69 W. Va. 255 | W. Va. | 1911
Under power given it by Acts of 1905, chapter 6, amending section 28 of its charter act, the City- of Elkins caused certain of its streets to be paved, and assessed two thirds of the cost upon owners of lots fronting on those streets. Such taxes or
This case is an important one in principle. It involves the right of municipal corporations to improve its streets by paving and otherwise and charge the cost thereof to abutting lot owners. This is an important function of cities and towns es-sentia], not merely to their beautification, but also to convenience in the use of the streets, and the public health. In these days of large population and large business the power is indispensable. That power has been frequently sustained as constitutional and valid. City of Parkersburg v. Taverner, 42 W. Va. 486; Hager v. Melton, 66 Id. 62; Chadwick v. Kelley, 187 U. S. 540. However, this power is not contested in this case. This case is also important in the respect that it is the first case in this state directly involving the power of a city to fix the amount of such assessment by the front foot, and also whether there must be notice at some stage of the proceeding to the lot owner. Counsel tells us that the assessments involved in this case are void as depriving persons of property without due process of law, and consequently violative of the 5th and 14th Amendments of the Constitution of the United States and of the State Constitution in their prohibition against depriving persons of property without due process of law. I may remark that the 5th Amendment has nothing to do with this case, as that is only a restraint upon the federal and not state govern
The plaintiffs strongly urge that these assessments are void and contrary to such constitutional law, because the assessments were not made according to the benefits conferred upon each lot by the paving improvement, but by the frontage of the lots on the streets, that is, by the front foot. At one time it was a great question whether the assessment could be so made. Some state courts held that it could not be, but that the assessment must be measured by the benefits conferred on each lot. Violett v. Alexandria, 92 Va. 961. Such was the holding, as commonly construed, of Norwood v. Baker, 172 U. S. 269. But in French v. Barber Asphalt Paving Co., 181 U. S. 324, that construction of the Norwood case was repudiated. The common construction was that the Norwood case condemned such assessment; but if it did, it has been overruled or ignored by the Supreme Court. The well considered case of French v. Barber Co., just cited, holds as follows: “The apportionment of the entire cost of a street pavement upon the abutting lots according to their frontage, without any preliminary hearing as to the benefits, may be authorized by the legislature, and this will not constitute a taking of property without due process of law.” This case has been followed in Tonawanda v. Lyon, 181 U. S. 389; Cass Farm Co. v. Detroit, Id. 395; Webster v. Fargo, Id. 394; Chadwick v. Kelley, 187 U. S. 540; Davis v. City of Lynchburg, 84 Va. 861. The Supreme Court has said, “A system of delusive exactness should not be extracted from the very general language of the Fourteenth Amendment in order to destroy methods of taxation which were well known when the Amendment was adopted, and which no one then supposed would be disturbed.” L. & N. Ry. Co. v. Barber Asphalt Paving Co., 197 U. S. 430. Thus we hold the assessment by the front foot is not an unconstitutional mode of assessment. What fairer mode of assessment?
This assessment is assaulted also on the ground that no notice was given the lot owners of the assessment. It is contended that where any proceeding deprivative of property takes place, the first requirement is that there shall be notice, and that where there is none, is not due process of law, and the state and federal constitutions are violated. That depends. That depends
As this charter act contains no requirement of notice it is
As said above this injunction went to restrain the prosecution of regular suits in the circuit court to enforce these assessments. Of course, the injunction would be untenable in that feature even if the assessment were unconstitutional, because the circuit court would have jurisdiction to pass on the question, and the party would have his day in court and could not say that he had no hearing and that the proceeding was without due process. The plaintiffs could not thus deprive a court of general jurisdiction the benefit of that jurisdiction.
Our conclusion, is to affirm the decree.
Affirmed.