Stingily v. City of Jackson

• Decision Date: 08 June 1925
• Docket Number: 25091,24970
• Citation: 140 Miss. 19,104 So. 465
• Court: Mississippi Supreme Court
• Parties: STINGILY v. CITY OF JACKSON. [*] CENTRAL COTTON OIL CO. v. SAME

104 So. 465

140 Miss. 19

STINGILY v. CITY OF JACKSON. ^[*]

CENTRAL COTTON OIL CO. v. SAME

Nos. 24970, 25091

Supreme Court of Mississippi

June 8, 1925

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suits by C. R. Stingily and by the Central Cotton Oil Company against the city of Jackson. Judgments for defendant, and plaintiffs appeal. Cases considered together on appeal. Judgments affirmed.

Affirmed.

Chambers & Trenholm, for appellant Stingily.

The original bill directly attacks the constitutionality of chapter 194 of the Laws of 1924, in that it attempts to permit such a change in the method of making assessments for street improvements, and in that it attempts to permit all of the cost of improving a street intersection to be assessed against the property abutting on a street to be paved without reference to the fact that such intersection is equally a portion of another street, and in that it attempts to permit indefinite portions of the salaries of municipal employees and other similar items of general governmental expense to be included in the cost of the improvement, and in that it attempts to permit the collection of the delinquent tax penalty upon the entire balance of an improvement assessment upon default in the payment of any one of the installments in which it may be paid.

Appellee's demurrer asserts the plenary power of the legislature in the premises, without limitation, in the matters involved, by the Constitution of the state. Upon the hearing it was agreed that the demurrer should be considered extended so as to include the Federal Constitution. The several assignments of error are all to the effect, that the court erred in not holding the act unconstitutional.

In Nugent v. Jackson, 72 Miss. 1040, 18 So. 493, speaking of these special assessments, the court reaffirmed the case of Macon v. Patty, 57 Miss. 378, to the effect that "These assessments are not within the unrestricted discretion of the legislature, but are subject to many and just limitations, which the courts will enforce."

It is true that the court also stated that it was too late to question the validity of such legislation generally, with the power to levy and apportion the expense of the improvement. It is also true that the settled rule seems to be, as prescribed in Hagar v. Reclamation District, 111 U.S. 705. This rule, however, has some limitations. Prior to the passage of chapter 260, Laws of 1912 while the whole cost of constructing or repairing sidewalks seems to have been a charge absolutely upon the abutting property (Code of 1906, section 3413), that was not so as to the cost of paving streets (Code of 1906, section. 3411). By the act mentioned (chapter 260, Laws 1912) this was made plain (section 16 as to sidewalks and section 4 as to improvements), it being recognized that paving had theretofore been done under several different plans as to payment by requiring that the plan theretofore adopted should not be changed, "to the end that all persons may be compelled to pay for the same character of special improvements on an equal basis."

Under that act it was held in Jackson v. Doxey, 91 So 348, and reaffirmed in Lumber Company v. Hattiesburg, 95 So. 250, that a city could not change from a plan of assessing one-third of the cost of street improvements against the property on each side of the street and paying one-third itself, to the plan of assessing one-half against the property on each side of the street and paying nothing itself. That holding was of course based on the statute, but the court did not say that a city could as a constitutional proposition, make such change in the absence of the statute. Chapter 224, Laws of 1922 (the Act approved March 27, 1922, referred to in the Doxey case but not passed upon) had not been repealed when the Hattiesburg case was decided, and, as it does not directly permit a changing of plan of making assessments, and does directly state that it does not repeal any existing law, but is an additional power, and as the court did not mention it in the Hattiesburg case, it is evident that the court did not consider that it gave a city the power to change its plan of making such assessments.

Chapter 260, Laws 1912, having prohibited a change in plan of assessments, and chapter 224, Laws 1922, not having permitted such change, and the former having directly repealed or amended all then existing laws upon the subject, the two together, with a few minor amendments to the former not touching the questions here involved, constituted all the authority for the making of such improvements and assessments, and prohibiting the changing of the plan first adopted, hence appellee is without lawful authority now to change the plan of assessing the cost of such improvements, unless it be found in chapter 194, Laws of 1924.

Ever since the city of Jackson has been paving streets it has had the power to assess the entire cost of improvements to the abutting property-owner (except that having elected to assess only two-thirds for many years the act of 1912 prohibited it from thereafter changing such plan) unless, when it first elected to pay one-third of the cost out of the general improvement fund, which fund was created by a direct ad valorem tax upon all taxable property in the city, it instituted a scheme of direct ad valorem taxation for the payment of one-third of the cost by the entire taxable property of the city, which scheme cannot now be changed, even under the Act of 1924, because some property would pay more than other property in taking care of that one-third of the cost, contrary to the plain provisions of section 112 of the state Constitution, and not "to the end that all persons may be compelled to pay for the same character of special improvements on an equal basis," as required by chapter 260, Laws of 1912, which was not repealed by chapter 194, Laws of 1924, the latter being: "An Act providing a supplemental, additional and alternative method of making local improvements," in which it is provided that: "This act shall not repeal any other statute relating to the subject-matter hereof . . . ." (Section 12, chapter 194, Laws 1924.)

In other words, appellant's property is now paying its share of the city's one-third of the cost of paving other streets and entire cost of paving street intersections on other streets, and will continue to do so for some years, whereas, if the entire cost of the proposed improvement is assessed against the property on Roseneath street the property-owners thereon, including appellant, will be required to pay not only the present ad valorem tax for such other street paving, but an additional tax for this other one-third of the street which no other property in the city will be required to contribute to. Other property-owners, on other streets, having had appellant's property contribute to a part of the expense of paving in front of their property, will not be required to contribute to a part of the expense of paving in front of his property.

It is true that special improvement taxes, as a general rule, are not controlled by the uniformity and equality clause of the Constitution, except possibly as between the properties involved, but see 37 Cyc. Taxation, 735-737.

The theory of all the decided cases holding special improvement taxes not within the equality and uniformity provisions of state Constitutions, such as is contained in section 112 of the Constitution of Mississippi, seems to be that there is a direct improvement to the property taxed which may not be in proportion to its value. This is very true as applied to drainage districts, where part of the property before drainage may be worthless, and after drainage, the most valuable in the district, while other property in the district may suffer very slightly from lack of drainage, and benefit very slightly therefrom. It would be manifest injustice to require each acre in the district to pay the same tax under those circumstances. But the tax heretofore levied upon appellant's property for paving of other streets was not for the payment of a direct improvement to that property, and was in direct proportion to its value. In other words, the city, by availing itself of the privilege of taxing all property in the city for a portion of the expense of paving one street, has taken the improvement out of that class which should not be affected by the uniformity and equality provisions, and placed it in the class in which it should be. And has not the development of the automobile brought about a situation where it can no longer be said that paving a street is only an improvement to the property upon that street.

We are no longer living in the horse age, when only the main streets, in the shopping districts were paved, but have advanced to the point where the public health, the public safety and the public business almost requires that all streets in a city of more than a few thousand persons be paved. What would the police traffic squad do in a city like Jackson on a rainy day, with several thousand automobiles stuck in the mud? What would its highly efficient automobile fire department do if it stuck in the mud whenever it went into the residence districts in bad weather? How rich would the doctors be, and how ill the population, if the thousands of automobiles upon the streets were stirring up the dry dust of Summer on miles of streets? Verily, "The World Do Move."

If we are correct in our premises that the injection of a direct ad valorem tax upon all property, into the scheme of paying for street paving, by election of the city, removes the whole matter from the strict limitations of an assessment for a local improvement then section 112 of the state Constitution...