Sick v. City of Bay St. Louis

• Decision Date: 19 February 1917
• Docket Number: 19458
• Citation: 74 So. 272,113 Miss. 175
• Court: Mississippi Supreme Court
• Parties: SICK et al. v. CITY OF BAY ST. LOUIS

74 So. 272

113 Miss. 175

SICK et al. v. CITY OF BAY ST. LOUIS

No. 19458

Supreme Court of Mississippi

February 19, 1917

Division B

APPEAL from the chancery court of Hancock county, HON. W. M. DENNY Chancellor.

Suit by Conrad Sick and others against the city of Bay St. Louis. From a decree for defendant, complainants appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

R. L Genin and Harry J. Boyle, for appellants.

The question of law to be decided by this court will be argued in order as set out in the declaration: first, the total assessed valuation of the city of Bay St. Louis is one million six hundred thousand dollars and the bonds attempted to be sold by the city of Bay St. Louis are void in that it is in excess of seven per cent. of the total valuation. And that said intention to issue said bonds were never advertised nor submitted to the people to vote upon as provided by chapters 147 of the Laws of 1914 and 142 of the Laws of 1910 nor section 3419 of the Code of 1906. The city has no right or authority to issue bonds excepting as authorized by its charter or the general laws of the state.

The charter of the city of Bay St. Louis does not authorize the board of mayor and aldermen to issue bonds, such power is obtained by the laws of the State applicable to all municipalities. Under the General laws of the state to wit: Section 3419 of the Code of 1906, chapter 142, of the Laws of 1910, and chapter 147 of the Laws of 1914, the latter two especially provides that all municipalities whether operating under special chapter or under the Code chapter shall not issue bonds including those outstanding for a greater sum than seven per centum of the assessed valuation of the taxable property in the municipality unless authorized by election. It has been agreed that the bonds attempted to be issued by the city of Bay St. Louis is in excess of ten per centum of the total assessed valuation of the taxable property in the city, and the city claims that they acquire the right to issue these bonds without publication and an election thereon because, especially authorized to do so by chapter 287 of the laws of 1916.

The last mentioned act authorized the city of Bay St. Louis to issue two hundred thousand dollars worth of bonds but is silent as to the question of publication and election. The act being silent as to this, it was the evident intention of the legislature, that the city of Bay St. Louis issue these bonds in accordance with the general laws of the state. Having failed to publish their intention to issue these bonds and giving the people the right to vote thereon if they chose was manifestly violation of the law and renders the issue void. Town of Clarksdale v. Broaddus. 77 Miss. 667, 28 So. 955; Green et al v. City of Rienzi, 91 Miss. 429, 30 So. 17.

Second, that the first amendment Exhibit "B" to the bill of complaint is in truth and in fact no amendment to the city charter; that it was proposed advertised and approved by the attorney general and the governor, but was never affirmatively adopted or ratified after its return from the Governor, or entered upon the minute book as adopted. We contend that section 3444 of the Code of 1906, sets out how amendments should be adopted and that it required some affirmative action on the part of board of mayor and aldermen after it was approved by the Governor; that the first action of the board was only a suggestion and not an adoption.

This amendment was never adopted by the city as a part of its organic law and that all acts done and attempted to be done thereunder are void, and that all persons attempting to act thereunder should be restrained. Love v. Major et al., 44 So. 836.

If there is doubt as to its adoption and powers therein conferred, it should be construed most strongly against the rights claimed. City of Hazelhurst v. Mayes, 51 So. 890.

Third, both amendments are void and of no effect as they attempt to place the power of assessment of special taxes in a bond commission, such power cannot be delegated by the board of mayor and aldermen or taken away from the board of mayor and aldermen or the duly constituted assessor by amendment to the charter. The effect of this amendment would be to create two systems of assessments, one by the bond commission for special purposes and one by the assessor for general purposes. And that the bond commission is appointed by the board of mayor and aldermen for a period longer than the term of the board of mayor and aldermen, the said commission being for five years and the board for only two years. The board thereby creates officers and appoints these officers to a term two and a half times longer than the body appointing, binding two future administrations and appointing these officers for a longer term than fixed by the general laws and policy of the state and therefore illegal.

Fourth. The city cannot construct an improvement such as sea walls and arbitrarily fix an amount as a tax upon property where this improvement is constructed.

In considering this case we ask the court to keep in mind the fact that one of the appellants owns property on the beach and the sea wall is to be built on his property, while the other appellant lives and owns property in the rear of the city and his property is to be taxed to pay the city's proportionate part of the cost of the sea wall which in no way protects his property.

We contend that a municipality has no power, even though it attempts to acquire that power by amending its charter, to go on individual property without the consent of and notice of the owner and build thereon a improvement such as a sea wall or any sort of improvement without acquiring title, to or continual control over said property. First, because it would be taking property without due process of law, and, second, if the city did go upon this property by consent and build a sea wall with public funds, the wall would then become individual property, or the property of the parties upon whose land it was built. The city should be restrained from constructing this improvement, until title or such rights are acquired in the proper legal way, as would give the city permanent rights of use and control over this expensive improvement they contemplate.

The right of a municipality to make or damage private property for public use is not different from that of any other person or corporation having the right to eminent domain. City of Jackson v. Williams, 92 Miss. 301, 46 So. 551.

Fifth, that a sea wall is not in its nature a public improvement for which the city can levy a general tax. A sea wall is not used as a side walk or street, or in any way for the use of the welfare of the general public. But it is the building upon the individual beach property a permanent improvement, for which the city authorities are attempting to tax the property holders of the entire city, including those in the rear who receive no direct benefit. Section 17 of our Constitution prohibits the city from arbitrarily saying that the use is public, and whether the use is public or private is a judicial question, which under the pleading and agreed statement of facts is for this court to decide. Cox v. Wallace, 56 So. 461.

Sixth, the city of Bay St. Louis is attempting to issue bonds and construct an improvement upon property of one of the appellants (on the beach) and charge him with approximately fifty per cent. of the cost without giving him notice or opportunity to object to the cost, character and location of the improvement. If such be permitted it would be placing a burden upon appellant without notice or an opportunity to be heard. Not only does the city fail to give him notice of the things above stated, but they fail to first give him notice of their intention to issue bonds to pay for this improvement. After a careful reading of the amendments to the city charter and the agreed statement of facts in this case the court will find that the only opportunity the appellant has to raise his voice in protest of the improvement or sea wall being constructed on his place, is after the work is completed and too late. The property holder who lives in the rear never has an opportunity to object because he is to be taxed to pay the city's pro rata by a general ad valorem tax.

The case of M. P. Bouslog et al. v. City of Gulfport, number 19435 on the supreme court docket recently decided by your honorable court, is somewhat different from this case, as in that case notice of the amount of assessment was not provided for by publication or otherwise, but in this case the city of Bay St. Louis has provided for notice of assessment by two weeks' publication.

In the case of Town of Waveland v. Chas. G. Moreau et al., 69 So. 214, the court held that the property holders should have notice of the amount of betterment tax assessed against them before bonds could be issued, it has been the rule in this state and in other states that property holders should have notice and an opportunity to be heard before placing a special improvement, see, Wilkinson v. Lee, 51 So. 921.

We again ask the court that if the charter of the city of Bay St. Louis gives the property holder the right to be heard only after the work is completed the cost becoming a lien on his property and the assessment only to be made, we ask in all seriousness, what chance will he have.

We submit to the court in conclusion, that if the city of Bay St. Louis is permitted to issue bonds and proceeds as they intend according to the void amendments, they would construct an improvement, in its nature private, upon the land, of the appellant, and fifty per cent. of the cost thereof becomes a lien upon this property; that his property would be illegally...