Lum v. City of Vicksburg

• Decision Date: 25 March 1895
• Citation: 18 So. 476,72 Miss. 950
• Court: Mississippi Supreme Court
• Parties: W. S. LUM v. THE CITY OF VICKSBURG

18 So. 476

72 Miss. 950

W. S. LUM v. THE CITY OF VICKSBURG

Supreme Court of Mississippi

March 25, 1895

FROM the chancery court of Warren county, HON. CLAUDE PINTARD Chancellor.

In 1894 certain real estate of appellant, Lum, in the city of Vicksburg, was given in by him to the city assessor for taxes. On June 4 the assessor reported to the board of mayor and aldermen certain property as being undervalued, including the property of Lum. The board, being then in session ordered the city clerk to notify the property holders that it would meet July 5 to consider the report. On the day named the board met and considered the report as to certain parties, not including Lum, and, as to others, referred the matter to the finance committee, with instructions to consider and report on July 12. On that day the board met and considered the report of the committee, and, by a general order, adopted the same. The effect of this was to raise the valuation of Lum's property, in accordance with the recommendation of the assessor. Thereafter this bill was filed by him to enjoin the collection of the taxes on his property to the amount of the excess in valuation above what he gave it in for. The bill was answered, and the defendant made a motion to dissolve the injunction on pleadings and proof, which was sustained, and a decree was entered against complainant and his sureties on the injunction bond for the amount of unpaid taxes, with ten per cent. damages.

It was agreed as a part of the record that, on June 1, 1892, the mayor and aldermen of Vicksburg, by resolution duly entered upon the minutes of the corporation, elected not to come under the provisions of chapter 93, code 1892, and that this was certified to the secretary of state. Said chapter went into effect April 1, 1892, and contains general provisions applicable to municipal, corporations. Section 3035 therein provides that, from the date it becomes operative, every municipality in the state shall be governed by the provisions thereof. "But an existing municipality, by resolution of its corporate authorities, entered of record and certified to the secretary of state within twelve months after this chapter becomes operative, may elect not to come under the provisions hereof." The section further provides that the chapter shall not apply to a municipality so signifying the wish of its corporate authorities, unless, by a majority vote of the electors therein, it determines to come under the operation of the chapter.

The opinion contains such further statement of the facts as is necessary to an understanding of the questions decided.

Affirmed.

McLaurin & McLaurin, for appellant.

1. The action of the authorities is illegal, because the board failed to name the kind of notice and the length of time that it should be given, as required by § 30 of the city charter. The time for considering the report of undervaluations was fixed, and the clerk was ordered simply to notify the property owners that the board would meet at that time to hear objections. In Railway Co. v Brennan, 69 Miss. 103, in discussing this section of the city charter, the court says that it confers the power to determine the taxable value of property--a tremendous and dangerous power--and that there is need of observance with scrupulous exactness of the few safeguards of the property owners. The notice here was wholly insufficient. The clerk issued what purports to be a summons, but what right did he have to assume that the notice served on the ninth of June to compel property holders to appear July 5 would be sufficient? How did he know but that a newspaper publication or posting of notices would be proper?

2. The action of the board was illegal, because it received the report on one day and acted on another, while § 30 of the charter provides that it shall be received and considered at the same time. If this is not the correct construction then there should at least be notice to the property holders that the report of the assessor is to be received. The reported undervaluation was presented to and received by the board June 4, and was considered July 12. Our contention is, that the report should have been received and considered at the same time. This is manifest from a grammatical construction of said section.

3. The notice in this case was insufficient and void, because it was not issued under the seal of the corporation. When the board met to consider the report of the city assessor it was acting in a judicial capacity, and appellant was a party defendant to proceedings before it. In such case, without legal summons, the board acquired no jurisdiction. 111 U.S. 17; Griffin v. Mixon, 38 Miss. 424; Coulson v. Harris, 43 Ib., 728.

Under the common law, which is in force, the process of a court without its seal is void. 20 Law. Rep. Ann., 424; 3 Smed. & M., 87; Dogan v. Brown, 44 Miss. 235.

4. The action of the board is void, because the record shows that no particular time for the receipt of the report of undervaluations, to be made by the assessor, had been provided for, as was expressly required by § 30 of the charter. Railway Co. v. Brennan, supra.

5. The action is illegal, because the record shows the board did not act on the report of the assessor at the time provided by the order of the board, July 5, but referred the report to a committee, and, on July 12, adopted the report of this committee as to the property considered by it, and by general order of that date raised the assessment of appellant without having previously considered it, or without notice that the valuation would be considered on that day. The board had no right to refer this matter to the finance committee. The question of assessment must be considered by the board as a body, at a time and place to be definitely fixed. This was not done in the present instance, and appellant had the right to enjoin the collection of the tax illegally imposed. Ball v. Meridian, 67 Miss. 91.

6. The court erred in decreeing ten per cent. damages on dissolution of the injunction. There had been no seizure or sale, and damages were not allowable. But we submit that the injunction should have been perpetuated.

J. M. Gibson, on the same side.

In view of §§ 80, 87, 88, constitution 1890, it is submitted that § 3035, code 1892, is unconstitutional. No special charter could have been granted to Vicksburg by express act of the legislature of 1892, and, therefore, the legislature could not delegate to municipal authorities power to adopt a charter.

Again, could the legislature delegate to corporate authorities the power to repeal a statute or enact a law without the vote of the citizens of the municipality? Under some constitutions, a local law may be made to depend upon the vote of the people of the locality, but under our constitution this cannot be done, because the people have, without reserve, delegated to the legislature the discretion to act in such cases. The constitution provides that the legislature shall pass general laws, under which cities may be chartered and their charters amended. Even if the legislature could make a law depend for its existence upon the happening of an event, it cannot refer the right of selection of one of several laws to corporate authorities. Cooley on Con. Lim., §§ 117, 123; 3 Am. & Eng. Enc. L., pp. 698, 701, and authorities cited; Ex parte Wall, 48 Cal. 279. The section of the code in question undertakes to permit the corporate authorities, without approval of the governor, to repeal chapter 93 of the code, by electing not to come under its provisions.

Accepting the construction announced in Jackson v. Schlomberg, 70 Miss. 47, and State v. Govan, Ib., 535, that if the corporate authorities took no action within twelve months, chapter 93 of the code went into effect, does it not follow that by mere nonaction, or by simple resolution, the corporate authorities re-enacted the provisions of the old charter and repealed the code chapter prescribing the mode and manner of assessments for municipal purposes? These constitutional questions were not presented in the cases cited. Clearly, the whole scheme of the constitution for correcting the abuses growing out of special legislation would, as to municipalities, be defeated by sustaining § 3035 of the code.

There are other reasons, presented by associate counsel, why the decree in this case should be reversed. But, as the constitutional question involves a matter of special interest and grave concern, we have restricted our argument to that.

Booth & Anderson, for appellee.

1. The decree in this case comes clearly within the rules announced by this court in Railway Co. v. Brennan, 69 Miss. 103. Every step taken by the authorities was in pursuance of the city charter, and the appellant has no right to complain.

2. We will not discuss the question urged by counsel as to the constitutionality of § 3035, code 1892. It is very clear that the section is...