I am in accord with the holding of the majority that *Page 245 the personal liability of the defendant King is limited to the aggregate of the last two installments of the assessment here involved, falling due on May 1 of the years 1936 and 1937, with interest from the respective due dates thereof. I agree, in principle, with the holding of the majority that an assessment on a lot for paving purposes, in an amount in excess of the benefits which will accrue to the owner thereof from the improvements proposed to be made, is confiscatory and, therefore, unconstitutional. In my opinion, however, a person may, in such cases, by his conduct, be estopped, as in other cases, from availing himself of a remedy or a defense against such an assessment, which in other circumstances would be clearly available. In my opinion the defendant King has, by his own conduct, barred himself from asserting any defense to the plaintiff's claim, so far as that claim is grounded on the assessment lien against the lot involved, and on this position my dissent is based.
It cannot be denied that the defendant King had full and complete notice of the assessment; that having such notice he made no protest, at any time or in any forum, against the assessment so made; and that he stood by and saw the plaintiff expend its materials, its labor, and its money in improving and adding to the value of his own property; and failed to put the plaintiff on notice that any question would be raised as to the legality of the certificates issued by the city to meet the cost of such improvements.
On this point we need not go further than to quote from the majority opinion, in which it is stated: "* * * but King in his answer takes the position that no special benefits accrued to the property by reason of the improvements. If the allegations of the answer in this regard are true, his position would be tenable, provided he took proper steps to protect himself. With full notice that the street upon which his lot abuts would be paved and with opportunity to protest before the levying body, *Page 246 he made neither appearance nor protest, nor did he prior to the expenditure of money resort to injunctive relief. In silence he permitted the improvement to be made and money expended therefor, and received the benefits therefrom." The Court then cites the cases of Damron v. City of Huntington, 82 W. Va. 401,96 S.E. 53; Mortgage Co. of Maryland v. Lory, 109 W. Va. 310,154 S.E. 136; and Pardee Curtin Lumber Co. v. Rose, 87 W. Va. 484,105 S.E. 792; and then proceeds with this further statement: "The city having the power under its charter to make the assessment and improvements in question, and defendant King not having sought relief in the manner provided for under the charter under which the assessment was made, or, if such protest had been made and overruled, did not avail himself of injunctive relief, he will not be heard to complain except as to that part of the assessment which may be unconstitutional because of excessiveness."
I find no fault in the quoted statements in the majority opinion, and fully concur therein. My contention is that, in the circumstances so well stated in said opinion, the Court should go further and hold that the defendant King should not now be heard to deny that special benefits accrued to his lot from the work performed, but also, that he is estopped from contesting the payment of the entire amount of the assessment made, to the extent that the same may be recovered by the enforcement of the lien of the assessment by a sale of the lot affected by the improvements made.
My position is based upon the doctrine of equitable estoppel, or estoppel in pais, which are now generally understood to mean the same thing. The basic principle of the doctrine is well defined in 19 Am. Jur., 640, wherein it is stated:
"The doctrine of estoppel in pais is founded upon principles of morality and fair dealing and is intended to subserve the ends of justice. It *Page 247 always presupposes error on one side and fault or fraud upon the other and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage. It concludes the truth in order to prevent fraud and falsehood and imposes silence on a party only when in conscience and honesty he should not be allowed to speak. Estoppel of this character arises from the conduct of a party, using the word 'conduct' in its broadest meaning as including his spoken words, his positive acts, and his silence when there is a duty to speak, and proceeds on the consideration that the author of a misfortune shall not himself escape the consequences and cast the burden on another. Accordingly, it holds a person to a representation made or a position assumed where otherwise inequitable consequences would result to another who, having the right to do so, under all the circumstances of the case, has in good faith relied thereon and been misled to his injury."
In the same volume of American Jurisprudence, at page 668, it is stated:
"The courts are especially disposed to uphold a claim of estoppel by silence or inaction where one party with full knowledge of the facts has stood by without asserting his rights or raising any objection while the other party, acting on the faith of such apparent acquiescence, incurred large expenditures which will be wholly or partially lost if such rights or objections are subsequently given effect. This principle finds frequent application in respect to improvements and expenditures upon real property under a claim of right and will be further considered in that connection in a subsequent section. No estoppel arises from a party's failure to object until after expenditures have been made, if such failure is due to ignorance as to the intent of the other party to violate his rights."
In the same volume, at page 640, it is stated, speaking of estoppel: *Page 248
"It may, in proper cases, operate to cut off a right or privilege conferred by statute or even by the Constitution."
And this principle is upheld in 11 Am. Jur., 766, wherein it is stated:
"It is a well recognized rule in constitutional law that estoppel may operate to prevent a party from asserting that an act is unconstitutional, unless the proceedings under the act or what is sought to be accomplished is per se illegal. The acceptance of benefits under the statute generally precludes an attack. Rights may have been secured on conditions preventing the questioning of a law. Thus, where one condition of the granting of a charter to a corporation is its acceptance of a statute, the corporation cannot thereafter question the constitutionality of such statute.
"Estoppel to question the constitutionality of laws applies not only to acts of the legislature, but to ordinances and proceedings of municipal corporations, and may be extended to cases where the proceedings of a municipal corporation are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as to cases where they are attacked on other grounds. * * *."
In Wilson v. Philadelphia School District (Pa.), 195 A. 90,113 A.L.R. 1401, it was stated in the body of the opinion that:
*Page 249"No principle has become more firmly established in the field of constitutional law than the fact that a person may effectively by acts or omissions waive a constitutional right to the protection of which he would otherwise be entitled, provided the waiver does not run counter to public policy or public morals. This is nothing more than the equitable doctrine of estoppel applied in the realm of constitutional law and is uniformly upheld in cases where the constitutional provision is solely protective of property rights."
There is ample authority in our own cases for the application of the doctrine of estoppel in cases similar to the case at bar. Among such cases, in addition to those cited above, are:Champe v. Nicholas County Court, 72 W. Va. 475, 78 S.E. 361;Young v. Columbia Oil Co., 110 W. Va. 364, 158 S.E. 678; N. W. Ry. Co. v. Perdue, 40 W. Va. 442, 21 S.E. 755; Lowther OilCo. v. Miller-Sibley Oil Co., 53 W. Va. 501, 44 S.E. 433. See also New York Trust Co. v. Watts-Ritter Company,57 F.2d 1012; South Penn Oil Co. v. Calf Creek Oil Co., 140 F. 507.
It is clear, as the majority opinion holds, that the statute of limitations bars the right of personal recovery against the defendant King, except as to the last two installments of the assessment involved; but, in my opinion, the lien of the assessment against the lot improved is still in full force and effect, and I do not think the conduct of the defendant King in failing to make an objection or protest when he should have done so, and in permitting the expenditure of money by the plaintiff, presumably to the full extent of the amount assessed against his lot, will not permit him to accept the benefits of such improvement, and at the same time repudiate plaintiff's claim.
For this reason I would reverse the decree of the Circuit Court of Kanawha County, and remand the case for further proceedings.
I am authorized to state that Judge Kenna concurs in this dissent. *Page 250