City of McComb v. Flowers

• Decision Date: 13 January 1930
• Docket Number: 28155
• Court: Mississippi Supreme Court
• Parties: CITY OF MCCOMB v. FLOWERS

125 So. 565

156 Miss. 87

CITY OF MCCOMB v. FLOWERS

No. 28155

Supreme Court of Mississippi

January 13, 1930

Division A

APPEAL from chancery court of Pike county HON. R. W. CUTRER Chancellor.

Action by the city of McComb against E. E. Flowers. From a decree dismissing the bill, plaintiff appeals. Reversed and remanded.

Decree reversed, demurrer overruled.

W. B Mixon, of McComb and F. J. Lotterhos, of Jackson, for appellant.

In a bill by a city to collect for special improvements it was not necessary for the city to exhibit copies of the resolution ordinances, etc.

Griffith, Miss. Chancery Practice, sec. 107; Elliot on Roads and Streets (4 Ed.), sec. 760; Carney v. Kirby, 12 Ohio Dec. 744, 1 Disn. 479; Heman v. Payne, 27 Mo.App. 481; Kansas City v. Porter, 71 Mo.App. 315; Elmdorf v. San Antonio (Tex.), 223 S.W. 631; City of Waterbury v. Schmitz (Conn.), 20 A. 606; City of Parkersburg v. Tavenner (W. Va.), 26 S.E. 179; Abbot v. Bowen (W. Va.), 126 S.E. 585; Leeds v. De Frees (Ind.), 61 N.E. 930; Cain School Tp. v. Snyder (Ind.), 126 N.E. 686; Town of Elma v. Carney (Wash.), 30 P. 732.

It is well settled that a person may waive a rule of law or a statute, or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right and no considerations of public policy or morals are involved, and, having once done so, he cannot subsequently invoke its protection. Accordingly, an omission to give notice of assessment proceedings may be waived.

25 R. C. L. 167; Corry v. Gaynor, 22 Ohio St. 584; Close v. Twibell (Ind.), 92 N.E. 377; Barlow v. City of Tacoma (Wash.), 40 P. 382; Eddy v. Omaha (Nebr.), 101 N.W. 25.

Failure to protest or appeal is a waiver.

Tone v. Columbus, 39 Ohio St. 281; Corry v. Gaynor, 22 Ohio St. 584: Edwards House v. Jackson, 91 Miss. 429, 45 So. 14; Bryan v. Greenwood, 112 Miss. 718, 73 So. 728; Sparks v. Jackson, 118 Miss. 502, 79 So. 67; City of Jackson v. Buckley, 123 Miss. 56, 85 So. 122; Dean v. Senatobia, 142 Miss. 815, 108 So. 178; McClure v. Natchez, 151 Miss. 718, 118 So. 616; Moore v. Duck Hill, 151 Miss. 840, 119 So. 324; Birmingham v. Wills (Ala.), 59 So. 173; Woodlawn v. Durham, 162 Ala. 565, 50 So. 356; Anderson v. Ocala (Fla.), 64 So. 775; Stewart v. Wyandotte County, 45 Kan. 708; Cross v. City of Kansas, 90 Mo. 13; Liebstein v. Newark, 24 N.J.Eq. 200; Newhaven v. Railroad Co., 38 Conn. 422.

A property owner who agrees in writing to pay his proportion of the assessment for an improvement, cannot set up irregularities in the levy of the assessment to defeat its collection.

McQuilian on Municipal Corporation, sec. 2119; Jackson v. Kenny, 122 Miss. 594, 84 So. 689; Moore v. Duck Hill, 151 Miss. 840, 119 So. 324; Richcreek v. Mooreman (Ind.), 42 N.E. 942; Padgett v. Lewis (Fla.), 45 So. 29; Hyer v. New York Manf. Co. (Fla.), 50 So. 485; Franklin Phosphate Co. v. International Harvester Co. (Fla.), 57 So. 206; Roess Lumber Co. v. Bank (Fla.), 67 So. 188; Dunkirk Land Co. v. Zehner (Ind.), 74 N.E. 1099; Floyd v. Atlanta Banking Co. (Ga.), 35 S.E. 172.

The appellee is liable on his note, which rests upon a legal consideration.

25 R. C. L. 100; Boone v. Boone, 58 Miss. 820; Swanson v. Griffin, 68 Miss. 322, 8 So. 511; Edwards Hotel v. Jackson, 96 Miss. 547, 51 So. 802; Dunkirk Land Co. v. Zehner (Ind.), 74 N.E. 1099; McCormick Co. v. Yoeman (Ind.), 59 N.E. 1069; Floyd v. Atlanta Banking Co. (Ga.), 35 S.E. 172; Birmingham v. Wills (Ala.), 59 So. 173; Edson v. Poppe (S. Dak.), 124 N.W. 441; Drake v. Bell, 55 N.Y.S. 945; Glenn v. Savage (Ore.), 13 P. 442; Booth v. Fitzpatrick, 36 Vt. 681; Sutch's Estate, 201 Pa. 305; Olsen v. Hagen (Wash.), 172 P. 1173; Holland v. Martinson (Kan.), 237 P. 902; Spencer v. Potter's Estate (Vt.), 80 A. 821; State v. Funk (Ore.), 209 P. 113; Williston on Contracts, section 150.

E. G. Williams, of McComb and J. W. Cassedy, Jr., of Brookhaven, for appellee.

It is well settled that the supreme court will not take judicial knowledge of municipal ordinances.

Kyle v. Town of Calhoun, 123 Miss. 542; Spears v. Town of Osyka, 92 Miss. 790; Naul v. McComb City, 70 Miss. 699.

It is necessary for a copy of the ordinances or resolutions to be set forth as passed and adopted in order to show a strict compliance with the charter powers, and for the further reason that the court does not take judicial knowledge of municipal ordinances.

44 C. J. 848; City of McComb v. Barron, 147 Miss. 465, 112 So. 875; Jackson v. Kenny et al., 122 Miss. 594, 84 So. 689.

There was no consideration for the note sued on.

City Street Improvement Co v. Pearson, 181 Cal. 640, 185 P. 962, 20 A.L.R. 1317; Com. v. Adams, 114 Mass. 323, 19 Am. Rep. 362; People v. Pearne, 118 Cal. 158, 50 P. 376; Hatch v. Hanson, 46 Mo.App. 323.

OPINION

Smith, C. J.

This is a suit by the appellant for the collection of the cost of a sidewalk constructed by it along certain property owned by the appellee on a street in the city of McComb. A demurrer to the bill was sustained and the bill was dismissed. The ground of the demurrer here relied on by the appellee is that the bill of complaint does not set forth the ordinances and resolutions passed, and other things done by the appellant in the process of constructing this sidewalk.

The bill alleges, in substance, that the appellant, in accordance with an amendment to its charter, "created a special improvement and assessment district in said city, including the street on which the defendant's said property (previously described in the bill) adjoins and abuts, for the construction of concrete sidewalks in front of and adjoining the said property of the defendant, and the property of other landowners on said street, and other streets in said district," and provided that the costs thereof be assessed and charged against the abutting property and the owners of land adjoining and abutting on the street, for the payment of which a special tax would be levied on the property, "all of which appears by the minutes of the board of mayor and selectmen of said municipality;" and thereafter the city constructed the sidewalk at a cost to the appellee of one hundred seventy-five dollars and twenty-five cents, against which no protest of any character was made by the appellee, but, on the contrary, he executed and delivered to the appellant a promissory note by which he agreed to pay the amount assessed against his property in ten annual, equal installments, and containing the following recital: "This note is given in recognition of the right of the city of McComb City to enforce the payment of the sum hereby promised and secured by lien on account of special improvement or sidewalk assessment on the following described property situated on Missouri Ave., Street, Avenue, in said city of McComb City, Mississippi;--Square 30, Lot 5, which lien is hereby recognized, and the legality of the assessment admitted."

An amendment to the appellant's charter provides, in effect, that it may construct sidewalks and charge the cost thereof to the owners of property abutting thereon, and that, "The said city shall have a lien upon said property for the payment of said installments, and if default should be made in the payment of any one of said installments, shall have the same rights against said property for the enforcement of other taxes against the same."

The allegations of the bill are sufficient to show that the court below had jurisdiction of the suit, and a more particular reference therein, if such was necessary in any state of case, to the particular ordinances and resolutions under which the city claimed the right to recover, could only be for the purpose of advising the appellee of the existence thereof. Any necessity therefor here disappears for the reason that the appellee, himself, has solemnly admitted in writing that the appellant did everything necessary to impose on him liability for the...