City of Pascagoula v. Valverde

• Decision Date: 09 March 1925
• Docket Number: 24718
• Citation: 103 So. 198,138 Miss. 399
• Court: Mississippi Supreme Court
• Parties: CITY OF PASCAGOULA v. VALVERDE et al. [*]

103 So. 198

138 Miss. 399

CITY OF PASCAGOULA v. VALVERDE et al. ^[*]

No. 24718

Supreme Court of Mississippi

March 9, 1925

Division B

MUNICIPAL CORPORATIONS. Lien for special improvement assessment paramount to prior lien in favor of county for school funds.

Under sections 4150 and 4151, Code of 1892, authorizing counties to lend their sixteenth section funds upon real estate security and section 17, chapter 260, Laws 1912; section 5957 Hemingway's Code (a section of the special improvement statute for municipalities), providing that the assessments for special improvements under the latter statute against the abutting property shall be a lien on such property paramount to all other liens, state and county taxes excepted, held that the lien given by the latter statute is paramount to a lien in favor of the county for sixteenth section funds under the former statute, even though the lien under the latter is prior in date to the lien under the former.

HON. V A. GRIFFITH, Chancellor.

APPEAL from chancery court of Jackson county, HON V. A. GRIFFITH, Chancellor.

Suit by the city of Pascagoula against M. L. Valverde and others. From decree holding that another lien upon property involved was paramount to that of plaintiff, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

H. B. Everitt, for appellant.

I. This property is not exempt from general taxation for general revenue because the lien thereon created by the deed of trust of the appellee is in law a lien only and is not ownership of the property and hence same does not come under the exemption from such taxation as property owned by the state or property belonging to any college or institution for the education of youths or property occupied by public schools or under any other express exemption of the state tax statute. Section 2779, Code of 1906; Section 2283, Hemingway's Code; Buck v. Paine & Baines, 52 Miss. 271; Carpenter v. Bowen, 42 Miss. 28; Buckley v. Daly, 45 Miss. 338; Freeman v. Cunningham, 57 Miss. 6; Adams v. Mfg. Co., 87 Miss. 263; Glover v. United States, 164 U.S. 294, 17 S.C. 95.

II. The property in controversy was not exempt or excepted from the operation of chapter 260, Laws of 1912, charging abutting property with the cost of municipal street improvement as property "owned by the state," for the same reasons above assigned and on the same authority cited on the foregoing proposition as to exemption from state tax generally or property "owned by the state."

III. The express exemption of property from general taxation as property belonging to colleges or the institutions for the education of youths of property occupied by trustees of public schools is a class of property so expressly exempt as to such taxes but as to which there is no exemption or exclusion provided by this statute for street improvements and hence the application of the rule of construction "expressio unius est exclusio alterius."

IV. In the absence of such statutory exemption of the property from the general or special taxation as here claimed, the claim that this chattel interest by way of security of this school fund should, on grounds of public policy, be excepted by implication from the application of this statute declaring a lien for the cost of this improvement to be "paramount to all other liens, state and county taxes alone excepted" is without merit, analogy or precedent. Grenada v. Grenada County, 115 Miss. 831; Union Savings Bank v. Jackson, 122 Miss. 557; New Jersey Prov. Inst. Co. v. Mayor, 113 U.S. 506, 5 S.C. 612; Board of Commissioners v. Ottawa, 49 Kan. 747, 33 Am. St. Rep. 396; I. C. R. R. Co. v. City of Decatur, 147 U.S. 190, 13 S.C. 93; Adams v. Quincy, 130 Ill. 566, 6 L. R. A. 155; White v. People, 94 Ill. 604.

Denny & Heidelberg, for appellees.

Counsel for appellant says that property belonging to the United States, the state, a county, municipality, institutions of learning, charity and religion, are exempt from taxation for general revenue, because rendered exempt by the sovereign state; and that because of such exemption from taxation for general revenue purposes, it does not follow, by implication, that such bodies are thereby and also exempt from assessments for street improvements. And thereupon counsel inquires: "But can it be consistently claimed that under any of these provisions the property of the citizen in this case was exempt from general taxation either as property owned by the state or the trustees of schools or school lands of the respective townships for use of public schools? Did this particular land fall into the class of property exempt from taxation and the prior lien for taxes due thereon, the moment it was conveyed to a trustee to secure a loan of one thousand dollars of sixteenth section school funds?"

There is no contention of appellee that where certain land is, by statute, exempt from taxation for general revenue purposes it thereby becomes exempt from assessment for street improvement. That matter bears no relation whatever to the issue here involved, and it does not, in the remotest degree, form a basis of the claim of priority of its lien interposed by appellee, and set forth and established by the pleadings and record here. The single question of the priority of the lien of appellee over that of appellant is here submitted for determination, and such is all that is so submitted.

In behalf of appellee, it is submitted that the decree of the chancery court in this cause overruling the demurrer of appellant and holding that the lien of appellee on the property of M. L. Valverde, described in the trust-deed, is paramount and superior to that of appellant for street paving costs, is sound, proper and valid, and should be affirmed, because the city had no lien for such street improvement costs, except such as is given by the statute; because the statute under which said improvement was made and expense incurred does not give priority of the lien granted municipalities on property of the state; because the city could acquire no priority of its lien over the pre-existing lien of the state by implication; because chapter 260, Laws of 1912, under which the claim of lien is made by the city, and in section 4 of said chapter, expressly excludes property of the state from operation of the lien given municipalities in such cases; because the one thousand dollars loaned Valverde from the sixteenth section funds of the county, and the lien acquired by appellee for its repayment in the form of the trust-deed, were, prior to and at date of the alleged expenditure for street paving, and still are "property owned by the state;" because the title of the state in and to said property is that of a trustee; because the state, as owner of said property in trust which it had accepted upon certain and specific conditions, did not, and could not, change or alter the terms and conditions of said trust, by act of its legislature whereby said trust fund would or could be diverted from the purpose for which it was created and granted; and because the decree complained of by appellant is in conformity and accordance with the law governing such matters.

We offer ample authority in support of these assertions, and sustaining the decree. Municipalities act under limited powers and must find their authority clearly given in the law. They have no powers except such as are delegated to them by the state, either expressly or by necessary implication. Whenever a city seeks to exercise power, it must find that power in its charter, or legislative act, or it must be one of necessary implication from other powers, granted in order to make effective the power which the legislature has conferred in express terms. Wise v. Yazoo City, 96 Miss. 507, 51 So. 453; Hazelhurst v. Mayes, 96 Miss. 656, 51 So. 890; Steitenroth v. Jackson, 99 Miss. 354, 54 So. 955.

Therefore, to succeed in establishing priority of lien over that of appellee the appellant must show authority therefor clearly given in the statute; and, inasmuch as appellant cites and seeks such priority under the provisions of chapter 260, Laws of 1912, it is dependent upon the provisions of said chapter for the establishment of its claim.

Section 4, chapter 260, is an express, positive and absolute exclusion of any property of the state from the operation of said chapter. It means that, in so far as state property is concerned, such shall, in no manner, become or be subject to any of the provisions of said chapter; that the said chapter shall be treated and considered as non-existent in relation to property of the state. We submit that the legislature had this exception, or exclusion, from operation of the act, in mind and, by inserting in said section 17, chapter 260, the words that "the cost of the special improvement to the extent that it may be assessed on the property of owners as provided by this act," it declared and gave notice to all municipalities that the powers and privileges granted in the chapter were limited to property owned by private parties, bodies and institutions, but not to property of the state, upon which the lien authorized could be fastened.

Generally speaking, the legislature has the power to create liens for special assessments of taxes for local improvements, and for the enforcement of same, and make such liens superior and paramount to all other liens, except state and county taxes, including mortgages which antedate the act creating the special tax lien. But, such liens relate to and take precedence over existing mortgages, and other liens, of a private character or nature. Baldwin v. Morony (Ind.), 30 L. R. A. (N. S.) 761; Williams v. Cammack, 27 Miss. 209.

But the foregoing rule has no application where the prior mortgage was given to secure payment...