Langstaff v. Town of Durant

• Decision Date: 24 May 1920
• Docket Number: 20984
• Citation: 122 Miss. 471,84 So. 459
• Court: Mississippi Supreme Court
• Parties: LANGSTAFF v. TOWN OF DURANT

84 So. 459

122 Miss. 471

LANGSTAFF v. TOWN OF DURANT

No. 20984

Supreme Court of Mississippi

May 24, 1920

March 1920

1. MUNICIPAL CORPORATIONS. Requisites of publication of notice of special assessments stated.

Under chapter 260, Laws 1912, notice to the owner of property sought to be charged with the cost of sidewalks being constructed of the assessment must be published for three full weeks by posting notices in three or more public places in the municipality, one of which must be at the mayor's office, and the record of the proceeding should affirmatively show this was done, and should also show that there was no newspaper published in the municipality during the time the notice is published, if there be no such newspaper. If there be a newspaper published in such municipality, the notice must be published in that.

2 PROCESS. Statutes providing for notice in lieu of personal service must be strictly complied with.

The law is settled that statutes providing for notice in lieu of personal service must be strictly complied with. Where a statute requires notice to be posted at a particular place the notice must be so posted In accordance with the requirements of the statute. Ponder v. Martin 119 Miss. 156, 80, So. 388 Id., 78 So. 929; Moore v Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Diggs v. Ingersoll, 28 So. 825, cited.

3. MUNICIPAL CORPORATIONS. Special assessment cannot include cost of engineering and attorney's fees and interest on borrowed money.

In assessing the owner of property for special improvements under chapter 260, Laws 1912, the cost of engineering fees and of attorney's fees, and interest on money borrowed by the municipality, cannot be included, the statute giving the property owner the right to construct the improvement in accordance with plans furnished by the city, and making the property owner liable for the cost of the work at his own expense, and providing that the work shall be done under the supervision of the street commissioner.

4. MUNICIPAL CORPORATIONS. Special assessment void for uncertainty in description of property cannot be cured by pleading.

In order to fix a lien upon property for the cost of sidewalks constructed by a municipality at the expense of the property owner, the property assessed must be described with such certainty that from the assessment alone it may be located with certainty, and an assessment void for uncertainty cannot be cured by the pleading seeking to enforce the lien.

HON. Z. A. BRANTLEY, Special Chancellor.

APPEAL from the chancery court of Holmes county, HON. Z. A. BRANTLEY, Special Chancellor.

Suit by the Town of Durant against E. L. Langstaff to enforce a lien for the laying of a sidewalk. From an order overruling a demurrer to the bill, defendant appeals. Reversed, demurrer sustained, and cause remanded.

Cause reversed, demurrer sustained, and cause remanded.

Wells, Robertson & Jones and W. B. Banks, for appellant.

The whole system of apportioning the costs adopted by the town of Durant being entirely wrong, that system being provided in case of improvement to the streets only and not to the sidewalks, the effort to compel appellant to pay same is void, as it is necessary as a condition precedent to the enforcement of such assessment that the various steps and plans and methods to be used be strictly followed. See City of Jackson v. Williams, 92 Miss. 301. The second ground of demurrer is that the notice of assessment was not published as required by law in a newspaper, published in the municipality of Durant, or by posting notice in two or more public places, but was published in the Lexington Advertiser, a paper published at Lexington, Mississippi, and not in the town of Durant. This ground of demurrer would have no application in this case as far as the publication in the Lexington Advertiser was concerned, but the appellee having made all the proceedings and pleas in the first case as exhibits to his present bill, it is as applicable now as it was in the first suit. Besides we contend that the first notice of assessment in the subsequent proceedings had and done by the said board of mayor and aldermen was void because it was not published in the Durant News, a paper published in said municipality, and that the second notice, the publication of the resolution fixing the amount of the special assessment, did not comply with the law, in that it failed to state as required by law that the said assessment was on file and was subject to the inspection and objection of the property owners. The giving of such notice as required by law was a condition precedent to the fixing of the lien upon the property of appellant to secure said taxes. This not having been done, the assessment never became a lien and is utterly void and of no effect.

The third ground of demurrer is as follows: "The improvement proceedings invalidated once because of failure to comply with legislative requirements, cannot be validated," and the fourth ground of demurrer is: "Because the defect in the proceedings for the assessment of the property being a defect related to the requirement which could not be dispensed with in the first instance by the complainant, is a defect that no subsequent act of the complainant can cure;" and the fifth ground of demurrer is: "Because the defect in the assessment proceedings being a defect in a jurisdictional matter is such a defect as can never be cured by any act of the complainant."

The legislature by subsequent enactment may legalize defective improvement proceedings; but the defect or want of compliance with the law must relate to a requirement that might have been disposed with in the first instance; hence a failure to give notice to property owners is a defect that cannot be cured. An amendment to a charter providing that all ordinances theretofore made should remain in force will not validate an ordinance which is void because unauthorized. Himmelmann v. Hoadley, 44 Cal. 213; Clinton v. Walker, 98 Iowa 655; Red Wing v. Chicago, etc., R. Co., 72 Minn. 240.

A jurisdictional defect in the proceedings cannot be cured by subsequent action with relation to matters in which such defect is not necessarily a question involved. People v. Brooklyn, 89 Hum. (N. Y.) 241, 25 N.Y.S. 91.

In the last mentioned citation it was held that "Where a whole street was ordered opened, grading commissioners were appointed for only a part thereof, the defect was not cured by a confirmation of such commissioners' report." "Where an original assessment is void an additional assessment to make up this deficiency is likewise void." Workman v. Chicago, 61 Ill. 463; Bowen v. Chicago, 61 Ill. 268; Harrison v. Chicago, 61 Ill. 459.

"Jurisdictional defects in assessment proceedings cannot be cured by subsequent action of the city without express legislative authority. When an ordinance prescribing the mode of making an assessment has not been substantially complied with, the council cannot cure the defect by resolution." Jennings v. Fisher, 103 Ind. 112; Williams v. Detroit, 2 Mich. 560.

The sixth ground of demurrer is as follows: "Because the bill shows on its face that the construction of the sidewalk was not done under the supervision of the street commissioner as required by ordinance No. 98 of the town of Durant, but that it was done under the supervision of X. A. Cramer, civil engineer," under ordinance No. 98, exhibit C, to the bill. Section 2 of said ordinance provides that said sidewalks shall be constructed under the direction of the street commissioner, and when done according to his direction as to material, grade, width and alignment, it shall be presumed that said sidewalks are constructed herein as provided." But the bill herein recites, that the board employed X. A. Cramer as engineer to supervise the construction of the work and employed Hon. J. D. Guyton to keep an accurate account of the cost of such construction. We contend that the person elected street commissioner of said town was the only person under the law under whose direction said work could have been constructed, and that it was his duty to keep an accurate account of the costs of improvement in front of each lot and that said board of mayor and aldermen was without authority to appoint any one else to perform these duties.

The seventh ground of demurrer is as follows: "Because the assessment attempted to be levied against the defendant is void for patent ambiguity." More fully stated, a description of the property of appellant in the attempted assessment is a patent ambiguity and no lien could be affixed upon it. The description of the property of appellant attempted to be made is on page 33 of the record, and is as follows:

"E. L. Langstaff, Dr. To the town of Durant, April 7, 1914.

Part of lot 22 of 176 lineal feet 5-foot walk at .50 $ 88.00

Part of lot 22 of 15 lineal feet 8-inch tile at .35 5.25

Part of lot 22 of 12 lineal feet 6-inch tile at.20 2.40

"This is to certify that the foregoing account is true and correct to the best of my knowledge and belief.

"T. L. WEST, Clerk,

"Town of Durant, Miss."

We will cite the one case of Lazar v. Caston, 67 Miss. 275, which holds the description, "North part, southwest quarter, etc., void for uncertainty." It requires no citation of authority to convince this court that the description "East part of Lot 22" is a patent ambiguity.

The eighth ground of demurrer is as follows: "That the street commissioner, or the person acting in that capacity for the municipality, did not keep an accurate account of the cost of said improvement as required by 102." We have already argued this ground or demurrer in this brief, and do not consider it necessary to say anything further on the subject except to reiterate...