Barron v. City of McComb

• Decision Date: 16 May 1932
• Docket Number: 29859
• Citation: 141 So. 765,163 Miss. 337
• Court: Mississippi Supreme Court
• Parties: BARRON et al. v. CITY OF MCCOMB

141 So. 765

163 Miss. 337

BARRON et al. v. CITY OF MCCOMB

No. 29859

Supreme Court of Mississippi

May 16, 1932

Division A

Suggestion Of Error Overruled June 13, 1932.

APPEAL from chancery court of Pike county, HON. T. PRICE DALE Special Chancellor.

Bill by Ernest Barron and others against the City of McComb. From a judgment sustaining a demurrer to the bill, plaintiffs appeal. Affirmed.

Affirmed.

J. W. Cassedy, Jr., of Brookhaven, for appellants.

Chapter 59 of the Laws of 1930 is unconstitutional if it is construed to be an authority curing or validating this sidewalk proceeding and assessment which is void because of jurisdictional defects.

Jurisdictional matters are frequently held not to be within the scope of curative statutes; the legislature cannot cure or validate jurisdictional defects.

Statute providing that after a special assessment shall be set aside or be invalidated in whole or in part the council may cause a new assessment to be made in the manner provided in the original assessment, which shall have the same force and effect as the original assessment, confers no right to make the reassessment where the original proceedings are void for want of jurisdiction.

44 C J. 773, Sec. 3347.

A curative statute is necessarily retrospective in character and may be enacted to cure or validate errors on irregularities in legal or administrative proceedings, except such as are jurisdictional or affect substantive rights.

6 R. C. L., page 320, Sec. 309.

A statute validating an assessment after it has been adjudged invalid by a court of last resort is invalid as all assumption of jurisdictional power by the legislature.

McManus v. Hornaday, 124 Iowa 267, 100 N.W. 33, 104 Am. S. R. 316, 2 Ann. Cas. 237 Baltimore v. Horn, 26 Md. 194; Thomas v. Portland, 40 Ore. 50, 66 P. 439.

The legislature cannot legalize a special improvement assessment which is void for failure to comply with jurisdictional requirements made necessary by the State and Federal Constitutions.

Cooper v. Bozeman, 54 Mont. 277, 169 P. 801; Shappard v. Missoula, 49 Mont. 269, 144 P. 544; Haggart v. Alton, 29 S.D. 509, 137 N.W. 372; McSurely v. McGraw, 140 Ia. 163, 172 N.W. 415; Walpole v. Elliott, 18 Ind. 258, 81 Am. Dec. 368; Brownwell v. Greenwich, 114 N.Y. 518, 22 N.E. 24, 4 L.R.A. 685; Swartz v. Carlisle Borough, 237 Pa. St. 473, 85 A. 847, Ann. Cas. 1914B. 458; Enid v. Gensman, 76 Okla. 90, 181 P. 308; Hall v. Wilton Company, 66 Cal.App. 615, 227 P. 649; Kelly v. Lunning, 76 Cal. 309, 18 P. 335; Rollins v. Wright, 93 Cal. 395, 29 P. 58; Haaren v. High, 97 Cal. 445, 32 P. 518; Ramish v. Hartwell, 126 Cal. 443, 58 P. 920; Ap v. Stockton, 61 N.J.L. 520, 39 A. 921; Merrian v. Passaic, 38 N.J.L. 171; Peo v. Brooklyn, 71 N.Y. 495; Kelly v. Cleveland, 34 Oh. St. 468; Sullivan v. Pausch, 5 Oh. Cir. Court 196, 30 Oh. Cir. Dec. 98; Seattle Cedar Lumber Co. v. Ballard, 50 Wash. 123, 96 P. 956; Thompson v. Lee County, 3 Wall, 327, 18 U. S. (Fed.) 177. Thompson v. Perrin, 103 U.S. 806, 26 U.S. 612; McCord v. Sullivan, 85 Minn. 344, 88 N.W. 989, 89 A. S. R. 561.

The rule in respect to statutes curing defects in legal proceedings, amounting to mere irregularities not extending to matters of jurisdiction, and in the absence of constitutional limitations, is that if the thing wanting, or which failed to be done and which constitutes the defect in the proceeding, is something the necessity for which the legislature might have dispensed with by prior statute, the legislature has power to dispense with it by subsequent statute, and if the irregularity consists in doing some act, or in the method of doing it, which the legislature might have made immaterial by prior law, it may be made immaterial by a subsequent law. But the legislature has no power by a remedial statute, to legalize defective proceedings under a former statute, where it has no present authority to authorize like proceedings; nor has it power, by a subsequent curative statute, to remedy a jurisdictional defects, or one which goes to the substance of a vested right.

6 R. C. L., page 321, section 310.

Chapter 59 of the Laws of 1930 is unconstitutional and is contrary to section 14 of Article 3 of the Constitution of the State of Mississippi and is unconstitutional because it is contrary to Article 5 of the Amendments to the constitution of the United States.

If this law is unconstitutional it merely applies to informalities and irregularities which are not jurisdictional defects and, therefore, said law is not sufficient authority to give the appellee, City of McComb, the power to cure and validate the void proceeding.

The Legislature does not have the power to validate the original sidewalk proceeding for the reason that the Legislature had no power under the Constitution to authorize the construction of sidewalks and the levying of assessments for the payment of same without granting to the property owners an opportunity to protest or object, and to be heard, and to appeal to the courts.

Bouslog v. City of Gulfport, 112 Miss. 184, 72 So. 896; Donovan v. Mayor and Council of Vicksburg, 29 Miss. 247, 64 Am. Dec. 143; Londoner v. City of Denver, 210 U.S. 385, 28 S.C. 714, 52 L.Ed. 1103; Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S.C. 625, 59 L.Ed. 1027; and Spencer v. Merchant, 125 U.S. 345, 8 S.Ct. 921, 31 Law Ed. 763; Cox v. Wallace, 56 So. 461; Wilkinson v. Lee, 51 So. 718.

The only defensible rule is that which requires that at some stage of the proceedings, before the judgment or decision becomes conclusive, the landowners should have notice, or the opportunity to be heard.

Nugent v. Jackson, 72 Miss. 1040, 18 So. 493; Stuart v. Palmer, 74 N.Y. 183.

It is very generally held that property owners are entitled to notice of an assessment and a hearing thereon, and that an improvement statute which makes no provision for notice and hearing is unconstitutional.

28 Cyc. 1145.

The concensus of opinion is that it is necessary to the validity of a special assessment that somewhere along the line of the proceedings, notice be given to the owner and an opportunity afforded him to be heard in opposition or defense, and that statutes which make no provision for notice are unconstitutional.

Hamilton on Law of Special Assessment, 145, 100, 101; Stuart v. Palmer, supra; Garvin v. Daussman, 114 Ind. 429, 16 N.E. 826, 5 Am. St. Rep. 637; Violett v. Alexandria, 92 Va. 561, 23 S.E. 909, 31 L.R.A. 382, 53 Am. St. Rep. 825; Gray on Limitation of Taxing Power, par. 1165.

Ulman v. Baltimore, 72 Md. 609, 21 A. 711, 11 L.R.A. 224; 12 C. J., sec. 1061, page 1260.

Price, Cassidy & McLain, of McComb, for appellee.

The general rule has been often declared that the legislature may validate retrospectively the proceedings which they might have authorized in advance; therefore, if any of the directions of the statute fail of observance which are not so far of the essence of the thing to be done that they must be provided for in any statute on the subject, the Legislature may retrospectively cure the defect.

Cooley on Taxation, page 227.

This court has upheld the constitutionality of a statute which had the effect of curing retrospectively an invalid assessment on which a tax sale was based.

Marhle v. Phyfe, 69 Miss. 596, 13 So. 842.

The Legislature had the authority by general law by the passage of a statute curative in its nature, and not creative, to validate the proceedings, as well as the bonds resulting from the proceedings.

Reed v. Norman Breaux Lumber Company, 107 So. 545, 142 Miss. 756.

A reassessment of property for the benefit of a public improvement may be made where the original assessment has been insufficient or illegal, or where property subject to the assessment has been omitted. Furthermore, reassessments may be made without violation of the guaranty of due process for the maintenance and repair of public improvements. If the owner has, by reason of notice or otherwise, been properly made a party to the proceedings, no additional notice of the reassessment need be given him.

12 C. J. 1265, par. 10167.

An inheritance tax law, void for lack of provision for notice, may be corrected in this regard, and is then applicable to property not yet distributed, although the testator died before the law was amended.

50 L.R.A., p. 92.

There is no doubt of the right of the Legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws not forbidden, eo nomine, by the state constitution, and provided further that no objection exists to them other than their retrospective character.

Cooley on Taxation, page 77.

A retrospective statute curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds unless expressly forbidden.

Cooley on Taxation, page 773; Thompson v. Perrine, 26 L.Ed. 612.

The court has upheld the constitutionality of a similar statute.

Bryan v. Greenwood, 112 Miss. 718, 73 So. 728.

By the weight of authority it is regarded as within the power of the legislature to validate, or provide for validating, an assessment which is void because of nonjurisdictional defects or irregularities in the proceeding, where the omissions or irregularity is as to something the legislature, by a prior statute, might...