City of McComb v. Barron
| Citation | 112 So. 875,147 Miss. 465 |
| Decision Date | 09 May 1927 |
| Docket Number | 25891 |
| Court | Mississippi Supreme Court |
| Parties | CITY OF MCCOMB v. BARRON. [*] |
Suggestion of Error Overruled June 6, 1927.
APPEAL from chancery court of Pike county HON. R W. CUTRER, Chancellor.
Suit by the city of McComb against Ernest Barron. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed, and bill dismissed.
Affirmed, and bill dismissed.
J. J. Cassidy, W. F. Jackson and W. B. Mixon, for appellant.
The first attempt of the legislature of Mississippi to adopt a uniform method by which municipalities could make special improvement of streets or sidewalks at the cost of the abutting owners, and cause a lien to be declared on the abutting property where the improvement was made was in the adoption of chapter 93, Code of 1892, entitled "Municipalities." But this chapter applied only to municipalities coming under its provisions. This chapter was re-enacted with a few changes in the Code of 1906 as section 3413, Code of 1906, later amended by the Laws of 1910. Still, cities operating under charter and not under the chapter on Municipalities had no right to invoke these enactments, but had to depend upon the powers granted to them by their charters, which prior to the adoption of the Code of 1892, had to be granted by legislative act.
The legislature of 1912 sought, by amending previous enactments in regard to street and sidewalk construction or special improvement of same, to provide a uniform method by which all municipalities, whether acting under the code provision or under charter, might cause these special improvements to be made, assess the cost thereof to the abutting property owners and have a lien upon the property if such assessment should not be paid.
In the making of this improvement by the city of McComb, as set forth in the bill of complaint, appellant followed the procedure outlined in chapter 260, Laws of 1912, which makes the board of mayor and aldermen of a municipality a special court or tribunal in the matter of controversies concerning these special improvements.
The allegations of this bill show that all acts of the board were done necessary to give it jurisdiction as a court and it is alleged that appellee was notified according to law, and this demurrer admits the allegation.
Under the decisions of this court, how then can he be heard to deny the right of the board to assess his property and have a lien declared thereon for cost of the improvement which he now enjoys? Edwards House Co. v. City of Jackson, 45 So. 14; Dean v. Town of Senatobia, 108 So. 178.
It is our contention that there are only two questions in this case: (1) Was the resolution and its publication, declaring the intention of the board of mayor and selectmen of McComb City, sufficient to give jurisdiction to the city for the making of the improvements on the streets named in the resolution? (2) Was the publication of the notice of the assessment sufficient to give the board jurisdiction of the appellant in the assessment for the improvement of the sidewalks along his property, which had been made at the time of the assessment?
Now, in regard to the first question involved, we have already called the court's attention to the fact that under chapter 260, Laws of 1912, a single individual, residing or not residing upon a street where the improvement of the sidewalks or the paving of the street is contemplated, cannot by his protest stop the improvement in the absence of fraud unless he should constitute a majority of the property holders living on said street.
The law provides that if any property owner whose property has been improved under this procedure shall be dissatisfied with the findings of the board or its failure to cancel or reduce his assessment for such improvement, he may appeal the case to the circuit court of the county in which the property is located. In the case at bar, appellee did not even protest against the making of the improvement, neither did he protest or object to the making of the assessment, which became a final judgment against appellee after the time for an appeal to the circuit court had expired.
If the board of mayor and selectmen of McComb had jurisdiction, and we contend it had, to improve complainant's property by building the sidewalk and by making the assessment for the cost of such improvement, we contend that this is all that is to be decided in this case. All other questions regarding the manner of improvement, kind of material to be used, proper charges in the assessment, etc., should have been taken advantage of by objections made to the board of mayor and selectmen; and in the event such objections were overruled, then by appeal to the circuit court and also an appeal to the supreme court of the state.
This demurrer is simply a collateral attack upon the judgment of a court having a special authority or jurisdiction conferred upon it by the legislature; and in the absence of fraud, if the service of process conformed to the law, so as to make the assessment a judgment, then appellant cannot attack the judgment or assessment in the defense of a proceeding having for its purpose the collection of such assessment for the improvements made upon appellee's property. Bryan v. Greenwood, 73 So. 728; Sparks v. Jackson, 79 So. 67; Union Savings Bank v. City of Jackson, 84 So. 388; City of Jackson v. Buckley, 85 So. 122.
Reporter's Note: The brief of J. W. Cassedy, Jr., and E. G. Williams, for appellee, is missing from the record.
J. J. Cassidy, W. F. Jackson and W. B. Mixon, in reply, for appellant.
The ordinance provides that the improvement shall consist of hard-surfaced, concrete sidewalks. Section 5 of said chapter 260, Laws of 1912, requires that the resolution shall describe the character of special improvements. Appellees in their brief contend that the description just given is insufficient and they cite City of Jackson v. Williams, 46. So. 551, in support of this view. This case was decided under the Code of 1892, section 3011, thereof governing, which provides that the board shall "declare such work r improvement, describing it, necessary." There is a manifest difference between this provision of the Code of 1892 and the Act of 1912. Under the Code of 1892 the resolution was required to describe the improvement. Under the Act of 1912 the resolution is only required to describe the character of the improvement; and we respectfully submit that the provisions of the resolution in the instant case, reciting that the improvement shall consist of hard-surfaced, concrete sidewalks constructed to permanent lines and grades, is a substantial and entirely sufficient compliance with the requirement of the Act of 1912 and that the decision cited does not militate against this view.
If the description of the character of the improvement desired had been insufficient, the defendant could, by following up the notice in this resolution, have discovered to the minutest detail every plan and every purpose which the mayor and board of selectmen had in view with reference to this pavement; and this makes this description doubly sufficient. Edwards House v. City of Jackson, 45 So. at 16.
Argued orally by W. F. Jackson and W. B. Mixon, for appellant, and J. W. Cassedy, Jr., for appellee.
The appellant, the city of McComb, filed its bill in the chancery court of Pike county, seeking to recover one hundred sixty-four dollars and thirty-two cents, alleged to be due it by virtue of an assessment of that amount against a lot owned by the appellee, Barron, for the construction of a special improvement, to-wit, a sidewalk. The original bill was based on a statement of the amount of the assessment without setting out the resolution of the board of supervisors levying the assessment against the property owners of the city. To this bill a demurrer was filed, which was by the court sustained, and we apprehend for the reason that none of the resolutions of the city council were attached as exhibits to the bill. Thereupon the city did not rely upon its original bill, but filed an amended bill in which it set out what occurred, particularly the proceedings of the board, and...
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