City of Jackson v. Tucker

• Decision Date: 17 November 1924
• Docket Number: 24394
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON v. TUCKER. [*]

101 So. 708

136 Miss. 787

CITY OF JACKSON v. TUCKER. ^[*]

No. 24394

Supreme Court of Mississippi

November 17, 1924

Division A

1. MUNICIPAL CORPORATIONS. Special improvement statute must be strictly pursued.

A municipality proceeding under chapter 260, Laws of 1912 Hemingway's Code, sections 5941 and 5965, inclusive, to charge abutting property owners with the cost of special improvements, must pursue the statute with strictness; all conditions precedent to the exercise of the power must be strictly followed.

2. MUNICIPAL CORPORATIONS. Substantial departure from, statute requiring publication of resolution of necessity of improvement and notice of assessment invalidates proceedings. The publication of the resolution declaring the necessity of the proposed special improvement containing the description of the same as required by section 6 of the act Hemingway's Code, section 5946, and the publication of the notice of the assessment of the abutting property with the cost of such improvement as required by section 20 of the act, Hemingway's Code, section 5960, are jurisdictional and a substantial departure from the statute in that respect will render the proceedings void.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by the city of Jackson against J. W. Tucker. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

W. E. Morse, for appellant.

Section 5965, Hemingway's Code or section 25, chapter 260, Laws 1912, reads: "No personal judgment shall be rendered against either a resident or non-resident owner, but the extent of the judgment shall only be to condemn the property improved to be sold for the purpose of paying the tax assessed against it." This law is different from sections 3411, 3412, 3413 of the Code of 1906. A personal judgment could be taken against the property owners under the old law while under the Law of 1912 this was impossible. This case is, therefore, essentially different from the case of City of Jackson v. Kenny, 84 So. 689, in the following particulars, to-wit: 1. The Kenny case is a proceeding seeking to enforce a lien claimed by the city upon which no assessment had ever been made. 2. In the Kenny case there was no order directing the street commissioner to perform the work. 3. The Kenny case was a proceeding under sections 3411, 3412, 3413 of the Code of 1906, while this proceeding is one under chapter 260 of the Laws of 1912. 4. Section 3412, Code of 1906, required that after the improvement has been made that the street commissioner report the cost of the improvement to the board at its next regular meeting thereafter, for assessment; while section 5955, Hemingway's Code, provides for the report to be made at the next regular meeting or any subsequent regular or special meeting. 5. In the Kenny case it was not shown that the city actually did lay the walk, while in the instant case it is agreed that the city actually made the improvement.

The rule is that courts can only interfere with the matter of local improvements and special assessments in cases of fraud or oppression or some such wrong as constitutes a plain abuse of discretion on the part of local authorities. Macon v. Patty, 67 Miss. 378; Nugent v. Jackson, 72. Miss. 1040; Jackson v. Buckley, 85 So. 122.

Chapter 260, Laws of 1912, does not specify any particular time when the assessment must be made. Just as soon as the Engineering Department called this matter to the attention of the assessing authority, the assessment was made. The general rule seems to be that where the statute does not restrict the assessing board by any positive rule as to the time of making the assessment it has been held to be within the discretion of the board to decide conclusively when the assessment should be made. 29 Cyc. 1219.

The other point that we wish to present to this court is that J. W. Tucker could not be an innocent purchaser of this land without notice so as to relieve this property of this lien. The minutes of the city of Jackson are public document and as such are subject to inspection, and it is the duty of any one who is purchasing land or property in the city of Jackson, to investigate the city records and see whether or not the city holds any liens against the property. To hold otherwise would be to allow any person who bought property in the city to claim that they were innocent purchasers of value without notice of any lien held by the city of Jackson. The supreme court of our state in passing upon the subject of notice, or what is sufficient to give notice, lays down this rule: "Whatever is sufficient to excite attention or put the party on inquiry is notice of everything to which such attention, or inquiry might reasonably lead." Parker v. Foy, 43 Miss. 260; Gill v. Moore, 76 So. 453.

Flowers & Brown, for appellee.

This record presents two questions for consideration by the court and a concurrence with our views on either of them will result in an affirmance of the judgment of the trial court. They are: 1. The special tax levied on the property now owned by appellee is void because no notice was given the owners of property abutting on the proposed curb and gutter of the intention of the council of the city of Jackson to levy a special tax on abutting property to defray the cost of constructing such curb and gutter. 2. If such notice had been given the owners of abutting property the special tax could not be enforced against appellee because he became a purchaser of the property in question for value before the special tax was actually levied by the council of the city of Jackson, but long after the time when it should have been levied, without notice of the proceeding looking to the fixing of the tax.

Section 4 of the resolution passed by the council of the city of Jackson declaring a sidewalk, curb and gutter along the property now owned by appellee necessary is as follows: "That it is the intention of the council of the city of Jackson to levy a special tax on the property abutting on the said part of the said street to defray the cost of constructing said sidewalk."

Great authority has been given cities and towns by the legislature in the matter of special improvement but since the authority is purely statutory, and in derogation of the common law, the statute giving the power must be strictly followed. In this instance the city of Jackson proceeded under chapter 260 of the Laws of 1912. Section 6 of that chapter, section 5946, Hemingway's Code, requires that the resolution declaring the improvement necessary shall be published in some newspaper published in the municipality once a week for three successive weeks. Now the resolution as passed did not declare the construction of curb adjoining the property now owned by appellee necessary. It declared the construction of gutters necessary and recited that curb had already been constructed. The resolution as published declared the construction of curb and gutter and sidewalk necessary, but the resolution as recorded and published failed to give notice that it was the intention of the council to levy a special tax to defray the cost of constructing curb and gutter. It gave notice that the council would levy a special tax on abutting property to defray the cost of constructing the sidewalk but made no mention of curb and gutter. As was held in the case of City of Jackson v. Williams, 92 Miss. 301, 46 So. 551, since the municipality, in proceeding under a statute providing for public improvements, is acting under special circumstances, it must pursue with strictness all the conditions precedent to its right to exercise the power, and a substantial compliance with the conditions constitutes its power to act, and is jurisdictional.

Notice to property owners that a special tax will be levied on their property to defray the cost of making special improvements is the most essential thing in the entire proceeding. It is a precedent condition to the right of the municipality to levy the special tax. Such notice must be given the property owners in order to confer jurisdiction on the municipality to levy the tax. The recital in section 4 of the resolution here, as recorded and published, to the effect that the council of the city of Jackson intended to levy a special tax to defray the cost of constructing the sidewalk was tantamount to a recital that no special tax would be levied to defray the cost of constructing curb and gutter.

We, therefore, say that the ordinance passed by the city of Jackson on January 16, 1923, levying a special tax on the property of appellee and others to defray the cost of constructing adjoining curb and gutter was void because proper notice was not theretofore given that it was the intention of the council to defray such cost by levying a special tax on abutting property. The city of Jackson was without jurisdiction to make the levy. It failed to comply with the statutes conferring the power.

The second question is settled by the case of Jackson v Kenny, 122 Miss. 594, 84...