I find myself unable to concur in the decision of the majority, for the reason that, in my opinion, the failure of the City of Dunbar to give to The Charleston-Dunbar Traction Company notice that it proposed to consider embarking upon the paving project out of which plaintiff's claim arises, before it finally decided to engage in such undertaking, destroyed any right of the city to lay an assessment therefor against abutting property owners, whether imposed by an original assessment or as a reassessment, as was done in this case. Holding this view, it is unnecessary for me to discuss other points raised in the case and considered in the majority opinion.
The original assessment, now sought to be collected as a reassessment, was before this Court in Heller v.Charleston-Dunbar Traction Co., 112 W. Va. 299, 164 S.E. 853. In that case this Court held:
"The Charter of the City of Dunbar (Municipal Charters, Acts, 1921, Chapter 7), requires the council when proceeding to pave its streets, to give notice to the abutting land-owners of the passage of resolution to pave, which must fix a day on which property owners may appear and protest, or otherwise be heard. Then, after hearing protests, it must determine whether it will proceed with the paving. An assessment against an abutting landowner without notice to him of the initial proceedings, express or implied, and who has had no opportunity to be heard is invalid."
In the opinion filed in that case it was pointed out that the Charter of the City of Dunbar required, as a *Page 57 preliminary step, a resolution of the council, declaring the expediency and necessity for the proposed work; and that at the time of the passing of the required resolution there should be on file plans, specifications and estimates; that a day be fixed therein on which abutting property owners might appear and protest. Notice of the passage of the resolution was required to be served on interested property owners, if they could be found, and, if not found, publication of such notice was provided for. After this notice was served or published, the council was required to meet for the hearing of protests, and it could then be determined whether the proposed improvement should be proceeded with and, if it was decided to do so, then to fix by ordinance the nature of the improvement, and the manner of paying therefor. In that case this Court said:
"It is clear that the charter requires that every abutting landowner who is to be assessed must have notice of the passage of the resolution either by personal service or by publication, if he be not found. The purpose of this requirement is to give him an opportunity to be heard against carrying into effect the resolution to pave. The statute, Section 67, says that the council shall sit at the time and place fixed and hear and consider objections thereto, and then determine whether or not it will proceed. But whatever the purpose may be, the law under which the council acted required it to be done. The council derives its power from the charter and the mode of procedure therein set out must be strictly followed in all material respects. Moundsville v. Yost, 75 W. Va. 224, 83 S.E. 910. We think that notice to the property owner to be assessed and a chance to have his objections, if any, considered before the council finally determines to proceed is a material requirement of the statute, and that the city did not have power to assess his property for street improvement until he had been given such notice. Taking a lien on property for a specific sum and declaring that sum to be a personal debt against the owner without his *Page 58 knowledge or opportunity to resist would be a departure from the statute in a material requirement."
Further the Court said:
"If that procedural step had been complied with, there might have been no improvement of Dunbar Avenue".
and,
"Where the statute requires notice to the abutting owner of the intention of the city to make the street improvement, as expressed by passage of its resolution to improve, and further requires a day to be fixed for hearing protests, the notice is prerequisite to confer jurisdiction; and failure to give it has been held to be a jurisdictional defect which avoided the entire proceedings".
The original assessment was held invalid in that case, and that decision is not questioned in the case at bar.
But it is said that the original assessment being void, an assessment can be laid under the provisions of Section 86, Chapter 7, Acts of the Legislature, Municipal Charters, 1921, the pertinent provision of which reads as follows:
*Page 59"In case of the construction of any pavement, sewer, sidewalk or other permanent improvement under the provisions of this act, when an assessment shall be void or voidable by reason of errors, irregularities or defects in the proceedings under which such improvements shall have been made against the wrong person, it shall be the duty of the council, within two years after any court shall have declared such assessment invalid, to cause notice to be given to any person against whom the cost of such improvement might properly have been assessed under this act, of its intention to lay such assessment against him, and fixing a time and place at which he may appear and show cause, if any, why such assessment should not be laid".
The section does provide that the assessment may be made, when a former assessment is void or voidable by reason of "errors, irregularities or defects in the proceedings", or "where the assessment has been made against the wrong party". But does this mean that such an assessment can be made against a person, firm or corporation against whom, by reason of lack of notice, no assessment could have been laid in the first instance? I think not. Notice to property owners affected before a decision to undertake the work, was, in my opinion, necessary to vest in the council power and authority to lay any assessment at any time. If the council could undertake the work without notice, given in advance of such undertaking, and then, years later, lay an assessment on abutting property owners to meet the cost thereof, of what force or value is the charter provision that notice must be given to such property owners before the work is undertaken? In my opinion, Section 86 does not authorize the assessment sought to be enforced. I think it was only intended to provide for what may be termed a "reassessment" in cases where the necessary notice had been given and the council had power, authority and jurisdiction to make the assessment in the first instance, but through some error, irregularity or defect it failed to make a valid assessment, or an assessment against the wrong party. I do not think it was intended to cover cases where the right to lay the assessment never existed.
I would reverse the decree of the circuit court and refuse to enforce the assessment. *Page 60