Edwards House Co. v. City of Jackson

• Decision Date: 16 December 1907
• Docket Number: 12867
• Citation: Edwards House Co. v. City of Jackson, 91 Miss. 429, 45 So. 14 (Miss. 1907)
• Court: Mississippi Supreme Court
• Parties: EDWARDS HOUSE COMPANY v. CITY OF JACKSON

45 So. 14

91 Miss. 429

EDWARDS HOUSE COMPANY v. CITY OF JACKSON

No. 12867

Supreme Court of Mississippi

December 16, 1907

FROM the chancery court of, first district, Hinds county, HON. G GARLAND LYELL, Chancellor.

The city of Jackson, appellee, was complainant in the court below; the Edwards House Company, a hotel corporation appellant, was defendant there.

From a decree overruling its demurrer to complainant's bill defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Affirmed.

Green &amp Green, for appellant.

To the resolution or ordinance of January 2, 1902, there are divers fatal objections:

(1) It is required by this § 3011, Code 1892, that: "The board shall by resolution declare such work or improvement, describing it, necessary."

We submit that herein this resolution is fatally defective. Let it be noted that the requirement of this resolution is that there shall be notice, so that if any party, who has a right to object, may do so. Under this section it is a condition precedent to the right in the city to proceed under this ordinance, and before any step is taken thereunder, the resolution, which is required to "describe the improvement" shall be published for a period of three weeks. This is a condition precedent, and if, in response to the said notice thus given a majority shall protest, in and of itself, the right to make the improvement is thereby defeated. Now, the object being notice -- to enable those who have a right to know -- those whose consent thus given is an essential prerequisite to the doing of the work -- that they and each of them should know, and know accurately, what the improvement is to be, and thus its probable cost, and by whom the said is to be paid. It is elementary that when an election is presented to a party, that he has the right to demand the knowledge of everything necessary to enable him to make the choice.

This ordinance did not declare what portion of the streets should be paved nor whether they should be paved with brick, stone, or blocks; and did not specify that any portion of the cost should be imposed upon the abutting property owners. As said in Nugent v. City, 72 Miss. 1052, construing § 3011, "That when any improvement which requires 'unusual outlay and costs in excess of the general improvement fund' is deemed 'necessary' by the mayor and board of aldermen, they shall so declare by resolution, describing the improvement."

To describe is defined thus in 14 Cyc., 226: "To delineate or mark the form or figure of; trace out; outline."

And in 9 Am. & Eng. Law (2d ed.), 402, it is said: "Describe -- To describe means to define by properties or accidents; to represent by words or other signs; to give an account; to relate." "Description -- Description is defined as (1) A delineation or account of a particular subject by the recital of its characteristics, accidents or qualities," etc.

And in the notes the following appear: "3 Black's Law Dict., quoted in McGowan v. Maclaw, 16 Mont. 234, 'Every acknowledged dictionary in the English language would sanction as an accurate definition of the word description: "a representation that gives to another a view of the thing intended to be represented." In re Fitzpatrick, 19 L. R. Ir., 210.'"

See also the other cases cited in these notes.

If there is one thing this ordinance does not do, it is to describe the improvement. True it says to pave the streets: -- but consider what that may mean -- it may be done with asphalt, with cobble stones, with brick, with chert, with wooden blocks and divers other things, all of different cost, and, therefore, of different expense to the abutting owner; and, hence, we insist that merely to state that "paving is necessary" without further specifications is not a compliance with the statute. This ordinance does not specify what dimensions are to be paid; nor does it give the width; nor the grade upon which the same is to be laid; nor whether all or only a part shall be paved; nor did it state anything whatever in regard to the car line as to who should do the paving therein. The specifications describing the improvement were not adopted by the Board until April 19, 1902, infra. When for the first time the owner could exercise his right to vote intelligently and then the right was barred.

(2) From the exhibits it appears that on January 7, 1902, at the same meeting, at which was passed the foregoing resolution ordinance this ordinance was also passed:

"An ordinance proposing to issue bonds to the amount of $ 100,000, with which to provide funds for paving Capitol and State, Pearl and President streets," and under this ordinance in accordance with §§ 3014, 3015 and 3016, Code, this $ 100,000 of bonds were issued, and floated, and are still outstanding, and that the purpose of issuing them was to pay for the paving of precisely the same streets as are described in the first resolution or ordinance passed. January, 1902, under § 3011.

This question is thus presented: When a resolution or ordinance declaring an improvement necessary is passed, which does not express that the improvement is to be at the expense of the abutting owner, and, contemporaneously, there is an ordinance passed providing for the issue of bonds under §§ 3014, 3015 and 3016, Code, to pay for this improvement, and in this condition of the record the time for objecting under § 3011 has passed before any expression of any expected local assessment therefor, can a valid local assessment be predicated thereof?

1. The abutting owner has only the time prescribed by 3011, to object to the improvement as an improvement, and unless the resolution of January 7, 1902, specifies that it is to be at his expense, he has the right to presume that it is to be done at the city's expense and by general taxation. Greenville v. Harvie, 79 Miss. 754, 756.

There the language was "the hereafter mentioned and described improvements and repairs of sidewalks in said city are necessary, and to this end notice is hereby given that the city council will cause to be constructed or repaired the sidewalks of said city, and that said improvements . . . of brick or concrete nine feet wide," p. 756, and says the court, "The objection we find to the proceeding of the city of Greenville, that the city council did not specify, in advance of the work being done, that the owners of the lots abutting on Walnut street should bear the whole expense of building said sidewalk. In fact, to our apprehension of the matter, the city, by its ordinance, indicated its purpose to construct this sidewalk at the sole expense of the city," p. 757.

But here the city contemporaneously provided for the issuance of bonds, to be paid by general taxation, to pay for this improvement, and, hence, Greenville v. Harvie, supra, denies all power thereafter to impose a local assessment.

When there has been a proceeding, in accordance with §§ 3014, 3015 and 3016, in issuing bonds before the assessment is made, as appears from the ordinances made exhibits, is it lawful to make a special assessment upon the abutting property owners when the city has paid for the work with bonds under §§ 3014, 3015 and 3016? When, according to the showing, the amount realized from the assessment will not be used to pay for the making of the improvement, the only lawful purpose for which it could be used, but will be placed in the city treasury. The city must apply to assessment to the making of the improvement, and yet, under the very condition brought about by the city's own acts, it is impossible to do so.

The rights given under § 3011, and those given under §§ 3014, 3015 and 3016 are exclusive one of the other, and if the city pursues the remedy under the one to accomplish the end, by so doing it precludes itself, absolutely, from using the other.

Wherein consider:

(a) Under § 3014, it is provided: "The mayor and board of aldermen, for the purpose of raising money for . . . paving streets may issue bonds." This is a grant of the sovereign right, wherefor a tax is to be imposed, and it is essential that a strict construction of the words be made, and unless it appears from them affirmatively that the power exists it is non-existent. There is granted the right to issue bonds to pave the streets, and under § 3015, it is expressly provided: "The mayor and board of aldermen shall levy annually a special tax to be used exclusively in paying the interest on such bonds and the bonds maturing within one year, and providing a sinking fund for the redemption of the bonds issued." Whereas under § 3012 the assessment is to be upon the property in front of which the improvement is to be made, and is made to be enforced by a suit in the chancery court if the same is not paid, and this suit is given special facilities for the purpose of expediting the same. Now suppose there is an issue of bonds to the extent of $ 100,000 by a city, and that for the payment of these bonds there is in accordance with the provisions of the law a special tax imposed each year during the twenty years which these particular bonds have to run, is it not evident under this provision that the property of the defendant will in the nature of things be taxed ad valorem to pay the bonds and interest thus accruing as part of the property within the limits of the city, and that, as such, it will contribute to the payment of the sum thus due. The bonds were voted for the purpose, as shown upon their faces, of paving identically the streets that were paved, and the same were allowed to be issued herefor, and are now, as shown by this record, outstanding and a charge upon the respondent's property.

Now turn to this alleged special assessment. The city has paid the contractor who did the paving...