Edgington v. City of Memphis

• Decision Date: 20 July 1925
• Citation: 274 S.W. 548,152 Tenn. 152
• Parties: EDGINGTON v. CITY OF MEMPHIS.
• Court: Tennessee Supreme Court

274 S.W. 548

152 Tenn. 152

EDGINGTON v. CITY OF MEMPHIS.

Supreme Court of Tennessee.

July 20, 1925

Certiorari to Court of Civil Appeals.

Bill by T. B. Edgington against the City of Memphis. The Court of Civil Appeals affirmed the decree of the chancellor dismissing the bill, and complainant brings certiorari. Affirmed.

Edgington & Edgington, of Memphis, for appellant.

E. B Klewer, City Atty., R.I. Moore, and C. P.J. Mooney, Jr., all of Memphis, for appellee.

HALL J.

The bill in this cause was filed by T. B. Edgington to enjoin the city of Memphis from selling a certain lot fronting on the north side of Beale avenue between South Main street and South Front street, owned by him, against which a second front foot assessment had been levied in 1921, and which was past due and delinquent. The city had advertised the property to be sold for this front foot assessment.

Upon a hearing before the chancellor the bill was dismissed and complainant appealed to the Court of Civil Appeals. That court affirmed the decree of the chancellor, and the cause is now before this court on complainant's petition for writ of certiorari, and for review.

The authority of the city of Memphis to levy special assessments for street improvement is conferred by chapter 341 of the Private Acts of 1907. Section 1 of this act provided that in all municipalities of this state having a population of 100,000 inhabitants according to the federal census of 1900 or any subsequent federal census, it should be lawful for the legislative bodies of such municipalities upon petition signed by the owner or owners of 60 per cent. of the frontage of the lots or parcels of land abutting on such portion of any street, highway, or alley as set out in the petition within the corporate limits of such municipalities, to provide by ordinance for the improvement of such street highway, or alley by opening, widening, extending, grading, curbing, guttering, and paving, and to provide by ordinance for the improvement of such street, highway, or alley by opening, widening, extending, grading, curbing, guttering, and paving, and to provide for making special levies or assessments upon the lands abutting on such street, highway, or alley to be improved in the manner thereinafter set out in other sections of the act, to pay for such improvement.

Chapter 341 of the Acts of 1907 was amended by chapter 109 of the Private Acts of 1909, so as to provide that in all municipalities of this state having a population of not less than 100,000 inhabitants according to the federal census of 1900, or any subsequent federal census, it should be lawful for the legislative bodies of such municipalities to provide by ordinance for opening, extending, widening, grading, paving, macadamizing, curbing, guttering, or otherwise improving in such manner and with such materials and with such culverts as such legislative bodies may determine, and to provide for making special levies or assessments upon the land abutting on such street, highway, or alley, or part, or parts thereof to be improved, in the manner thereinafter set forth in said act, to pay two-thirds of the cost of such improvement.

The substance of the change made in the act of 1907 by the act of 1909, was to relieve the city of the necessity of first securing or having a petition signed by 60 per cent. of the frontage of the lots or parcels of land abutting on the street to be improved.

By Improvement Ordinance No. 224 passed by the board of commissioners of the city of Memphis pursuant to the statutes hereinbefore referred to, providing for the paving of Beale avenue from South Main street west to the Illinois Central Railroad right of way, with second-class granite blocks laid on a gravel foundation. This ordinance was confirmed on September 27, 1910, and pursuant to its provisions Beale avenue was paved with granite blocks, and complainant's property was assessed, for said improvement, with $93.55 which complainant paid on August 5, 1912.

It appears that this pavement became worn, dilapidated, and unsuited to the needs of the public, whereupon the board of commissioners of the city passed Improvement Ordinance No. 381, providing for the repairing, grading, draining, curbing, and paving with asphalt pavement on concrete foundation of Beale avenue from the east property line of South Front street to the west curb line of South Fourth street. This ordinance was passed on final reading August 5, 1919.

A notice to property owners was thereupon published in the Memphis Press, a daily newspaper of general circulation in the city of Memphis, advising property owners of the passage of the ordinance, the nature of the proposed improvement, and the estimated cost thereof, and notifying all interested property owners that the board of commissioners would hear remonstrances and protests against the construction of the improvement on August 19, 1919, at 2:30 o'clock p. m.

Complainant testified that no personal notice of the passage of the ordinance, or the making of the proposed improvement was served upon him; but the undisputed evidence is that the notice by publication was regular and in accordance with the provisions of chapter 341 of the Acts of 1907, and acts amendatory thereof, constituting the Front Foot Assessment Law.

No protests having been filed by any property owner affected the ordinance was confirmed August 19, 1919; and the work provided for was completed according to the terms of the ordinance, and on April 27, 1921, a notice to property owners was published in the Memphis Press, advising them that the book of assessments had been made up, and was open for public inspection, and would so remain until May 10, 1921, at which time the board of commissioners would meet to hear and determine any objections or defense which might be offered...