Moore v. Board

• Decision Date: 17 December 1928
• Docket Number: 27492
• Court: Mississippi Supreme Court
• Parties: MOORE et al. v. BOARD, ETC., OF TOWN OF DUCK HILL. [*]

119 So. 324

151 Miss. 840

MOORE et al. v. BOARD, ETC., OF TOWN OF DUCK HILL. ^[*]

No. 27492

Supreme Court of Mississippi

December 17, 1928

Division B

1. MUNICIPAL CORPORATION. Parties are bound by order awarding contract for municipal improvements without appeal therefrom injunction is not available as to order awarding contract for improvements, where proceedings were not void on their face (Laws 1924, chapter 194; Code 1906, section 81).

Under chapter 194, Laws of 1924, providing for public improvements In cities and towns, where the notice required by the act is given, and the improvements are ordered by the municipal authorities, and no appeal is taken from the order awarding the contract for improvements, and assessing the benefits and damages, the parties are bound thereby, and cannot afterwards, falling to avail of defenses therein permitted resort to injunction where the proceedings are not void on their face.

2. MUNICIPAL CORPORATIONS. Abutting owner may be charged, with cost of improving streets under front foot rule, though improved part of street is not same width throughout length (Laws 1924, chapter 194).

In improving city streets under the said chapter, it is not required, that the improved part of the street be of the same width throughout the length of the improved portion thereof before the cost of the improvements may be charged against the abutting property owners by the front foot rule.

3. EQUITTY. Party served with process five days prior to rule day following bill for injunction must appear and plead at succeeding rule day; chancellor's action in hearing matter as though pleadings were timely filed, was equivalent to granting leave to file out of time.

Where a bill for injunction is filed, returnable at the rule day following, the party served with the process five days prior to such rule day should appear at the succeeding rule day, and plead, answer, or demur. But, where such pleading is not filed at the next rule day, and the chancellor overruled: the motion to strike the pleadings from the file, and heard the matter as though pleadings were filed timely, such action of the court is equivalent to granting leave to file out of time, and will not be reversed on the ground alone that the pleading was not timely filed.

4. MUNICIPAL CORPORATIONS. City is not prevented from paving street because adopted as pan of state highway.

The fact that the state highway commission adopted a city street as part of a state highway, and has power to improve and maintain it as a part of the highway, does not prevent the city from paving such street at the expense of the property owners and of the city treasury, as the taking over of the highway by the highway commission does not completely divest the city of control of the street, nor relieve it of the duty of keeping it in reasonably safe condition for travel. Atkinson v. Decatur, 131 Miss. 707, 95 So. 689.

HON. N. R. SLEDGE, Chancellor.

APPEAL from chancery court of Montgomery county, HON. N. R. SLEDGE, Chancellor.

Suit by E. E. Moore and others against the board, etc., of the town of Duck Hill. Judgment for defendant, and complainants appeal. Affirmed.

Judgment affirmed.

W. M. Mitchell, for appellants.

The resolution of necessity was illegally adopted, at an unauthorized meeting of the board. The resolution fails to comply with the law requiring that it must show how each member voted, naming each. This was not done. It must have been passed at a legal meeting of the board. The chapter on municipalities under which this town is operating provides for only two kinds of meetings, first the regular fixed monthly meeting which is on the second Tuesday of each month, and second, called meetings, which must be called by the mayor or three members of the board and due notice served stating in said call and notice the objects of the meeting. The record in this case shows that neither of these methods was observed, but that this resolution was adopted at an adjourned meeting, without any showing in the resolution as to why it was taken at the alleged adjourned meeting. See Lum v. Vicksburg, 79 Miss. 950.

It is well settled that municipalities act under limited powers and must find their authority clearly given in the law, and when so found they must follow the law. Hazlehurst v. Mayes, 96 Miss. 266; Steitemroth v. Jackson, 54 So. 955; Alabama R. R. Co. v. Turner, 52 So. 261; 8 Cyc. 327.

The case of Green v. Hudson, 139 Miss. 471, does not, we submit, change this rule, and is not in point in this case because the facts were different.

It has been held that ordinances declaring improvements necessary must have in them such facts as will fully enable the property owner to find out what will be required of him to be done, and failure to set out such facts makes the resolution fatally defective. Jackson v. Williams, 92 Miss. 301; City of Jackson v. Tucker, 101 So. 708; City of McComb v. Barron, 112 So. 875. See Edwards House v. Jackson, 139 Miss. 644.

The board has no authority to make the proposed improvements upon that part of Front street included in their resolutions for the reason that they had no jurisdiction over this street at the time, it having been turned over by the town authorities to the state Highway Department for maintenance and improvement prior to the time of this proceeding, and it has been taken possession of and was then and still is being maintained by said Highway Department and that it had been incorporated into and become a part of Federal Aid Highway known as Mississippi, U.S. 51, and no authority or permission has been obtained from said Highway Departments to make the proposed improvements. Hodges v. Western Union Telegraph Co., 72 Miss. 910; Canton v. Marshall, 84 Miss. 268; Decatur v. Atkinson, 131 Miss. 707. See Also: City of Jackson v. Tucker, 101 So. 708; Dean v. Senatobia, 108 So. 178; Canton v. Davis, 111 So. 137; Jackson v. Hart, 117 Miss. 877; Doxey v. Jackson, 128 Miss. 618; Stingily v. Jackson, 140 Miss. 19; Jackson v. Graves, 134 Miss. 63; Union Savings Bank v. Jackson, 122 Miss. 557; Lumber Co. v. Hattiesburg, 132 Miss. 1, 133 Miss. 808; City of Pascagoula v. Val Verde, 138 Miss. 399.

J. W. Conger, for appellee.

The order or resolution of necessity passed at the regular adjourned meeting of the board in June was legal. Green v. Hutson, 139 Miss. 471, 104 So. 171; 19 R. C. L. 885; Culpepper v. Penix City (Ala.), 113 So. 56, at page 58.

The Laws of 1924, chapter 194, do not permit property owners to make the improvement themselves. Bryan v. Greenwood, 112 Miss. 718, 72 So. 728.

The only notice that is required is notice of what is proposed to be done, and this must be done with substantial particularity, which was done in this case. See McComb v. Barron, 147 Miss. 467, 112 So. 875; Dean v. Senatobia, 147 Miss. 467, 112 So. 178; Ch. 194, Laws 1924; Stingily v. Jackson, 140 Miss. 815, 108 So. 178; Swayne v. Hattiesburg, 147 Miss. 244, 111 So. 818; Jackson v. Hart, 117 Miss. 871, 78 So. 780; Bryan v. Greenwood, supra; Vicksburg v. Robinson, 113 Miss. 787, 74 So. 617; Jackson v. Tucker, 136 Miss. 787, 101 So. 708.

Argued orally by W. M. Mitchell, for appellant, and J. W. Conger, for appellee.

OPINION

ETHRIDGE, P.J.

The appellants, complainants in the court below, filed a bill in the chancery court seeking an injunction against the municipal authorities of the town of Duck Hill, Miss., to prevent them from making certain street improvements at the expense of the abutting property owners. The town operates under chapter 99 of the Code of 1906, the general municipal chapter, and the amendments thereto. It was alleged that the board of mayor and aldermen, citing under authority of chapter 194 of the Laws of 1924, had declared their intention of letting the contract for the proposed special improvements, and were advertising for bids for said work. It was further alleged that they had no authority for making the special improvements, as proposed by them, or for letting contracts therefor, for the reason, first, that the alleged resolution declaring the improvements necessary is illegal and void, because the alleged resolution was passed at a meeting of the board not authorized by law; second, that the alleged resolution did not properly locate or describe the portions of the street proposed to be improved; third, because the alleged plans and specifications referred to in said resolution are vague, uncertain, and contradictory as to grades, location, width, and depth of pavement, and materials and quantities thereof required for said pavements, gutters, curbs, and storm sewers proposed to be constructed, and are contradictory to the terms of said resolution; fourth, because the resolution does not advise the property owners and taxpayers of their right to protest against the said proposed improvements, as required by chapter 194 of the Laws of 1924, and because it did not give the property owners an opportunity to make the proposed improvements, nor did it provide for notice to them to do so. It was also alleged that the resolution provided that the improvements should be made by the street commissioner of said town, and does not provide for the letting of contracts therefor; also that the resolution provided for a method of assessing the cost of said improvements against abutting property owners in a manner not authorized by law, in that the width of the street varies at different places, while the cost is based upon the front foot rule.

It is further alleged that a portion of the street proposed to be improved constitutes a part of the Jefferson Davis Highway which is taken over by the state highway commission for maintenance, and that the municipality has no power to improve said street at the...