Edwards House Co. v. City of Jackson

• Decision Date: 07 May 1923
• Docket Number: 23135
• Citation: 132 Miss. 710,96 So. 170
• Court: Mississippi Supreme Court
• Parties: EDWARDS HOUSE CO. et al. v. CITY OF JACKSON

96 So. 170

132 Miss. 710

EDWARDS HOUSE CO. et al. v. CITY OF JACKSON

No. 23135

Supreme Court of Mississippi

May 7, 1923

(In Banc,) January 1, 1920

MUNICIPAL CORPORATIONS. Contract to pay annual sum equal to entire tax on designated property without petition of majority of qualified voters void.

The Laws of 1920, chapter 326, section 1, amending chapter 209, Laws 1918, section 3, provides: "That no warrant shall be issued or indebtedness incurred by any... municipality unless there is sufficient money in the particular fund from which the allowance is or must be made to pay such warrant or indebtedness. Provided, however, that such indebtedness may be incurred upon petition of a majority of the qualified electors," etc. A city cannot without such petition purchase property on a credit basis extending over a number of years, and a contract by the city to pay annually a sum equal to the entire tax on designated property for each year is ultra vires and void.

HON. V J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suit by the Edwards House Company and others against the City of Jackson. From a decree for defendant, plaintiffs appeal. Affirmed.

Judgment affirmed.

Green &amp Green, for appellant.

No exemption is granted under the contract there being but an appropriation of taxes to purchase a property desired by the city. This contract does not in any way impair the taxing power by abridgment, surrender or otherwise. As the facts now appear, the total consideration to be received by appellant is this appropriation of taxes, and in this case, therefore we are not called upon to deal with what the future may hold in store, with what may be done, with what may not be done. The duty of the judiciary is complete when it decides the issues made, and is not concerned with what may not come to pass. 24 Ency. Law (2 Ed.), 775; Hart v. Picard, 75 Miss. 654; Memphis, etc. Railroad Co. v. Neighbors, 51 Miss. 412; Phelps v. Harris, Id. 788; Wofford v. Bailey, 57 Miss. 239. Further, where a judgment is had without a pleading upon which to base it, it is void. The judicial power extends merely to the settlement of actual controversies. It cannot render declaratory judgments, but must confine its exercise to adjudication where one party affirms and another party denies and the right with reference to the property depends upon such determination. McLeod v. Womack, 50 So. 66; Cent. Dig. Title Judgments, 437, Dec. Dig., Id. 251; Porterfield v. Butler, 47 Miss. 170; Steele v. Palmer, 41 Miss. 88; Black v. Mosely, 24 Miss. 170; Armstrong v. Barton, 42 Miss. 506; Schuber v. Murphy, 91 Miss. 526, 44 So. 810; Lee v. Dozier, 40 Miss. 482; Hale v. Lancaster, 44 Miss. 418; Hayes v. Estelle, 25 Miss. 242; 23 Cyc. 1235.

POWER OF MUNICIPALITY TO PURCHASE LAND FOR STREETS. This municipality was vested with such power under section 3314 of the Code, 1906. By section 3337 they have the power of eminent domain in laying out streets. Therefore under the statutes of the state of Mississippi, as to streets, the municipality has full jurisdiction. In short, the same jurisdiction as is possessed by the boards of supervisors over roads, ferries and bridges, so that integrated into the definition of the power of the city is the power of the board of supervisors as defined in Board v. Arrighi, 54 Miss. 668; Paxton v. Baum, 59 Miss. 531; Bank v. Duncan, 52 Miss. 743. Full value will be paid to the city under the terms of the deed when this property was acquired. The city is the judge and in the absence of fraud its judgment is not open to review. Dantzler v. State, 97 Miss. 355, 53 So. 4; Phillips v. City of Portsmouth, 78 S.E. 654; Grant v. City of Davenport, 36 Iowa 396; Monroe Water Works v. City of Monroe, 110 Wis. 11, 85 N.W. 685; Ludlington Water-Supply Co. v. City of Ludlington, 119 Mich. 488, 78 N.W. 561; Los Angeles v. The Los Angeles City Water Works Company, 49 Cal. 638; Illinois Trust and Savings Bank v. City of Arkansas City, 78 F. 282. See also Monroe Water Works v. City of Monroe, 110 Wis. 11, 85 N.E. 685; Cartersville, etc. v. Cartersville, 89 Ga. 683; Grant v. City of Davenport, 36 Iowa 396; Washburn v. Washburn Water Co., 120 Wis. 575; Water Co. v. Waterville, 93 Me. 595; City of Partland v. Partland Water Co., 67 Maine, 135; Dillon Municipal Corporations (5 Ed.), section 1310; 28 Cyc. 1689.

The broad distinction must be observed between an exemption from taxation and a contract of purchase of property by an appropriation of taxes regularly levied and collected, which when levied and collected are applied in liquidation of a contract liability admeasured by their amount. This court has uniformly held that taxes may be voted and levied in aid of a public improvement. Brown v. Beatty, 5 George 240; Hawkins v. Carrol County, 50 Miss. 757; Railroad Co. v. McDonald, 53 Miss. 245. A leading case in the Federal court is Bartholomew v. The City of Austin, 52 U.S. App. 512. See also Grant v. The City of Davenport, 36 Iowa 396, 406; Bank v. Worrell, 67 Miss. 58; LeBlanc v. Railroad Co., 72 Miss. 669; Abbott on Municipal Corporations, 721; Quitman County v. Stritze, 70 Miss. 323.

II. NO RIGHT IN MUNICIPALITY TO REFUSE PAYMENT WHEN IT STILL CONTINUES IN THE ENJOYMENT OF THE PROPERTY RECEIVED IN VIRTUE OF THE CONTRACT. The power to acquire has been hereinbefore set forth, and under Lester v. Jackson, 69 Miss. 887, express sanction for acquisition has been set forth. See also Reid v. Trowbridge, 78 Miss. 549; 28 Cyc. 604; Louisville v. University, 15 B. Munroe, 642; 28 Cyc. 620. Now passing for the moment this proposition, we direct attention of the court to the fact that the municipality is in actual possession of the property which it has obtained in virtue of this contract, and being so in possession, it is using the same for lawful, corporate purposes of a street, and yet when sued for the purchase price of that whereof it is so in possession, seeks to defend on the ground that its right of acquisition is in excess of its charter powers. Directly controlling is the strong case of Watts v. Buchanan, 92 Miss. 544. This rule of law has become fundamentally integrated into our jurisprudence, and was re-affirmed in Bank v. Bank, 67 So. 961. So far, therefore, as the Edwards House Company is concerned, this is an executed contract whereunder the appellant has parted with all of that whereunto the appellee assumed to plead ultra vires. Executed contracts must be distinguished from unexecuted contracts. Camden & Atlantic R. R. Co. v. Mays Landing, etc., R. R. Co., 48 N. L. Law Rp. 561; Telegraph Company v. Railroad Company, 1 McCrary's Rep. 188, 201; Bissell v. The Michigan Southern & Northern Indiana Railroad Companies, 22 N. Y. Rep. 258; Bond v. Terrell Manufacturing Company, 82 Texas 311-314; Prairie Lodge v. Smith, 58 Miss. 308; Grand Gulf Bank v. Archer, 16 Sm. & M. 180, 181; Williams v. Bank, 71 Miss. 868; Gillam v. Brown, 43 Miss. 642, Allen v. Edwards, 93 Miss. 731.

III. NO SURRENDER OF POLICE POWER. The appellee draws in question the validity of section 7 of the contract, under which it was provided that "said city shall have no right at any time to have said parcel of land above described paved in any other manner than with a noiseless pavement, which shall exclude all forms of vitrified brick, concrete and other like pavements, but shall give the right to said city to have said plat paved with wood blocks, asphalt, bitulithic, and other substances of a similar character. The right to pave is not denied the appellee, but a limitation is placed upon the rights of the appellee in the property co-equal with the protection necessary to the existing rights of the adjoining owner. The owner of property may, when disposing of it, so limit its use as not to thereby destroy valuable property of which he continues to be the owner. The right of property was defined in Van v. Edwards, 67 L. R. A. 464; Wynehamer v. People, 13 N.Y. 396; Block v. Schartz, 65 L. R. A. 311; Allgeyer v. Louisiana, 165 U.S. 578; Truax v. Raich, 239 U.S. 33; Insurance Co. v. Dodge, 246 U.S. 374; United States v. Freight Association, 166 U.S. 320; Savings & Loan Ass'n v. Topeka, 20 Wall. 662; Cole v. La Grange, 113 U.S. 1; Madisonville Traction Co. v. St. Bernard, 196 U.S. 252, 49 L.Ed. 462; Green v. Frazier, 253 U.S. 233. Until, unless, and except this government shall become a government of men and not of law, it will never be possible for the appellee, in virtue of its being a city, to take from the humblest of its citizens that property whereof he was lawfully seized. The right to pave this street with material which would damage the business of complainant was not given. It can be condemned, and when condemned and compensation therefor made, cheerful compliance with the laws of the land will be by appellant had, but until so condemned and compensation therefor made, it is not within the power of any government of America to take that which is this appellant's and appropriate it to the public use unless, until, and except first due compensation is therefor made.

W. E. Morse, for appellee.

While our courts have never been called upon to pass upon a contract similar to this one, yet they have stated how streets and highways could be established. Stockstill v Nicholson, 1 Walker 75; Craft v. DeSoto County, 79 Miss. 618, 31 So. 204; Rylee v. State, 63 So. 342; Illinois Central Railway Company v. State, 48 So. 561. Counsel's answer to this contention is that the city had the right to purchase this street, that they were acting within their statutory rights, and within the statutory powers conferred upon a municipality. Charter powers are to be construed most strongly against a right claimed by a municipality and not clearly given by ...