City of Jackson v. Doxey

• Decision Date: 17 April 1922
• Docket Number: 22521
• Citation: 91 So. 348,128 Miss. 618
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON v. DOXEY et al

91 So. 348

128 Miss. 618

CITY OF JACKSON v. DOXEY et al

No. 22521

Supreme Court of Mississippi

April 17, 1922

MUNICIPAL CORPORATIONS. Rule as to assessment of property where work had commenced prior to statute providing for assessment of abutting owners for cost thereof.

A municipality which had commenced to pave its streets prior to the enactment of section 4 chapter 260, Laws 1912 (section 5944, Hemingway's Code), and to pay therefor by assessing a proportionate part of the cost thereof against the abutting property owners, must continue as long as the provision of the statute so requiring remains in force to assess the cost of street paving thereafter done against the abutting property owners in the same proportion that such owners were assessed on the streets paved prior to the enactment of the statute.

HON. V J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Action by T. B. Doxey and others against the city of Jackson. From decree overruling a demurrer to the bill, the defendant appeals. Affirmed, and remanded with leave to defendant to answer.

Affirmed and remanded.

W. E Morse, for appellee.

In the first place, the city of Jackson never did adopt a method for the assessing of special improvements. It is true that the special improvements made from 1906 up to and including 1913 were made on the basis of two-thirds of cost being assessed to the property-owners and one-third being assessed to the city of Jackson. But this was a mere matter of discretion with the city. It was at a time when the city had more money to expend on public improvements than it has at the present time. The city assessed the street car line with the entire part of its street car area and for two feet on either side. This shows that the city had not and was not assessing all of its property-owners on a basis of two-thirds the cost to them and one-third to itself. This was thirteen years ago, before the city was operating under its present commission form of government.

The section complained of with reference to this particular point reads as follows: "But the method adopted by the mayor and board of aldermen for the payment of special improvements must be the same on all streets of the municipality."

Up to this time the city had the discretion as to whether they would grant extension of ten years for the payment of the indebtedness to the property owner, or they could call on him to pay the entire amount at once. Manifestly, this would work a great hardship and would allow the city to take an unfair advantage of certain property-owners in the event they so desired. This piece of legislation was put in there for the purpose of preventing a municipality from punishing certain property-owners and allowing others to receive the benefit of deferred payments.

The section continues, "and in case any municipality has already commenced any particular kind of special improvement the municipality must continue to assess the cost on all owners of the property in the municipality in the same way that the assessment was made before the passage of this act, to the end that all persons may be compelled to pay for the same character of special improvements on an equal basis provided the provisions of this act shall not apply to property owned by the state." This is a saving clause saving special improvements under construction under sections 3411 and 3412 of the Code of 1906, so that the improvements might be continued under this new law.

It expressly states that in case any multiplicity has already commenced any particularly kind of special improvement, the municipality must continue to assess the cost on all the owners of property. This section applies to work which was commenced. It also shows that it was meant to cover only one street at a time. In other words, the section applies to street by street and not to the whole municipality. The correct interpretation of that section should be that in case any municipality has already commenced any particular kind of special improvement the municipality must continue to assess the cost on all owners of property on that street in the same way that assessment was made before the passage of this act. It would be manifestly unfair to assess the cost on all the property-owners in the municipality for that special improvement for the reason that they would not receive the benefit, but it should be limited to that street. It further provides that the assessment on these streets should be in the same way that the assessment was made before the passage of this act. This is the whole intent and purpose of the legislature in inserting this clause therein.

The court can readily see that this is a fair and reasonable interpretation of this section. In fact, the city of Greenwood and the courts there consider that this section applies to street by street. The parties are not in the same position, their rights would not be equal on different streets. One street is used by the public generally and one used very little except by the resident owners of the street. Some streets are so narrow that the entire cost of this street would be less than one-third the cost of a street such as North State street or Capitol street. In fact, Minerva is a street of about thirty feet and if the property-owners were to pay for the entire amount it would be less than having to pay one-third on North State street.

The court will understand that when we say pay for the entire amount that it means that each side would pay one-half. There is really only a difference of one-sixth which the property-owner has to pay in the case over what he had to pay under the old arrangement. Under the old arrangement the city never did adopt a method. There was no ordinance passed prescribing the method. There was a custom followed, but that custom has not been followed entirely as in the instance of the street cars.

The municipalities are growing; they have not sufficient finances to carry on the special improvements asked for by the property-owners. The property-owners by a majority of the residents on the street petitioned for the special improvement. They were notified both orally and by the notice declaring the work necessary that they would be required to pay for all the special improvements. They did not file a sufficient protest, and then when the city begins work they ask for an injunction restraining the city from completion of its work.

The hands of the municipality are tied by this statute and by the economic conditions, if the interpretation which is placed on the same by appellees should be upheld in this court. We do not think that this method is right. We think that the section applies solely and only to each street as outlined above.

We think that the ordinance is valid and binding and that the municipality had a right to assess these property-owners with one-half of the cost, which is only a fraction more than was under the other method. The statute shows on its face that it applied only to one street at a time and not to the whole municipality. It showed that it applied to the method of payment and not to the method of assessing.

Green & Green, Amici Curiae.

To construe section 5944 as did the chancellor, would be judicial legislation and to repeal the municipal powers vouchsafed in every other section of this law.

Note further section 5951. After there has been notice published and it has been determined to go ahead with the improvement, then the board shall have full power to cause the special improvements, thus vesting in the municipality expressly, the power to levy the tax to pay for the improvement. This does not mean to pay for a part of the improvement; has no reference to the method of payment, or as to the method of making the assessment, but is a direct and positive authorization, to pay for the improvements, with special assessments of taxes. We cannot conceive how the power so to do could be made in any manner broader, or how the right of the municipality could be in any wise further expanded.

Now, by section 5953, the property-owner shall have the right to make the special improvement himself. This does not have reference to making a part of a special improvement, but all of it, and when there has been a failure, then and not until then the mayor and board of aldermen shall cause all special improvements to be made in the manner hereinafter required and the cost of the work shall be assessed against the owner as hereinafter directed. Now, this is but a reiteration of the proposition heretofore advanced, and not the phraseology, as hereinafter directed. Section 5944, upon which reliance is placed, precedes, and hence, cannot qualify, or control the declaration here made which, under section 5956 and 5958, make it absolutely requisite that there should be an assessment embracing the entire cost, not a part of it, and this entire cost of the total improvements is that which, under these two sections, upon failure by the property-holder to do the work, is to be assessed. The declaration, as hereinafter directed, precludes any integration of the alleged limitation of section 5944 from circumscribing sections 5956 and 5958, and we direct particular attention to the fact that this provision, as hereinafter directed, was re-enacted by the legislature in 1914, chapter 211, and therefore constitutes the latest legislative declaration as to the allocation of cost arising from the assessment, being re-enacted two years after the passage of section 5944, and therefore constituting the latest legislative declaration, we have the provisions that the mayor and board of aldermen shall cause all special improvements to be made in the manner hereinafter required and...