City of Lexington v. Wilson's Estate

• Decision Date: 20 November 1933
• Docket Number: 30615
• Citation: City of Lexington v. Wilson's Estate, 151 So. 164, 170 Miss. 282 (Miss. 1933)
• Parties: CITY OF LEXINGTON v. WILSON'S ESTATE
• Court: Mississippi Supreme Court

151 So. 164

170 Miss. 282

CITY OF LEXINGTON v. WILSON'S ESTATE

No. 30615

Supreme Court of Mississippi

November 20, 1933

Division A

1 JUDGMENT.

Judgment that assessment was nullity because board of mayor and aldermen were not legally constituted when assessment was made, held not res judicata in subsequent proceeding wherein property owner claimed reassessment was void because board did not declare cost of project (Code 1930, section 2565).

2.APPEAL AND ERROR.

Where appeal from reassessment by city's governing authority to circuit court was in compliance with statutes then in effect circuit court did not lose jurisdiction to hear appeal because law respecting appeal was changed before appeal was heard (Laws 1924, chapter 194, section 6;Code 1930, sections 4,2563).

3.MUNICIPAL CORPORATIONS.

Statute providing that irregularity of proceeding shall not invalidate assessment, does not apply when taxpayer has prosecuted appeal from assessment, and not until assessment has become final (Code 1930, section 2567).

4.MUNICIPAL CORPORATIONS.

Reassessment for street improvement held invalid where governing authority did not determine cost and declare cost by resolution (Laws 1924, chapter 194, section 6).

5 JUDGMENT.

Objections made to entire record prior to chancery decree validating bonds for street improvement, held concluded by validation decree (Laws 1924, chapter 194, sections 13--18;Code 1930 section 312 et seq.).

6.MUNICIPAL CORPORATIONS.

Statute authorizing reassessment for improvement where assessment is invalid, is curative of every defect in record precedent to attempt to levy assessment (Code 1930, section 2565).

7.MUNICIPAL CORPORATIONS.

Legislature may dispense with precedent resolutions and permit municipality's governing authority to improve streets and charge costs to abutting owners without notice anterior to date of assessment (Code 1930, section 2565).

8.CONSTITUTIONAL LAW.

Due process of law is complied with if notice of assessment for improvement is given to property owner, without notice of prior proceedings (Code 1930, section 2565).

9.MUNICIPAL CORPORATIONS.

Reassessment for improvement is an independent proceeding (Code 1930, section 2565).

10.MUNICIPAL CORPORATIONS.

Under statute authorizing reassessment where assessment for improvement is invalid, de novo proceeding is not necessary (Code 1930, section 2565).

11.MUNICIPAL CORPORATIONS.

Statute authorizing reassessment where assessment is invalid authorizes municipality, where contract has been completed, to continue to undertake to levy assessments on notice until assessment is accomplished (Code 1930, section 2565).

12.MUNICIPAL CORPORATIONS.

Reassessment for improvement must conform to statute authorizing reassessment (Code 1930, section 2565).

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Holmes countyHON. S. F. DAVIS, Judge.

The City of Lexington made an assessment against the property of the estate of G. A. Wilson, deceased, to which an objection was made, and from a judgment declaring the assessment void, the city appeals.Affirmed.

Affirmed.

Ruff, Johnson & White, of Lexington, and Green, Green Jackson, of Jackson, for appellant.

The municipality had the right to change its method of paying for public improvements.

Stingley v. Jackson, Central Cotton Oil Co. v. Jackson,140 Miss. 19, 104 So. 465.

The issuance of bonds did not preclude special assessment.

Edwards House Co. v. Jackson, 91 Miss. 429, 45 So. 14;Gully v. International Co.,145 So. 905;White v. Miller, 160 Miss. 734, 133 So. 146.

Undisposed of appeals are no bar to re-assessment.

Phipps v. Medford, 156 P. 787;Chester v. Black,6 L. R. A. 804.

No appeal is requisite from a void judgment.

Pascagoula v. Krebs, 118 So. 290, 151 Miss. 676;Paepcke-Leight Lbr. Co. v. Savage,101 So. 711, 136 Miss. 742;Theobald v. Deslonde,93 Miss. 214;34 C. J. 514, 518;Tabler v. Mitchell, 62 Miss. 437.

The re-assessment was authorized and validly executed by section 2565.

Section 2565, Code of 1930.

The re-assessment is valid.

Barron v. McComb, 141 So. 766;Seattle v. Kelleher,195 U.S. 359, 49 L.Ed. 235;Schneider Granite Co. v. Gast Realty, etc., Co.,245 U.S. 291, 62 L.Ed. 295;Phipps v. City of Medford,156 P. 787, 158 P. 668;Hall v. Fairchild, etc., Co.,227 P. 656;Brown v. City of Silverton,190 P. 975;Olson v. City of Watertown,232 N.W. 290;Clark v. Pearson & Co.,26 S.W.2d 387;Lord v. City of Salem,282 F. 721;Booth v. Uvalde Rock Asphalt Co.,296 S.W. 345;Anderson v. Ocala,91 So. 187;Davis v. City of Clearwater,139 So. 825;44 C. J. 768;25 R. C. L., section 85, Municipal Corporations;Section 4, chapter 194, Laws of 1924;Section 2565, Code of 1930;Frederick v. City of Seattle,13 Wash. 428, 43 P. 384;Marqueze v. Caldwell,48 Miss. 31;Cowart v. Union Paving Co.,14 P.2d 766, 83 A. L. R. 1185;Kvello v. City of Lisbon,164 N.W. 305;Hochfeld v. City of Portland, 192 P. 911;Gardner v. City of Portland,187 P. 307;Kansas City v. Silver,74 Kan. 851, 85 P. 805;Sanderson v. Herman,108 Wis. 662, 84 N.W. 890, 85 N.W. 141;State ex rel. v. D. C. Ramsey County,97 Minn. 147, 106 N.W. 306;State ex rel. v. Dist. Court,95 Minn. 183, 103 N.W. 881;Winnetka v. Taylor,133 N.E. 656;Megary v. Town of Woodland,269 P. 829;Reliance Automobile, etc., Co. v. Jackson,221 N.W. 291;4 Dillon Mun. Corp.(5 Ed.), page 2635;5 McQuillin Mun. Corp. (2 Ed.), page 604, sec. 2173;Browning v. Hooper,269 U.S. 404, 70 L.Ed. 334;Powers v. Penny,59 Miss. 8;Memphis & Charleston R. Co. v. Bullen,121 So. 826, 154 Miss. 536, 282 U.S. 241, 75 L.Ed. 315;Sykes v. Columbus,55 Miss. 144;25 R. C. L. 790, sec. 37;Prospere v. New Port Richey, 124 So. 2.

Presumption created by section 9 of the Act, section 2567, Code of 1930, is operative to rectify.

Sections 1578,1579, Code of 1930;Hardie v. Chrisman,60 Miss. 671;Wheeler & Wilson Mfg. Co. v. Ligon,62 Miss. 560;Alvis v. Hicks,116 So. 612, 150 Miss. 306;McClure v. Natchez,118 So. 617, 151 Miss. 718;Bryan v. Greenwood,112 Miss. 718, 73 So. 728;Edwards House Co. v. Jackson, 91 Miss. 429, 45 So. 14;Kvello v. City of Lisbon, 164 N.W. 305.

A stranger to the contract, where work completed, may not complain.

Blanton v. Wallins, 291 S.W. 372;Larned v. Maloney,49 N.E. 278;Vinton v. James,140 N.E. 912;Alvis v. Allen,99 S.E. 188;Russell v. Whitt, 170 S.W. 609.

Ordinances adopted furnish adequate data for the work.

Langstaff v. Durant, 72 So. 236, 111 Miss. 818;McComb v. Barron,112 So. 875, 147 Miss. 465.

Advertisement for the contract was valid.

Koontz v. Greenville, 161 Ia. 167.

One cannot both rely upon a statute and assail it.

Frost v. Corporation Co., 278 U.S. 531, 73 L.Ed. 472;Leonard v. Vicksburg, etc., R. Co.,198 U.S. 416.

Where executive officers act, they need not set up the evidence upon which such action was taken.

J. Morgan Stevens, of Jackson, A. M. Pepper and Boothe & Pepper, all of Lexington, for appellee.

We take it it goes without argument or serious controversy that the second assessment, while the first was standing but appealed from by property owners, is and was void, for the reason the mayor and board of aldermen by supersedeas bonds were prevented from taking any further steps to enforce the assessments appealed from.

The appeals were not taken in accordance with their interpretation of the law of 1930, which have no bearing in this case or in the former case, the first appeals having been taken in 1927 and the second in 1929, and were taken in strict accordance with the last paragraph of section 6, chapter 194, Laws of 1924.

Section 81, Code of 1906.

The appeal in this case was perfected on the 15th day of July, 1929, when the Code of 1930 did not become effective until the first day of November, 1930, a year and several months after the appeal bond was filed and approved.

Section 4, Mississippi Code of 1930, expressly provides that the repeal of any statutory provisions by the present code shall not affect any act done or any cause of action or any suit or proceeding had or commenced in any civil case previous to the time when such repeal shall take place.

It is a well known statutory rule of construction that statutes operate prospectively and not retroactively.

Sections 4and62, Code of 1930;Franklin v. Neill,146 Miss. 157, 110 So. 368;Harrington v. Y. & M. V. R. R. Co.,145 Miss. 887, 110 So. 444;Faison v. City of Indianola,127 So. 558;Section 2565, Code of 1930;Building & Loan Association of Jackson v. Woodward, 131 So. 874.

It is needless to direct the attention of the court to the well known rule of construction that the right of the city to make any assessment at all is purely statutory, and that the statutes conferring power must be strictly construed in favor of the property owner.

City of Jackson v. Tucker, 136 Miss. 787;City of Jackson v. Williams, 92 Miss. 301, 46 So. 551.

There is nothing in the old or the new record to show that the property owner was ever given full information as to the definite character of the street paving or the gutters or drains in Yazoo street.There was no description of the exact material to be used or what kind of curb and gutters should be laid or what kind of drains or how much material or otherwise.

City of McComb v. Barron, 147 Miss. 465.

The whole proceedings here were void.

City of Jackson v. Hart, 117 Miss. 871, 78 So. 780;City of Jackson v. Greaves, 134 Miss. 63.

If the original paving ordinance is void, then the whole proceedings must go down.There could be no legal assessment or reassessment.Here the city in attempting to make the assessment made no effort to reenact a paving ordinance or to start the...