Union Savings Bank & Trust Co. v. Jackson

• Decision Date: 01 January 1920
• Docket Number: 21047
• Citation: 122 Miss. 557,84 So. 288
• Parties: Union Savings Bank & Trust Co. v. City Of Jackson.
• Court: Mississippi Supreme Court

84 So. 288

122 Miss. 557

Union Savings Bank & Trust Co. v. City Of Jackson.

No. 21047

Supreme Court of Mississippi

January 1, 1920

1. MUNICIPAL CORPORATIONS. Special assessment law for street improvements held not unconstitutional as failing to provide for the redemption of property sold.

Chapter 260, Laws 1912, providing for street and sidewalk improvements, and for special assessment against the property owners adjoining said street, is not unconstitutional for failure to provide a scheme for redeeming property sold at such sales, as section 79 of the Constitution of 1890 confers the right to redeem, subject to legislative conditions, and if the legislature does not impose conditions, the right to redeem may be enforced in equity.

2. CONSTITUTIONAL LAW. Law enabling majority owners to defeat a special assessment does not deny equal protection.

Section 8, chapter 260, Laws 1912, giving the right to resident owners occupying property on a street to be improved by special assessment to defeat the work by a majority of the residents in such street petitioning against the work, is a limitation on the power of the city to make the improvement in the nature of a veto, legislative in its nature, and does not deny the equal protection of the law to nonresidents. It is equal protection of the law, and not the equal right to make laws, that the fourteenth amendment to the federal Constitution provides.

3. CONSTITUTIONAL LAW. Municipal corporations. Law giving hearing on objection to proposed improvement and an appeal to the courts provides due process.

Chapter 260, Laws of 1912, does not deprive one of property without due process of law. Section 9 thereof gives all property owners, whether resident or nonresident, an opportunity to appear and object to a proposed improvement to be made by special assessment, and section 21 thereof gives the right to be heard in objection to the assessment to be made against the owner of the property, and section 22 thereof gives the right of appeal to the courts, and thus constitutes due process of law under the fourteenth amendment to the federal Constitution.

4. MUNICIPAL CORPORATIONS. Where no appeal is taken from a special assessment under the statute, it is final.

Section 22, chapter 260, Laws 1912, giving the right of appeal from a special assessment made, after notice to property, owners, by municipal authorities with right to trial on such appeal, is exclusive, and, if no appeal is taken, the assessment is final and binding on the owner.

5 TAXATION. Sale for taxes does not discharge the lien for special improvement under chapter 260, Laws 1912.

Where a party took a deed of trust after the enactment of a law providing for special assessment for street improvement, and providing that such special assessment shall be a lien superior to all other liens save for county and state taxes the lienholder cannot defeat the lien for special assessment by permitting the property upon which such lien exists to be sold for state and county taxes, and buying such property in at such sale. In such case he takes the property charged with such lien for such special assessment.

HON LAMAR F. EASTERLING, Chancellor.

Suit by the City of Jackson against the First National Bank, in which, after its disclaimer and dismissal as to it, the bill was amended and filed against the Union Savings Bank & Trust Company. Motion by defendant to withdraw its answer and for leave to file special pleas denied and decree for plaintiff and defendant appeals. Affirmed.

Chambers & Trenholm, for appellant.

By way of a short reply to the brief filed on behalf of the appellee, appellant desires to say that it does not deny that a paving lien may by a statute be made superior to all other liens where the other liens arise after the enactment of the law, and for that reason appellant does not contend that the lien of its deed of trust is superior to the paving lien, if the paving lien be valid.

The appellant relies upon the many imperfections of the proceeding, its tax title and the unconstitutionality of the act. On this question of constitutionality appellee based its contentions upon three propositions: (1) That the act in question was unsuccessfully attacked in the Edwards House case (45 So. 15); (2) that appellant having appealed with supersedeas, the question of redemption is not before the court, no sale having been made; and (3) that the lien is enforced through a judicial proceeding, and that therefore a redemption period is not necessary.

Appellee states that this proceeding is identical with the proceeding in the Edwards House case, but overlooks the fact that in that case, the city declares the improvement necessary by an ordinance of January 7th and specified the material to be used in an ordinance of February 4th, and approved the plans and specifications by an ordinance of April 19th, and thereafter gave notice to the occupants of the land to make the improvements to-wit: On April 22nd, the court laid particular stress upon this. In the instant case there is no ordinance specifying what material should be used, and no ordinance adopting the plans and specifications, and no showing that any such plans and specifications were ever prepared. Furthermore, section 3011 of the Code of 1892, was incorporated in the first ordinance in the Edwards House case-by the statement that the city was proceeding thereunder. That section is limited to improvements to be paid for by special assessments, either by special assessment or by use of the general improvement fund, and section 3 is so worded as to make it clear that the Board must by its ordinance signify its intention, as to which method will be used. This the board did not do in the ordinance upon which to base a special improvement at the expense of the general fund, and since the city let a contract for the work before giving notice to the property owners to do the paving themselves, these property owners may have reasonably supposed that no effort would be made to levy special assessments against their property until too late to file protest against the improvement.

In the Edwards House case the court quoted from the opinion in Greenville v. Harvie, 79 Miss. 754, to the effect that if the tax was to be levied, it should be so determined at the very beginning of the proceeding, so that the property owners would have the opportunity to protest.

In the Edwards House case it was shown that the city did not construct the paving until after notice to the property owners, and failure on their part. In the instant case the inference from the record is that the city commenced to construct the paving before giving notice to the property owners to do the work themselves. At all events, it had made a contract for the work before such notice was given.

In the Edwards House case the statute was attacked for double taxation, for the taking of private property for public use without compensation, and upon the "front-foot Rule." In the instant case the sufficiency of the proceeding is attacked for very serious irregularities, and the constitutionality is attacked upon a ground which, so far as we can find, has never been before the court.

It is true that no sale has been made of the property here involved, but it was necessary, to prevent a sale from which the property could not be redeemed, that appellant appeals with supersedeas until the court could pass upon the case.

It cannot be that appellant must take the risk of the loss of its property by a sale from which there is no redemption, in order to have this court pass upon the validity of the proceeding, the constitutionality of the statute, and the effect of the sale for state and county taxes. It must be remembered that appellant was not the owner of this property when this proceeding to improve the street was commenced, had no notice of the proceeding to improve the street when commenced, had no notice of the proceeding, either directly or through the trustee in its deed of trust, had no right of protest either by itself or by its trustee aforesaid and no right to appeal from the assessment for the cost of the improvement. Having become the owner, and finding what it considered a void assessment against the property, it clearly has the right to have the legality of this assessment passed upon by the highest court.

Appellant must confess some surprise at the proposition that because the lien was enforced by a judicial proceeding, that the constitution does not have to be complied with. Stated in another way, this would be to say that the legislature and the courts are supreme, and that the constitution must bow down before them; That the legislature may provide for a sale of land for ad valorem taxes through a court proceeding, without further providing for a redemption. The constitution provides a period during which the property owner may save his money and redeem his property and this right cannot be taken away from him by enforcing a special assessment or any other tax by a judicial proceeding. Perhaps many of the rights of a property owner may be protected in such a proceeding, but the right of redemption is not protected in the proceeding here provided for.

Note the inconsistency of the two propositions: (1) That because an appeal has been taken before sale in the judicial proceeding provided for the enforcement of the lien, the question of whether or not a redemption period is provided cannot be considered, no sale having been had; (2) because it is a judicial proceeding by which all the rights (?) of the property owner can be protected, that a period of redemption is not necessary.

Appellee overlooks the fact that no personal decree can be taken in this case, and that if this court should...