Love v. Mayor & Board of Aldermen of Yazoo City

• Decision Date: 11 January 1932
• Docket Number: 29510
• Parties: LOVE v. MAYOR & BOARD OF ALDERMEN OF YAZOO CITY
• Court: Mississippi Supreme Court

138 So. 600

162 Miss. 65

LOVE v. MAYOR & BOARD OF ALDERMEN OF YAZOO CITY

No. 29510

Supreme Court of Mississippi

January 11, 1932

Division A

1 JUDGMENT.

Bill for injunction to restrain city officials from issuing bonds could not be maintained to test constitutional questions conclusively adjudicated in validation proceedings by final decree therein entered (Laws 1930, chapter 40; Code 1930 sections 312-317).

2. CONSTITUTIONAL LAW.

In bond validation proceeding, it was unnecessary that taxpayer be summoned individually to comply with due process (Code 1930 sections 312-317).

3. JUDGMENT.

Judgment by default permitted by taxpayers in bond validation proceeding has same effect as any other judgment by default rendered by court of competent jurisdiction (Code 1930, sections 313, 314).

4. JUDGMENT.

Where court has jurisdiction of subject-matter and parties, judgment is res judicata of all questions involved which could have been presented, as well as questions specifically presented by pleadings.

5. JUDGMENT.

Decree of validation held res judicata as to issuance of bonds by city, payment of proceeds to purpose for which issued, and accomplishment of equalization intended by rebate, refund, and remission of taxes yet unpaid under prior paving project (Code 1930, sections 313, 314).

HON. M. B. MONTGOMERY, Special Chancellor.

APPEAL from chancery court of Yazoo county HON. M. B. MONTGOMERY, Special Chancellor.

Suit by H. M. Love against the Mayor and Board of Aldermen of Yazoo City, Mississippi. From a decree dismissing the bill of complaint, complainant appeals. Affirmed.

Affirmed.

R. R. Norquist, of Yazoo City, for appellant.

The decree of the chancery court validating said bonds does not preclude inquiry into the constitutional validity of said chapter 40 of the Laws of 1930.

Attempted validated proceedings avail nothing if had with reference to an unconstitutional law. In other words, the legislature has the power to validate bonds which it could have constitutionally authorized, and the converse is equally true; the legislature cannot validate bonds which it could not have previously constitutionally authorized.

Bacot v. Board of Supervisors, 86 So. 765; Memphis & Charleston Ry. Co. v. Bullen, 121. So. 829.

J. G. Holmes, of Yazoo City, for appellee.

If any constitutional objection raised by appellant could be said to be sound, no such objection is now open to review because the final decree of the chancery court validating the bonds in question is conclusive against appellant as to all such objections.

Section 314 of the Code of 1930.

This statute makes the validity of any bonds validated thereunder conclusive, and prevents them from being thereafter assailed whether the alleged defect therein is the failure of the county, municipality, or district, to comply with the provisions of the statute under which the bonds were issued, or in the absence of any authority in the county, municipality, or district, to issue bonds in any event of the character of the bonds sought to be assailed or for the purpose for which they were issued.

Parker v. Board of Supervisors, 125 Miss. 617, 88 So. 72.

Such a decree rendered by the state court is res adjudicata as to any and all constitutional objections which were raised, or might have been raised, in the proceeding in the state court.

Fidelity National Bank v. Swope, 274 U.S. 123.

A municipal bond which is issued to raise money for a purpose for which the public funds cannot be lawfully expended is absolutely void, even in the hands of a bona-fide purchaser for value. A general grant of power by the legislature to a municipal corporation to borrow money and to issue bonds does not authorize the issuing of bonds for a purpose for which the municipality cannot lawfully expend money.

19 R. C. L., p. 1018.

Every issue necessarily involved and essential to the adjudication and the entering of the judgment is conclusively presumed and necessarily implied from its final decision.

34 C. J., p. 923, par. 1331.

OPINION

McGowen, J.

Love, the appellant here, filed his bill in the chancery court of Yazoo county, as a taxpayer therein, against the mayor and aldermen of the city of Yazoo City, Mississippi, by which he sought injunction against the appellees, restraining them from issuing or causing to be issued thirty-four thousand dollars in bonds, and from making a refund on paving assessments, and from canceling the unpaid paving assessments of certain abutting property owners. The appellees, the mayor and board of aldermen, filed an answer, admitting all of the allegations of fact contained in the bill, but denied the legal conclusions alleged therein; and upon the hearing thereof on bill and answer, the court below denied the relief prayed for, and dismissed the bill of complaint.

In brief, the bill averred that prior to November 10, 1930, the city of Yazoo City adopted a system of street paving on the front foot assessment plan, by assessing the whole cost thereof, exclusive of the cost of street intersections, against the abutting property; and, pursuant to said plan, certain streets of the city were paved, and the total cost, as stated, assessed against the abutting property and the owners thereof; that the city had collected certain assessments, and certain assessments were then due; and attached a transcript of the record of the proceedings, imposing said assessments on property owners for paving.

It was alleged that the city issued and sold bonds and collected the proceeds thereof to pay for prior paving, and that certain bonds remained due and unpaid.

The bill further alleged that the city of Yazoo City, by ordinances duly adopted on June 10 and November 10, 1930, by virtue of chapter 40 of the Laws of 1930, declared its intention to further extend the paving of its streets on an assessment plan less than that imposed in prior street paving projects, in order to pave certain streets; the cost of said paving to be borne partly by abutting owners and partly by the city, but on an entirely different basis from that theretofore adopted by said city; and the resolution further provided that the city would, in order to provide equality in the expense of street paving, refund to abutting property owners in prior street paving projects mentioned above, a certain proportion of the amount paid by them under said paving assessments, and cancel a certain proportion of any unpaid street paving assessments made theretofore against abutting property owners, and also provide for a levy of a general assessment against the taxable property of the entire municipality, in order to refund to certain abutting property owners, and to equalize the said assessments under the former plan, and under the plan then adopted.

The bill further alleged that by an ordinance adopted November 10, 1930, the city declared its intention to issue the bonds of the municipality, in order to provide for the payment of the refund as above set forth, and provided that an assessment against all the taxable property of the municipality should be levied to pay said bonds; and fixed the 8th day of December, 1930, as the date for the hearing of objections or remonstrances to the proposed refund of paid assessments, and directed newspaper publication, giving notice of a meeting on December 8, 1930; providing, further, that if twenty per cent of the qualified electors of the municipality filed a protest against such refund and cancellation before said meeting, then an election, as provided by chapter 40 of the Laws of 1930, could be had, for determination by the qualified electors thereof whether the proposed refund or cancellation should be made; and provided further that if no protest was filed, the said board would be authorized to make said proposed refund and cancellation, or otherwise avail itself of the statute; and that said notice was duly published.

At the same time, it is alleged that the board declared its intention to issue bonds of the city in the amount of thirty-four thousand dollars to provide funds for the purpose above stated, and that the bonds would be issued at the regular meeting of the board on December 8, 1930. The resolutions further ordered an election to be held in the municipality on the fourth day of December, at which the qualified electors might vote for or against the proposed bond issue. This publication was duly made, the notice of the election was duly given, the election was duly and legally held and resulted in favor of the issuance of said bonds by a vote of one hundred forty-four for the bond issue, to one against it; and thereafter, on December 8th, the mayor and board of aldermen ordered the bonds in the sum of thirty-four thousand dollars to be issued for the purpose already stated.

The bill further averred that said bonds had been duly validated by the chancery court of Yazoo county, and that the mayor and board of aldermen would issue the bonds unless prevented from so doing by the chancery court, and that the bonds, if issued, would be a lien, charge, and tax upon all the taxable property of the city.

All the proceedings, including the validation and the decree of the chancellor validating the bond issue, are made exhibits to the bill, and, as to each and all of the proceedings which we have outlined, it is alleged that they were duly and legally passed in accordance with the statutes. The bill charged that chapter 40 of the Laws of 1930 had been complied with, but that said chapter was violative of sections 100, 66, 16, 87, and 90 of the state Constitution of 1890.

It was further charged that said chapter 40, and said ordinance adopted thereunder, as to assessments and refunds and cancellations, are so vague that the...