City of Jackson v. Mims

• Citation: 123 Miss. 78,85 So. 124
• Decision Date: 28 June 1920
• Docket Number: 21342
• Court: United States State Supreme Court of Mississippi
• Parties: CITY OF JACKSON v. MIMS

85 So. 124

123 Miss. 78

CITY OF JACKSON v. MIMS

No. 21342

Supreme Court of Mississippi

June 28, 1920

March 1920

1. APPEAL AND ERROR. Chancellor's findings of fact conclusive.

The supreme court will not reverse the chancellor's decree on disputed facts, unless such decree is manifestly wrong.

2. MUNICIPAL CORPORATIONS. Failure to notify owner renders any assessment void.

Under sections 3411 and 3412, Code 1906, failure to serve the abutting property owner with notice of special improvements and that the cost thereof will be assessed against the owner renders any assessment against such owner void, and justifies the interposition of a court of equity.

HON FBANK EOBEBSON, Special Chancellor.

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

Suit by the City of Jackson against Mrs. Deeta Mims, Decree for defendant, and complainant appeals. Affirmed.

Affirmed.

W. E. Morse, for appellant.

The resolution declaring the work necessary and stating the street, etc., and the resolution providing the plans and specifications were all of the notices required by law to be given the property owner to do the work himself or so that the city would do the work and charge him with the cost thereof.

The notice given by the street commissioner to the land owner is a notification for him with the cost thereof. Judge WHITFIELD in the case of Nugent v. Jackson wherein he was interpreting section, 3011 and 3012, Code 1892, which is practically identical with sections 3511 and 3412, Code 1906, said: "The first character of notice is intended to give the said property owners opportunity to file their majority protest; the five days' notice is meant to give them that much further time in which to exercise their election as to whether they will "make the improvement themselves or let the municipality do it."

The defendant herein, Mrs. Deeta Mims, allowed the time of protest to expire, and she stated that she did not protest. This leaves us the proposition that she was served with notice for her to do the work herself or in default that the city would do it. Mrs. Mims saw the work being done, saw it begin up at Manship street and come on down the hill past the Jewish Cemetery up to her house, saw the men working day after day and did not raise her voice in protest. She sat quietly by and when notice of the special assessment was given with her name with the amount of the lien on her property given, she did not appeal therefrom or raise any objection, but waited until suit brought before she recollected that no notice to do the work had been given her. The city thinks that she should be estopped to say that notice to do the work was not given her.

This case is different from any other case appealed to this court wherein the validity of the assessment was assailed on account of notice, because in this case there is no property right of the defendant involved. There is no attack upon the ordinance declaring the work necessary, and when Mrs. Mims did not protest within twenty days after the passage of this ordinance she could not stop the proceeding.

The case of Greenwood v. Harris, 31 So. was defective because the ordinance declaring the work necessary did not provide that the cost for the special assessment would be assessed against the property owners. The court found that his ordinance was the one that gave the municipality authority to levy the special assessment and that unless this was given, the property owners would not have a right to protest. In other words if a person was not allowed a hearing at some step in the proceeding they would be deprived of their property without due process of law. Notice was given in the Greenwood case, but it did not bolster up the fact that in the original ordinance it did not state that the property owner was to be assessed with the cost thereof.

But in this case there can be no such contention; the property owner was given notice of the work being declared necessary and she did not protest; neither did she exercise her privilege of doing the work herself within the twenty days after the ordinance becomes operative, then the work can be proceeded with by giving a personal notice, etc.

The defendant in this case had a right to protest and a right to do the work herself under the provisions of the statute, but she now complains, after she sat by, saw the work done, saw the special assessment, and eight years afterward, when the city asks her to pay for the paving, she claims that she was not given an opportunity to do the work herself.

Counsel for appellee says that there was no notice given in the case of Williams v. City of Jackson, 46 So. 55, and the court held in that case that the property owners were not liable. But lets examine the Williams case and see all of the facts surrounding it. The court stated first that the ordinance declaring the work necessary describing the property, material, etc., was a nullity? In other words there was nothing upon which you could predicate to do the work yourself or in default, the city would do it for you. It is true no notice was given in this case, but had notice been given the notice could not rise higher than the ordinances or resolution. The court would have decided it upon the decision in Greenwood v. Harvey, 31 So. 425.

The facts in the instant case are quite different from what they were in the case of Edwards House v. City of Jackson, 51 So. 802. In the City Railway case the city of Jackson sought, by an injunction, to have the railway pave between its tracks which had been left unpaved from 1902 to 1909, although the original ordinance provided for the paving thereof the same as in this case and its companion case. The court below sustained the injunction but on appeal the supreme court dismissed the bill but stating in a dicta opinion that a city had no power to pave a street at the cost of the abutting property until after notification to and refusal by abutting owners to do the paving.

But in considering this opinion the court must bear in mind that here was a street railway company which had been relieved by the city of paving its portion of the street in 1902, and that during all of these years it had remained unpaved and the city comes along and by a mandatory injunction seeks to make the company lay the paving. The court merely said that you can do it, then if it does not, you can lay the paving. This is nothing but fair and equitable. The company might be able to lay this paving cheaper than the city could and as it had been relieved of doing the work when the paving was declared necessary, it ought to have some notice, some method of protecting itself.

But granting for the sake of argument that notice was not served upon Mrs. Deeta Mims to do the work, yet the ordinances declaring the work necessary were regular and legal in every respect and she did not protest against the work being done and thereby waived the right to say that the work should not be done. She was given the privilege under the statute of doing the work herself twenty days after the ordinance became operative and she did not avail herself of the same.

Her husband signed the petition praying for the paving to be laid, but she said that he had no interest in the property, not even a "homestead interest" and I am inclined to believe that she was right in her statement. She states that he did not act as her agent in any way. But she admits petitioning for asphalt; she admits seeing the work going on from day to day; she admits that she did not protest against any of the work being done; she admits that she did not appeal when the special assessment was made; in other words she admits the legality of every step taken by the city except that of giving her time within which to do the work, and the right of the city to release the car line from being paved.

When Mrs. Mims sat by and saw the work being done and did not offer to do the work, she waived her right to do it, she stood in the same shoes as other property owners who had been served with notice and did not do the work. She does not even claim that she had an inclination or desire to do the work herself.

While the court could hardly take judicial knowledge of the fact yet it is a fact, that no property owner attempts to do the...