122 S.E. 449 | W. Va. | 1924
Having sustained in part and overruled in part a demurrer to the bill and each paragraph thereof, the court on joint application and its own motion certified its ruling to this court for review.
The bill is by abutting property owners on Eighth street and Third avenue, and as citizens and taxpayers of the city of Huntington against the city as a municipal corporation, and Harrison and Dean with whom the city has contracted for permanently improving the named streets in certain portions of the city by paving, and seeks to enjoin the city and its contractors from performing the contract, alleging that the ordinances under which it was made and the contract in pursuance thereof are illegal, null and void.
The city proceeded under its charter powers to repave the designated streets, and perhaps portions of other streets, with brick laid on a concrete base, by contracting therefor, after competitive bids, with its co-defendants, under the method authorized in the charter of issuing certificates of assessment for the entire improvement upon the abutting adjacent or contiguous lots especially benefited, in the propositions in which they are especially benefited by the improvement. Sec. 65 (c) chap.
The court held that plaintiffs could maintain the bill as abutting property owners and also as residents and taxpayers on behalf of all other residents and taxpayers who desired to join as plaintiffs under the theory that all other taxpayers not abutting were pecuniarly interested. The bill charges that the city has no right to assess the Marshall College property for that portion of the paving along its lot, which will amount to about $16,000, and that the city will likely be liable for this amount out of its general revenues, if not paid by the state, and that the city now has no available funds out of which that contingent debt can be paid.
The charter, section 63, provides that if the assessment method be adopted for making the improvement, "the city in negotiating and selling such certificates shall not be held as guarantor or in any way liable for the payment thereof, except upon direct action of the board of commissioners as expressed by resolution of record." There has been no expression of record that the city will guarantee or be liable for the paving along the college site, and until that be done we do not see how the general taxpayers will be affected as such. The form of paving assessment certificate is given in the charter and adopted by the ordinance, and in the form it is certified that all acts, conditions and things required to be done precedent to the letting of the contract, equalizing and making of the assessment and issuance of the certificates, have been done as required by the charter and the constitution and laws of the state. Counsel for plaintiff argues that the college property can not be made liable to the payment *129
of such a certificate issued against its lot, and eventually the city will be compelled to pay it, especially if the certificate should go into the hands of an innocent purchaser for value. The law under which these certificates are issued is as much a part thereof as written therein, and the contractor as well as any purchaser is charged with notice that the city does not guarantee them and is in no way liable. The contractor takes them at his own risk. The certificates are not negotiable, they are not promises to pay, and any holder would be in no higher right than the contractor. It is quite generally held that the municipality is not liable for payment of void or unenforceable certificates, unless the contract makes it liable. McQuillan Munic. Corp. Vol. 8, p. 774, citing, among others, the cases of Enid v. Warner-Quinlan Asphalt Co.,
Paragraph Three of the bill charges that the streets proposed to be paved were formerly paved in 1891 to 1894, and that two-thirds of the cost of the improvement was assessed to and paid by the then abutting owners; and Paragraph Five charges that at the time of the enactment of the ordinance complained of, the pavement ordered to be relaid was in good serviceable condition and repair and that it was the duty of the city to keep and maintain the same in good repair out of the general revenues of the city and not at the cost of the abutting property owners. The demurrer to these paragraphs was overruled. Standing by themselves they state a fact and *130
a duty which may be readily accepted. It is the duty of the city to keep its streets in repair out of the general revenues when once opened and improved for public use. But the proposition at issue is not one of repair but of permanent improvement; and these paragraphs considered in connection with other parts of the bill bear upon the crucial question of the right and power of the city to repave its streets at the expense of the abutting land owners, under the assessment plan, after having originally paved the streets at the partial expense of the abutting property owners. It is insisted by plaintiff that the city has no such authority. It is pointed out that the Pennsylvania courts hold that assessments can not be made against abutting property for repaving. Hammet v.Philadelphia, 65 Penn. St. 146, 3 Am. Repts. 615; Harrisburg v.Segelbaum, 151 Penn. St. 172; 20 L.R.A. 834. It is urged that this rule should be adopted in this state. While it is admitted that the general rule is otherwise, it is contended that reason and logic support the Pennsylvania holding. Counsel for defendant in argument say the Pennsylvania rule is contrary to that adopted in every other state and by the Federal courts including the Supreme Court of the United States. We find the vast weight of authority supports the proposition that a municipality, after it has once paved a street, may again repave it and charge the cost to abutting property owners. 25 R. C. L. 103; 1 Page and Jones Taxation by Assessment, secs. 379, 389; Hamilton Law Special Assessments, sec. 249; Smith v.Washington, 20 How. (U.S.) 135. A citation to numerous cases will be found in section 381 of 1 Page and Jones above cited. It would be useless to repeat the reasons for the rule stated in these cases. The inquiring mind is directed to them. Local assessment for improvements of that character is a function of the legislature, and these cases in substance hold that there is no reason for holding that the power of the state is exhausted after it has once authorized a local assessment for such an improvement; that no implied contract exists between the property owners and the municipality or the state that the improvement when once worn out shall be replaced out of the general revenues. If the legislature has authorized local assessments for repaving, *131
then the municipality has that right. Such is the substance of these holdings and the reasons given are forceful. But whether we follow the Pennsylvania doctrine or that announced by the majority of the decisions (the latter, we think, is the proper doctrine), the legislature has accorded to the city in its charter the power to repave its streets at the cost of the abutting land owners and those contiguous thereto whose property would be especially benefited. It is well settled in this state that the legislature can confer power upon municipalities to make special assessments for improvement purposes under the principle that private property will be benefited by the public improvement. Heavner v. City of Elkins,
The charter gives the commissioners the power to determine in the first place whether any particular street should be improved. This is legislative in its character. It is presumed that the commissioners would properly exercise the functions of their office and would not arbitrarily, oppressively or fraudulently order a street to be improved which did not need it, in order to assess the cost upon its citizens. If it should do so courts of equity in a proper place would prevent the exercise of such function induced by fraud, spite or other ulterior design. There is no charge of this character in the bill. The charge is that the streets proposed to be improved were in good and serviceable condition at the time of the ordinance complained of. The judgment of the abutting owners in that regard is set up against the judgment of the commissioners. Moreover, the bill shows that the first pavement was made between the years 1891 and 1894. The first paving would necessarily be much worn in twenty-nine years of use. The bill also says that plaintiffs were misled about the character of the improvement to be made by the declarations and press interviews given by two of the commissioners after the ordinance of August 28th was passed and published. Relying upon the declarations of these two members of the board of commissioners to the effect that the streets would beresurfaced *133
they did not file the protest authorized by the statute. It is clear that the streets were out of repair, and plaintiffs were fully aware of that fact, and aware that steps were being taken for the permanent improvement thereof. In order for the courts to interfere with a municipality in its street improvements on the ground that its action is arbitrary, fraudulent, capricious and unwarranted, the bill should show facts and clearly allege abuse of discretion as to these delegated powers. Moreover, if the streets were not out of repair, and in good serviceable condition sufficent for the traffic passing over them, and the action of the commissioners in ordering repavement was capricious, arbitrary and unwarranted, the legislature has provided a plain, simple and easy method by which the land owners could be protected without the intervention of the courts; namely, a protest in writing filed within the statutory period. In some jurisdictions it has been held that if the improvement is one which the council has the power to make, the question of the necessity for it is one to be determined by the municipal authorities and that the courts can not interfere; and assessments levied for new improvements have been, under this theory, held to be valid. City of Kokomo v. Mahan,
The bill charges that the cost of the proposed improvement is in excess of the special benefits which will be derived therefrom to the abutting land owners, and is, therefore, confiscatory and should be enjoined. It is stated that the contract is let at $4.49 per square yard, and that other pavements in the city of the same construction have been let at $3.79 per square yard, and it is charged upon information and belief that the awarding of the contract for that price was unreasonable, excessive and capricious, and if carried into effect would *134
amount to a fraud against the plaintiffs. It appears that the contract was let as the result of competitive bids, openly and fairly conducted as required by the charter, and that Harrison Dean, the contractors, were considered and accepted as the lowest responsible bidders. There is no allegation of fraud in the letting of the contract nor is there an allegation that the work on these particular streets for this improvement can be done at a less price. The fact that other contracts have been let at a lower price for similar work in other parts of the city would not be controlling. Prices of labor and materials fluctuate. In paragraph 13 of the bill it is stated that the cost of the proposed improvement at the price per square yard against a thirty foot lot will be anywhere from $450 to $600, and that no special or peculiar benefits will accrue to the abutting owners, or at least the assessments will be greatly in excess of the special and peculiar benefits accruing to such property; and under paragraph 14 it is charged that the cost of the improvements upon the abutting property would amount to a confiscation thereof without just compensation and without due process of law. We think these statements and conclusions are not sufficient to show that the cost of the paving will exceed the special or peculiar benefits derived therefrom to the property owners. The values of the properties abutting on these streets is nowhere alleged nor does it appear whether the streets are in a business, residence or sparsely built up section. There is nothing to show what the increased value of the property would be after the new pavement has been laid; whether it would increase the values little or much. There are many elements which would enter into an inquiry as to the value of the special benefits which would be derived from the improvements, and a general allegation that such improvements would be confiscatory is not sufficient. Counsel for plaintiff cite the celebrated case of Norwood v. Baker,
Sec. 8b of paragraph 14 of the bill charges in substance that the contract is void, (1) because different from the terms and conditions proposed for competitive bids; (2) the price to be paid is excessive; the terms are different from those authorized by the charter and ordinances; and because the price at which the old brick in the pavement was sold to the contractor was inadequate, and plaintiffs were given no opportunity to reclaim or recover the brick. The forms of bids authorized by the ordinance and prepared by the engineer required the work to begin within fifteen days after acceptance. The contract awarded to the lowest responsible bidders, Harrison Dean, on October 22, 1923, fixed April 1, 1924, as the date of beginning the contract and October 1, *136 1924, as the date of completion. Is this such a substantial variation as would make the contract void? No bidder could have been deceived. The statute does not nor does the ordinance arbitrarily fix the period when the contractor shall begin work after his bid has been accepted. What harm has been done to plaintiffs or the city by deferring the beginning of the work until after the winter months had passed? The details of the contract are necessarily left to the commissioners and if its terms do no violence to the statute or ordinance it should be upheld. Is the price per yard excessive? The answer is contained in the result of the competitive bidding as directed by the statute. In what particular the contract is different from that authorized by the charter and ordinance we fail to perceive, unless it be that certificates of assessments may be issued upon the completion of a part of the work. Section 67 of the charter authorizes that to be done. Every bidder was charged with knowledge that the commissioners had that power. No authority is cited for the proposition that the abutting land owners have any property interest in the brick reclaimed from the old pavement, or any right to dispose of it. We find no stipulation concerning the disposition of the old brick to the contractor, and no mention of the same in the contract. How could the contract be void for that reason? The demurrer to section 8b of the bill should have been sustained.
A charge of invalidity of the ordinance of August 28th is predicated on the ground that it does not set forth the work and improvement to be done, the extent thereof and the manner of paying for it as required by the charter. Reason as well as authority says that the legislative body must first determine the character and extent of the work proposed and as near as may be the amount of the burden which will be imposed. 25 R. C. L. p. 155 (Special Assessments) sec. 69. McCrowell v. Bristol,
Plans and specifications proposed and adopted were on file in the engineer's office. Plaintiffs admit that these plans were there, but say they were misled as to what would be done under them by the declarations and press interviews of two of the commissioners. The point is made that there was no formal adoption of these plans until September 17th. An exhibit with the bill shows they were adopted on the latter date; yet there is no allegation that they were different from those already on file when the ordinance of August 28th was passed. Could plaintiff's have been prejudiced? The point that the manner of paying for the improvement should have been first determined by the initiatory ordinance is not without difficulty. The charter requires the ordinance to set forth the improvement, the extent thereof and the manner of paying for the same; and the ordinance says the entire cost shall be paid by the abutting owners calculated in the manner provided for in section 65 (c) of the charter. The manner of paying is by assessment on the property owners, and there are two ways by which it may be done. One by direct payment from property owners to the contractor, in payments running over four years; the other by direct payment from the city by issuance and sale of city bonds ultimately repaid to the city by assessments upon the abutting property owners. While the ordinance is silent on the way of payment, (if that be necessary to its validity), we think it could be reasonably interpreted to mean that the property owners should pay direct, the way subsequently provided for in the contract. There were no steps taken to issue bonds. Without them the city could not repave under the second way above designated; and it had ordered that the work be done, and the contract let. No property owner could have been misled as to the way contemplated. *139
Steps in the procedure to improve at the expense of the property which are jurisdictional in the charter are regarded as conditions precedent and their omission renders the assessment invalid. State ex rel. Peckham v. Mayor of Newark,
In paragraph 9 the bill charges that the ordinance is void because it seeks to assess against the abutting owners the entire cost of the repaving between the curbs; that the street railway occupies a portion of the streets to be improved, which it is required to pave at its own expense, the space between its rails and a space of two feet on the outside of the rails; and it is argued that the entire expense could not properly be charged to the abutting owners. The ordinance directs the streets to be repaved or resurfaced between certain designated points, and refers to plans and specifications for the improvement filed in the city engineer's office. By reference to these specifications we find that the work is "confined to that portion of the streets between the curbs and granite block headed adjacent to the outside of the rails of the street car tracks." Just how far this granite block head adjacent to the outside of the rails of the street car track is from the track does not appear, and it would be unreasonable to interpret the ordinance as relieving the traction company from its obligation under the charter. It is shown that the traction company, about the year 1914, paved that portion of the street required by the ordinance to be paved by it, with brick laid on a concrete foundation. We may presume that the excluded portion not to be covered by the work and set out in the plans and specifications, is that portion of the street which is required by positive law to be paved by the *140 street car company. The ordinance, plans and specifications are reasonably clear in that respect. It is not directly charged that the paving done by the street car company will be removed and plaintiffs required to pay for relaying it. The argument is that it may be done. The demurrer was properly sustained to this paragraph.
Paragraphs 7 and 8 of the bill charge in substance that after the ordinance was published some of plaintiffs and other abutting owners were misled by Chapman and Newman, two of the three members of the board of commissioners, as to the character of improvement to be made, receiving assurances from them that the streets would be resurfaced and not repaved; and relying upon these assurances they did not protest within the ten-day period allowed by the statute for that purpose; and that three-fifths of the abutting property owners were then and ever since have been opposed to repaving, and therefore the assurances and representations of the commissioners falsely made constituted a fraud against them on the part of the city, which invalidates the assessment and paving contract. The trial court sustained the demurrer to these paragraphs. If these allegations in fact be true, and they must be so considered on demurrer, they strongly appeal to equity and good conscience for remedy. On the other hand a municipality is not bound by the declarations and assurances of any of its officers in relation to the way in which it will exercise its legislative functions. The question of the necessity and reasonableness of a local improvement is for the determination of the legislature and not for the courts, and the legislative determination of the character of an improvement as a local one is conclusive unless arbitrary and unfounded in reason, 25 R. C. L. p. 99, sec. 14. The question of whether a local improvement shall be made, and the character thereof, may be delegated by the legislature to the city authorities, as was done in this case. It is left to the board of commissioners to determine the necessity for, and to order a street to be paved, repaved, etc. The board of commissioners is not bound by the declarations and assurances of its members when not acting as a board. Many of our cases illustrate this salutary principle. AtlanticBitulithic *141 Co. v. Edgewood,
Under the charter the power of the city to pave or repave or otherwise permanently improve its streets at the expense of those specially benefited is very broad and comprehensive; on the other hand the powers of the abutting land owners to prevent the improvement at their expense, at their election, is accorded to them in a simple effective way. Unfortunately for these plaintiffs (according to the bill) they have waived their right to prevent the improvement in the way accorded by the charter by relying upon verbal assurances from members of the board of commissioners not made while acting as such, that the improvement would not be made. They did so at their own risk. They now seek to defeat the improvement by denying the delegated power to improve at their expense; charging invalidity of the ordinance therefor; the proceedings thereunder; and the contract let at public bid. *143 The bill is well and ingeniously drawn, and the case well argued and briefed by able counsel. On the whole we think there has been a substantial compliance with the provisions of the charter in arriving at and entering into the contract. The demurrer to the bill should have been sustained, and we so answer the questions certified.
Ruling sustained in part; reversed in part; remanded.