(concurring in the result):
Were it not for section 39 of the charter of the city of St. Marys, Acts 1901, ch. 147, the decision rendered would not meet my concurrence. That section reserved to the City óf St. Marys the powers that its immediate predecessor, the town of St. Marys, had under the general provisions of Code 1899, ch. 47, not inconsistent with the powers conferred by the new charter. It would seem that the power specially to assess abutting property owners for the cost of sidewalks, theretofore existing in the town of St. Marys by virtue of chapter 47, is not inconsistent with the powers granted by the new charter, and was reserved to the city as chartered by Acts 1901, ch. 147.
But unless there is some such, provision in the charter of a town or city specially passed by the Legislature subsequent to the original taking elfect of chapter 47, which was on April 1st, 1869, the provisions of that chapter should not apply to the municipality so chartered by the Legislature. My construction of section 1 of chapter 47 has always been that it made the provisions o’f-that chapter to apply only to municipalities established by circuit court incorporation pursuant to the chapter after its enactment, and to municipalities theretofore established howsoever, but that when a special charter was thereafter granted by the Legislature, the municipality taking it.was independent of chapter 47, unless the legislative charter specifically made it to apply. In other words, chapter 47 is only an amendment to such charters as existed when that chapter originally became law. Charters granted by the Legislature thereafter contain all that the lawmaking body intended them to contain, and do not include the provisions of chapter 47 unless they so expressly provide. The involved language of section 1, chapter 47, as it appears in the present Code, is made clearer by a ' reference to its original form in the Code of 1868.
Properly interpreted, section 1 of chapter 47 means that the *38provisions of that chapter shall thereafter, that is, after the taking effect of the chapter on April 1, 1869, be applicable to municipalities incorporated under the scheme provided therein, and that municipalities theretofore established may exercise the powers conferred by the chapter, though the same may not be conferred by their charters. The section must be taken as speaking at the time of its becoming law. It meant only that the chapter should be law for municipalities chartered generally under it and an amendment to existing charters. It was not intended to bind or to dictate to future Legislatures what should he the law of municipalities thereafter established. The section deals only with municipalities incorporated under the general law of the chapter to which it is an introduction, and with those existing at the date of its enactment. As to municipalities thereafter specially chartered by legislative acts, the section, in reason, left it to the Legislature to define their powers, to create them as the lawmaking body saw fit. It certainly did not undertake to amend them in advance. The chapter does not purport to deal at all with, special legislative charters thereafter to be granted.
In at least two of our cases my view seems to have been inferentially recognized: Harvey v. City of Elkins, 65 W. Va. 305; and Whelsell v. City of Elkins, 68 W. Va. 709.
The construction of section 1 of chapter 47 herein suggested is not necessarily strict construction. It is 'only the plain and reasonable purport of the statute. But if strict, it is that which must be resorted to in looking for power of taxation by special assessments.