City of Canton v. Davis
| Decision Date | 17 January 1927 |
| Docket Number | 25960 |
| Citation | 145 Miss. 610,111 So. 137 |
| Court | Mississippi Supreme Court |
| Parties | CITY OF CANTON v. DAVIS. [*] |
Suggestion of Error Overruled Jan. 31, 1927.
APPEAL from chancery court of Madison county, HON. V. J. STRICKER Chancellor.
Suit by the city of Canton against J. R. Davis. From a judgment for defendant, plaintiff appeals. Affirmed.
Judgment affirmed.
H. B Greaves, for appellant.
The record shows that only one portion of one of the main streets of the city of Canton had been paved, and that about ten years ago. There had never been any system of paving, only this one stretch of street, about three hundred yards long, on the street leading from the depot to the public square, this being the most traveled street in the municipality.
It is clear that under Lumber Co. v. City of Hattiesburg, 132 Miss. 1, 95 So. 250; and City of Jackson v. Doxey, 128 Miss. 618, 91 So. 348, that if the city had adopted a system of paying for the paving of its streets, then the above quoted case would cover this case and be conclusive in favor of the appellee, unless the appellee is estopped but no such statement of facts existed here as existed in those cases. There is nothing in the record to show that any system of paying for pavement had ever been adopted or that there has been any paving except the one stretch of street above referred to.
An examination of chapter 211, Acts of 1914, will disclose the fact that there is no requirement that the property owners must be notified. The only requirement is that they be given thirty days in which to make this improvement, if they so desire. Our contention is that the property owners once being in court are required to keep up with the proceedings and not be summoned anew in each step; otherwise, the process of paving or issuing bonds would be hazardous in the extreme. Edwards House Co. v. City of Jackson, 91 Miss. 429, 41 So. 14; City of Jackson v. Williams et al., 92 Miss. 316, 46 So. 551; R. R. Co. v. City of Jackson, 96 Miss. 573, 51 So. 802; Bryan v. City of Greenwood, 112 Miss. 730, 73 So. 728; Sparks v. City of Jackson, 118 Miss. 502, 79 So. 67.
In the instant case, these parties petitioned the city to make this improvement, and in this petition is set out the nature and kind of material the street was to be paved with, and that they were satisfied that one-third of the cost was to be paid for by the property owners on each side and one-third by the city, and requested that the ditch be covered with concrete, in consideration for which the city was to cover the ditch, which it did, and which the agreed statement of facts shows was done, which constituted a valid consideration on the part of the city, even though everything else fails, which will act as an estoppel precluding the defendant from objecting to having his property assessed with its portion of the cost.
In the resolution passed on September 6, 1923, it is directed that property owners shall have thirty days to make improvements. This seems not to have been published but I see no directions for publication of same required by Laws of 1914, chapter 211. At any rate there is nothing in the pleadings to show the defendant had any intention or desire to do the improvement himself.
The original resolution setting out the intention to pave was duly published and no protest was filed. Defendant being in court was required to keep up with the proceedings without further notice. See Edwards House Co. v. Jackson, 91 Miss. 429, 45 So. 14; Sparks v. City of Jackson, 118 Miss. 502, 79 So. 67. The defendants not having appealed are finally precluded. See Union Savings Bank & Trust Co. v. City of Jackson, 84 So. 388, 122 Miss. 557; City of Jackson v. Buckley, 123 Miss. 76.
It is alleged that neither the amended bill nor the exhibits allege sufficient facts to stop the said defendant from setting up the invalidity of the proceedings under which said special improvements were made; but note Teegarden v. Davis, 36 Ohio St. 601; Stephenson v. Daniels, 27 id. 544; Hager v. City of Burlington, 42 Iowa 661, a good case. 23 A. S. R., page 746 is directly in point and cases there cited. See, also, Burlington v. Gilbert, 31 Iowa 350, 7 Am. Rep. 143, which is directly in point here; 48 Am. Rep. 438, Con. Op. 451 (I invite the court's attention to the opinion in this case and the array of authorities there cited and quoted; section 11, Acts of 1912, page 331; Langstaff v. Durant, 111 Miss. 820; Edwards House Co. v. Jackson, 91 Miss. 429; Sparks v. Jackson, 118 Miss. 502, 79 So. 67; Jackson v. Buckley, 123 Miss. 76.
Appellants contend, regardless of estoppel set up in his amended bill, that the proceedings were regular and sufficient under the authorities cited. The records show a strict compliance with all requirements of chapter 260, Acts of 1912, and all resolutions required to be published were published. We contend that even if there are any irregularities in the original proceedings, the amended bill sets forth sufficient grounds for estoppel, because "If the party who assails the assessment has induced the officers to enter upon the work, his complaint should meet with no favor from the courts." See last paragraph, section 590, page 615, (2 Ed.), Elliott R. & L., and authorities there cited; see also pages 617 and 621; Wood v. Norwood, 52 Mich. 32; Burlington v. Gilbert, 31 Iowa 356 at 365, 7 Am. Rep. 143; City of Lafayette v. Fowler, 34 Ind. 140; State v. Mitchell, 31 Ohio St. 592; Warren v. Grand Haven, 30 Mich. 24; Bryan v. Detroit, 18 Mich. 495, and 50 Mich. 56; Peoria v. Kidder, 26 Ill. 351; Sleeper v. Bullen, 6 Kans. 300; Pease v. Whitney, 8 Mass. 93; Fergerson v. Landrum (Ky.), 1 Bost. 548; Ferguson's Appeal, 96 Pa. St. 140; Metz v. Detroit, 18 Mich. 495; 15 Ohio St. 64; 25 N.J.Eq. 298; Webber v. San Francisco, 1 Cal. 455. See also the very strong case upholding our contention: Stewart v. Board (Kan.), 23 A. S. R. 746; and also 46 Con. 375, 98 Ill. 632, 99 Ind. 117; 104 Ill. 54; section 367, Elliott R. & L. (2 Ed.), citing People v. Miller, 109 N.Y. 69, 35 N.E. 405.
The conduct of the defendant estops him from Contesting this paving charge even though there should be irregularities therein. I submit that this case should be reversed and judgment entered here in favor of appellant, establishing a lien for said improvements on the property of appellee.
Powell, Harper & Jiggitts, for appellee.
I. The method adopted by the mayor and board of aldermen for the payment of the special improvements involved in this case was not the same as that adopted for all streets in the municipality. Section 5944, Hemingway's Code, being chapter 260, Laws of 1912. City of Jackson v. Doxey, 128 Miss. 618; Firm Lbr. Co. v. City of Hattiesburg, 132 Miss. 1; and Firm Lbr. Co. v. City of Hattiesburg, 133 Miss. 808, have firmly established the doctrine that where the city began to make special improvements prior to the passage of the act of 1912, subsequent to that time the city cannot change the method of its assessment, so long as it is acting under the laws of 1912.
In the case at bar the legislature had issued its mandate to the city authorities in 1912 and in 1916 the city of Canton well knowing the provision made by the legislature in 1912, that when a city adopted a method for the payment of special improvements it was irrevocably bound by such act until the legislature should make a change in the laws of the state and in the authority given to the city governing bodies. And yet in 1916 the city of Canton knowing this fact proceeded to pave West Peace street and to pay for same out of its general fund and the proceeds from its bonds. Then in 1923 without the legislature's having changed the law or the authority given to the governing bodies, the city of Canton attempted to make the special improvements involved in this case and to require the abutting owners to pay one-third of the cost, which, in our view, was in utter disregard of the act of 1912.
II. The time by law for the property owner to do the work himself was not given. The intention ordinance was the only order, ordinance or resolution dealing with plans and specifications that was published. Chapter 260, Laws of 1912 only required that the intention ordinance be published, as shown by section 6 thereof, and a notice to the property owners that the assessment had been made, as shown by section 20 thereof.
However in 1914 the legislature seems to have felt that it had placed too light a burden on the city authorities in reference to the power that it had given them to fix liens on private property and had placed too great a burden on the property owners when it required the property owners to keep up with the various steps in the special improvement proceedings with only one notice. The laws of 1914 added a provision requiring the city to publish a notice of the fact that it had adopted plans and specifications.
The city of Canton has failed to carry out the law and the proceedings involved in this case are void.
III. No order, ordinance, or resolution adopting plans and specifications was ever passed or published.
IV. The facts do not justify the application of the doctrine of estoppel. If the contention of appellant were adopted--that the property owners are estopped--then we say that if a party so much as files a petition with the board of mayor and aldermen that he is then estopped, no matter what the subsequent events may be and no matter whether or not the city was misled in any way.
V. The law does not justify the application of the doctrine of estoppel. This is a proceeding as shown by the bill, amended bill and supplemental bill, to enforce a lien against the property of the appellee. See 17 R. C. L., page 597, section 3. None of the...
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