereof as are prescribed by this chapter,, from the commencement of the year in which they are assessed. Said liens may be enforced by appropriate suit in any court of record in Kanawha county, provided such suit be instituted within five years from the time when said liens attach as herein provided. But the foregoing limitation' does not apply to or affect the time within which the
The amount of the assessment, without interest, is $288.03, and, with the penalty added, $316.83. The terms of the charter, respecting interest, though .somewhat confused, seem to import that none is to be charged until after the assessments have been placed in the hands of the city treasurer for collection. That occurred, in this instance, on the 7th day of July, 1906. • Agreeably to these conclusions and findings, a decree should be pronounced in favor of the city for the sum of $316183, with interest on $288.03, part thereof, from the 7th day of July, 1906, provided the assessment shall be found to be valid.
Therefore, the decree of the circuit court will be reversed and the cause remanded for further proceedings.
Reversed arid Remanded.
Judge RobiNSON and I think that Mrs. Hager should pay two thirds of the cost of paving half the street, deducting from it that part of the half street paved by the car company. The city ordinance requires the city to pay one third the cost. The decision relieves it of that part of the paving done by the ear company. That part cost the city nothing. It profits by it, Mrs. Hager does not. The city and Mrs. Hager should pay for the balance after such deduction, the city one third that balance, Mrs. Hager two thirds. By the decision the city does not pay a third of the cost though the ordinance says it shall. Mrs. Hager pays more than two thirds of the actual cost to the city. The ordinance was intended to make the lot owner reimburse the city two thirds of its actual expenditure. Authority for this position exists and was before the Court. I myself do not regard