Webb v. City of Meridian, 44460

• Decision Date: 27 February 1967
• Docket Number: No. 44460,44460
• Citation: 195 So.2d 832
• Parties: Thomas H. WEBB et al. v. CITY OF MERIDIAN, Mississippi et al.
• Court: Mississippi Supreme Court

Page 832

195 So.2d 832

Thomas H. WEBB et al. v. CITY OF MERIDIAN, Mississippi et al.

No. 44460.

Supreme Court of Mississippi.

Feb. 27, 1967.

Witherspoon & Compton, Floyd, Cameron, Deen & Prichard, Meridian, for appellants.

Dunn & Singley, Edwin A. Dunn, Ethridge, Minniece, Bourdeaux & Jones, Meridian, for appellees.

ETHRIDGE, Chief Justice.

This case involves two questions: (1) Whether a municipality has the power to purchase the equipment necessary to mix for itself the ingredients of a 'hot-mix' asphalt for paving purposes, and to apply the asphalt to its streets; and (2) if so, whether the bill alleges sufficient facts which if true would justify judicial interference for bad faith or abuse of discretion by the city authorities. We hold that the city has power to purchase this equipment and pave its own streets; and an injunction is not justified.

The original bill of complaint in this taxpayers' suit sought to enjoin the City of Meridian and its mayor, councilmen, and city manager (defendants-appellees), from expending public funds to purchase an 'asphalt plant,' or equipment necessary to mix the ingredients of asphalt for paving purposes, and from applying it to the city's streets. The complainants-appellants are Thomas H. Webb, president of Mid-States Paving Company, James W. Buchanan, Jr., and Sam Finley, Inc., also engaged in the paving business. The Chancery Court of Lauderdale County sustained a demurrer, denied complainants' motion for leave to amend the original bill, and dismissed the action.

I.

The original bill of complaint charged: The electorate of the city approved a bond issue for constructing bridges and improving and paving streets. The city council advertised for bids from private companies for the furnishing of labor and materials for the street improvement program for which the bonds had been approved, but after receiving and considering them, it rejected all bids as being too high. The city was not authorized by its charter or statute to purchase the equipment to mix and produce asphalt, and to lay it on its streets. Defendants computed the cost of asphalt to the city at $5.05 per ton. The low private bidder was Sam Finley, Inc., at $7.72 per ton. After accounting for a number of expenses not considered by the city, defendants' cost per ton would be not less than $7.05 per ton, and the most defendants could hope to save would be something less than 67 cents per ton of asphalt, instead of $2.67 per ton, which defendants had represented they could save the taxpayers. Defendants have acted 'hastily, capriciously, arbitrarily, or unwisely, and have evidenced a complete lack of knowledge and competence in the field of asphalt mixing, manufacturing and placement. * * * ' The proposed actions would be a wrongful misappropriation of public funds, and a reckless and wanton disregard therefor. It was stipulated that no proceeds of the bond issue would be used for this program.

In brief, the pleadings presented squarely the issue of whether the city has the power to prepare its own paving materials, to acquire the equipment or plant necessary to do that, and to lay the asphalt on city streets. We conclude that it has.

The original statutory charter of the City of Meridian gave its governing authority 'exclusive jurisdiction over the subject of roads, streets, alleys, and bridges, within the corporate limits * * *.' The board could designate persons 'liable to road duties, * * * to work on the roads, streets and bridges, within the said city * * *.' Miss.Laws 1859, Ch. CCCLXL, at 539, 543.

Mississippi Code Annotated section 3374-112 (Supp.1964), provides:

Every municipality of this State shall be a municipal corporation and shall have power to sue and be sued; to purchase and hold real estate, either within or without the corporate limits, for all proper municipal purposes, including parks, cemeteries, hospitals, schoolhouses, houses of correction, waterworks, electric lights, sewers, and other proper municipal purposes; to purchase and hold personal property for all proper municipal purposes; to sell and convey any real and personal property owned by it, and make such order respecting the same as may be deemed conducive to the best interest of the municipality, and exercise jurisdiction over the same; to make all contracts and do all other acts in relation to the property and affairs of the municipality necessary to the exercise of its governmental, corporate and administrative powers; and to exercise such other or further powers as are otherwise conferred by law.

Mississippi Code Annotated section 3374-129 (1956), states:

The governing authorities of municipalities shall have the power to exercise full jurisdiction in the matter of streets, sidewalks, sewers, and parks; to open and lay out and construct the same; and to repair, maintain, pave, sprinkle, adorn, and light the same.

Under these statutes the city is given authority to purchase, hold, and sell real and personal property 'for all proper municipal purposes.' It has 'full jurisdiction' over streets, and can open, lay out, construct, repair, maintain and pave them. These definitions of municipal authority constitute the equivalent of an express grant of power to purchase equipment necessary to mix paving materials to be used on the city streets. Borgelt v. City of Minneapolis, 271 Minn. 249, 135 N.W.2d 438 (1965), is a well-reason opinion holding that the City of Minneapolis had authority to acquire and operate an asphalt mixing plant to be used only for the preparation of materials used by the city itself on its streets. It is pertinent here.

The purchase by a city of equipment for mixing asphalt to be used on its own streets does not constitute the entry by local government into a business. The product of the mixing would be used only on municipal streets. It would not be sold or utilized elsewhere in competition with private business. Certainly the building, repairing, and maintenance of city streets is a legitimate public purpose. The statutes expressly recognizes that fact. A municipality has the power to pave, construct and maintain its streets. The method by which this power is exercised is not defined. Accordingly, if a power is conferred and the law is silent as to the mode of exercising it, municipal authorities are clothed with a reasonable discretion to determine the manner in which it shall be...