Swayne v. City of Hattiesburg

• Decision Date: 07 March 1927
• Docket Number: 26206
• Court: Mississippi Supreme Court
• Parties: SWAYNE v. CITY OF HATTIESBURG. [*]

111 So. 818

147 Miss. 244

SWAYNE v. CITY OF HATTIESBURG. ^[*]

No. 26206

Supreme Court of Mississippi

March 7, 1927

(In Banc.)

1. CONSTITUTIONAL LAW. Municipal corporations. Property is not taken without due process by statute authorizing assessment of cost of improvement on abutting property, though exceeding benefits (Laws 1924, chapter 194, section 5; Constitution U.S. Amendment 14, section 1).

Laws 1924, chapter 194, section 5, authorizing the cost of special street improvement to be assessed against the abutting property according to frontage, even as to property so burdened than it is benefited, does not take property without due process in violation of Constitution U.S. Amendment 14 section 1, result coming through exercise of the taxing power of the state which is unlimited.

2. EMINENT DOMAIN. Inhibition against taking property except on due compensation has no application to taxing property Constitution 1890; section 17).

Constitution 1890, section 17, prohibiting the taking or dam of private property for public use except on due compensation being first made to the owner, has no application to taxing of property for public purposes which may result in the property being forfeited for nonpayment of taxes.

3. CONSTITUTIONAL LAW, Due process clause would not be violated by statute authorizing municipal authorities to organize special improvement district without requiring notice (Constitution, U.S. Amendment 14, section 1).

A statute authorizing municipal authorities to organize a special improvement district and assess the cost thereof against the abutting property owners would not violate the due process clause of Constitution, U.S. Amendment 14 section 1, if not providing for notice to such owners of the purpose of such authorities so to do.

4. Municipal Corporations. Manner of publication of notice of purpose to organize special improvement district held controlled by supplemented statute (Laws 1924, chapter 194 section 3; Laws, 1912, chapter 260).

The manner of publication of notice of purpose of municipal authorities to organize a special improvement district and assess the cost thereof against the abutting property owners---for which noticed Laws 1924, chapter 194, section 3 provides without pro-, viding for manner of publication---is controlled by Laws 1912, chapter 260, of which the later statute is supplementary.

5. CONSTITUTIONAL LAW. Property is not token without due process by statute authorizing assessment of incidental expenses of special street improvement (Laws 1924, chapter 194; Constitution U.S. Amendment 14, section 1).

Laws 1924, chapter 194, does not violate Constitution U.S Amendment 14, section 1, because authorizing abutting property to be charged with the engineering and inspection cost of special street improvement and the cost of issuance of bonds to raise funds to pay for the improvement, they being part of the actual cost of the improvement.

ETHRIDGE AND MCGOWEN JJ., dissenting.

APPEAL from chancery court of Forrest county, HON. T. P. DALE, Chancellor.

Injunction suit by Mrs. Jas. A. Swayne against the city of Hattiesburg. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Affirmed.

Hannah & Simrall, for appellant.

We contend that the two ordinances or resolutions adopted by the appellee for the paving of Sixth avenue are void. These two resolutions are authorized by and follow chapter 194, Laws of 1924, which statute also is void and unconstitutional.

I. The statute permits the governing authority of the municipality to make the improvements enumerated in section 2 of the statute in and at its discretion and to tax the cost thereof against the property abutting on the street improved without regard to the question of whether or not the benefits accruing to the property will equal or exceed the cost of the improvement.

The resolutions here in question do not make any finding or attempt to adjudicate that the benefits accruing to the property abutting on that part of Sixth avenue to be improved will be equal to or exceed the cost of making the improvement. The statute does not require the governing authority of the municipality to make any such finding or even to investigate this question.

This feature of the law is in direct conflict with the Fourteenth Amendment to the Constitution of the United States, and section 14, 17, and 24 of the Constitution of Mississippi. See Macon v. Paty, 57 Miss. 378.

II. The two resolutions in question and the statute in question are void because no proper notice was given to the appellant of the city's intention to pave the street. We further contend that chapter 194, Laws of 1924, is also void because it does not provide for the giving of any proper notice to the property owners of the city's intention to pave the street.

We submit that there is just as much evil in leaving the municipal authorities free to fix the notice as there would be in permitting them to proceed without notice. The appellee cannot look to chapter 260, Laws of 1912, to make the notice given in this case valid. Chapter 194, Laws of 1924, provides a complete scheme for the making of local improvements and must stand or fall by itself.

III. The two resolutions adopted by the appellee are void because they seek to charge the appellant and her property with the cost of many items that are not legally chargeable to her or her property.

The only theory on which the property owner can be charged with a part of the cost of paving a street is that that part of the street immediately in front of and adjoining his property is improved and that his property is thereby benefited. We do not think that the paving of street, alley and avenue intersections can come within the class of improvements which may be properly assessed to the property owner.

We are not unmindful of Stingily v. Jackson, 140 Miss. 19, 104 So. 465, in which the court considered and passed upon the validity of chapter 194, Laws of 1924. We respectfully submit that the court was in error in rendering the decision it did in that case.

Flowers, Brown & Hester and D. E. Sullivan, for appellee.

I. It is contended that chapter 194, Laws of 1924, is unconstitutional because it permits the governing authorities of municipalities to make the improvements enumerated in section 2 thereof at their discretion and to tax the cost of same against the property abutting on the street improved without regard to the question of whether the benefits accruing to the property will equal or exceed the cost of the improvement.

The 1924 act leaves the matter as to what streets shall be improved to the discretion of the governing bodies of the municipalities, but in section 3 of the act requires the adoption of a resolution declaring the proposed improvement necessary and giving certain information relative thereto. In determining whether it is necessary for a certain street or part of a street in a municipality to be improved the governing body must take many things into consideration: The size and growth of the municipality; the location of the street and its use; how occupied; the cost and many other things. And in deciding that it is necessary for a certain street or part of a street to be improved the deciding authority takes into consideration the amount of benefits to be received by owners of abutting property. The legislature saw fit, and wisely so, to delegate the matter of determining the need for and the making of special improvements in municipalities to their governing authorities and vested them with full control thereof and as long as there is no question of arbitrary exercise or abuse of discretion by the governing authorities, the matter of benefits accruing to abutting property cannot be gone into. Browning v. Hooper, 70 L.Ed. 153.

It is urged that the cost of that part of the improvement in front of the property of appellant will be in excess of the benefits that will accrue to her property but it is admitted that the benefits accruing to all the abutting property will be greater than the total cost of the improvement. Hancock v. City of Muskogee, 250 U.S. 454, 459, 63 L.Ed. 1081, 1084, 39 S.Ct. 528, is very similar to the present case. See, also, Withnell v. Ruecking Constr. Co., 249 U.S. 63, 63 L.Ed. 479, 483, 39 S.Ct. 200; St. Louis v. W. U. Tel. Co., 149 U.S. 465, 37 L.Ed. 810, 13 S.Ct. 990.

Chief Justice SMITH in Stingily v. City of Jackson, quoted with approval from Spencer v. Merchant, 125 U.S. at page 355, 8 S.Ct. 926, 31 L.Ed. at 767. Macon v. Patty, 57 Miss. 378, does not sustain appellant's position. It simply held that the right to decide that a sidewalk was out of repair was in the board of mayor and aldermen and could not be delegated by them to street committeemen, as was attempted in that case.

The question of accruing benefits is not open to owners of abutting property after the governing authorities of municipalities have declared special improvements necessary, proceeding under chapter 194, Laws of 1924. Smith v. Aberdeen, 25 Miss. 458, settles this question. In the act of 1924, as in all prior statutes on the subject, much discretion is left with the governing authorities of the municipalities. And it is very essential that this be true. It would be impossible for the governing authority to take up separately each piece of property abutting on the improvement and calculate the exact benefits that would accrue to every piece of property as a result of the improvement.

The fact that one piece of property is not benefited as much as some other piece of property abutting on the improvement, or the fact that one property owner thinks that the portion of the cost of the improvement that his or her property will be required to bear is greater than the...