City of Jackson v. Buckley

• Decision Date: 28 June 1920
• Docket Number: 21313
• Citation: 123 Miss. 56,85 So. 122
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON v. BUCKLEY

85 So. 122

123 Miss. 56

CITY OF JACKSON v. BUCKLEY

No. 21313

Supreme Court of Mississippi

June 28, 1920

March 1920

.

1. MUNICIPAL CORPORATIONS. Appeal from assessment order is exclusive remedy, and if not taken assessment cannot be collaterally attacked.

Under chapter 260, Laws 1912, granting municipal authorities the power to assess the cost of street improvements to abutting property owners, and allowing the owner an appeal from the order fixing the assessment, the remedy by appeal is exclusive, and if no appeal is taken the assessment is final and cannot be collaterally attacked by bill in equity.

2. MUNICIPAL CORPORATIONS. Landowner cannot set up defective performance of contract as bar to assessment in absence of fraud.

In a suit by a municipality to foreclose the statutory lien for street paving, the municipality, in the absence of fraud, is the judge whether the special improvements have been done according to contract. So, in absence of fraud or a fundamental difference between the work contracted for and the work accepted, a defense cannot be made that the contract has not been performed according to its terms.

3. MUNICIPAL CORPORATIONS. Onwer assessed for paving cannot complain that street railway was not required to pave center of street.

An abutting owner assessed with the cost of paving one-third of the street in front of his property cannot complain at his assessment on the ground that the municipality, though empowered so to do, failed to require a street railway company to pave the center of the street occupied by its car tracks.

HON FRANK ROBEBSON, Special Chancelor.

APPEAL from chancery court of Hinds county, HON. FRANK ROBERSON, Special Chancelor.

Suit by the City of Jackson against Mrs. Agnes Buckley, with cross-bill by defendant. Decree for defendant, and complainant appeals. Decree reversed, bill of complaint sustained, and cross-bill dismissed, and cause remanded.

Decree reversed, bill of complaint sustained, and cross-bill dismissed, and case remanded.

W. E. Morse, for appellant.

I. The court erred in dismissing the bill of the city of Jackson. The principles in this case have been passed upon by this court in case of Edwards House v. City of Jackson, So. 14; Sparks v. City of Jackson, 79 So. 67.

The property owners were assessed with the cost of the paving done and they did not appeal therefrom. They were not required to do any more, or less, work by the elimination of the car line, neither were they compelled to pay any more for the special assessment. This is the same proceeding had in the Edwards House case from start to finish. The Edwards House case was upheld by all subsequent cases of this court.

The court in the case of Sparks v. City, 79 So. 67, recited in its opinion that the proceeding was identically the same with the proceeding in the Edwards House case. The contention of the city being upheld in the Sparks case.

(A) The city had a right to eliminate the paving of the street railway property. The city of Jackson eleminated the Street Railway in the Edwards House case and this was one of the grounds of the demurrer raised in that case by counsel representing appellees at the present time. There were several changes in the Edwards House case, change of grade, eliminating the Street Railway and several other changes. These questions were all before the court at the time it was passed upon, but the court did not consider them of enough importance to even set them forth in its opinion. (28 Cyc., page 1111) Estates: "That the city may pave the rest of the street at the cost of the abutting property owners whether the street car line has been paved or not." Citing the case of Baker v. Savannah, 86 Ga. 301, 12 S.E. 580, which clearly upholds the right of the city to eliminate the street car line and compel the abutting property owners to pay for the paving as done. The court has really passed upon this case in the case of Sparks v. City of Jackson, 79 So. 67.

The following cases are taken from different states and uphold the contention of the city, that by eliminating the street car line from being paved it did not relieve the property owner from paying for the special assessment. Lake Erie & W. R. Company v. Walters, 13 Ind.App. 275, 41 N.E. 465.

(A) The amount of paving to be done or paid for by the property owners was not changed by leaving a grass plot or neutral ground. There were no charges in the specification as the original ordinance provided creosote wood block and there was no protest by the property owners. The ordinance declaring the work necessary gave notice to the property owners that they were to pave or pay for paving one-third of the street, and notified the street car company that it was to pave between its tracks and for two feet on either side thereof.

The ordinance eliminating the street car line area from being paved did not change or affect the work to be done by the property owners. The same material was used that was originally adopted and the only evidence upon the question was that it was done in a good and workman-like manner. But, says the property owners, the work that we were notified to do was adopted August 1, 1911, and we were not notified of the elimination of the car line in said notice. The supreme court had held repeatedly that the notice is a notice to do the work and not notice of the necessity of the work. Greenville v. Harvie, 31 So. 425; City of Jackson v. Williams, 45 So. 551.

The statute in this proceeding makes the municipal authorities quasi-judicial bodies, and after they have acquired jurisdiction by declaring the work necessary they were in practically the same position as a party who files his bill in chancery and has a summons served on the defendant. As it is the duty of the defendant to contest every step taken by the plaintiff without further notice, just so it becomes the duty of the property owner to follow the different steps taken by the board, to protest, when they desire to protest, to appeal when it is his duty to appeal, and the city is not required to give separate notice of each and every step taken, as said by Judge MAYES in the case of Edwards House v. City of Jackson, 45 So. 14.

II. The court erred in allowing any evidence as to set-off or recoupment. (A) Because enforcing the paving lien is a special statutory action and there is no provision for set-off or recoupment. Bayes v. Pointville, 1916B, L. R. A. (N. S.) page 1031; Bodley v. Finley, 111 Ky. 618, 64 S.W. 439; Purdy v. Drake, 17 Ky. L. Rep. 819, 32 S.W. 939; Dill Mun. Corp., 810; Richardson v. Mehler, 111 Ky. 408, 63 S.W. 957.

The general rule supported by a majority of the cases is that no set-off or counterclaim is admissible against demands for taxes, since they are not in the nature of contracts between parties but the positive acts of the government through its agents, binding upon the inhabitants, and to making and enforcing of which their individual consent is not required.

The rule was so stated in Apperton v. Memphis, 2 Flipp. 363, F. Cas. No. 497, but the question in the case was one as to the power to impose an assessment on the property in question. And under this rule damages sustained by a taxpayer by reason of the negligent performance of the work under a contract for macadamizing a street cannot be set up as a counterclaim in an action to recover a special tax assessed therefor. Burlington v. Palmer, 67 Iowa 681, 25 N.W. 877; Himmelmann v. Spanagel, 39 Cal. 389.

So, a counterclaim in a suit to foreclose a statutory lien for an assessment for the construction of a sidewalk upon the theory that the work was not done according to the plans and specifications, and that the abutting owner assessed therefor was damaged thereby, cannot be maintained. Darnell v. Keller, 18 Ind.App. 103, 45 N.E. 676.

And unliquidated damages arising ex delicto on a claim by a landowner that in the construction of a sewer the contractor carelessly, recklessly, negligently, and by the unskillful use of high and powerful explosives, injured a building on his land, cannot be set-off against a claim for special tax for the construction of the sewer. Philadelphia, ex rel., Jones v. O'Conner, 9 Pa. Dist. R. 230, 23 Pa. Co. Ct. 653.

Nor are the damages sustained by a landowner a proper subject either of counterclain or set-off against a special assessment therefor, collection as such assessment for the construction of a ditch or drain and to enforce the statutory lien therefor on real estate. Laverty v. State ex rel. Hill, 109 Ind. 218, 9 N.E. 774.

III. The court erred in failing to find for the city of Jackson and in failing to give a decree for the amount of the assessment, interest, attorney's fees and court cost. When the property owners petitioned the city of Jackson to do the work, they thereby estopped themselves from asserting any irregularities to the paving proceeding. To hold otherwise would be an injustice, for the reason that the people petitioned for the work to be done, they set the machinery in operation and the court will not allow them to sit complacently by, wait until the work is completed and then attempt to find some irregularities in the proceeding whereby they attempt to defeat the proceeding. 28 Cyc. page 1172. Our own courts in the case of Meridian v. Hudson, 71 So. 574 and Oliver v. Macon, 71 So. 575, has upheld this theory.

The property owners cannot offset any of their claims against the city because an off-set is based upon a sum certain and is not applicable in other cases. They cannot recoup any damage for the reason that recoupment is purely a common-law remedy and this is an equity proceeding. They cannot recoup or counterclaim for the further reason that this remedy is not available to them in this...