Wilson v. City of Lexington

• Decision Date: 22 April 1929
• Docket Number: 27418
• Citation: 153 Miss. 212,121 So. 859
• Court: Mississippi Supreme Court
• Parties: WILSON v. CITY OF LEXINGTON. [*]

121 So. 859

153 Miss. 212

WILSON v. CITY OF LEXINGTON. ^[*]

No. 27418

Supreme Court of Mississippi

April 22, 1929

Division A

Suggestion of Error Overruled May 27, 1929.

APPEAL from circuit court of Holmes county, HON. S. F. DAVIS, Judge.

The city of Lexington made an assessment against the property of G. A. Wilson over his protest, and he appealed to the circuit court, and, from the judgment entered against him, he appeals. Reversed and rendered.

See also, 119 So. 795.

Reversed.

Boothe & Pepper, for appellant.

When the mayor and board of aldermen came to make the assessments against the property owners on Yazoo street, what do we find? That on June 10, 1927, a notice signed by E. T. Neilson, mayor, issued to J. N. Hall, J. G. Herbert, J. K. Rhyne, G. S. Beall and W. P. Hammett, aldermen for the city of Lexington, Mississippi, in part is as follows: "You are hereby notified that by reason of the illness of two members of the board of aldermen, and the absence of another member of said board, on the 7th day of June, 1927, the regular day of meeting, no regular meeting was held, and that in order to transact the important business of said city, a special meeting of the mayor and board of aldermen of city of Lexington, Mississippi, will be held at three o'clock, p. m. on Saturday, the 11th day of June, 1927, at the office of the mayor and city clerk, in the Beall Building, the same being the regular place of meeting. The matters of business to be acted upon are as follows: To pass, adopt, and approve ordinances, levying special assessments against certain property on Tchula street, Carrollton street, Depot street, Boulevard street, Spring street, and Yazoo street, for special improvements on said streets, and notice of such assessments and fixing a time for hearing protests against and objections to said special assessments." (Other matters of business were listed but they are not material to this issue.) This notice of special meeting of the mayor and board of aldermen was doubtless attempted to be made under sec. 6929, Hem. Code 1927. This notice of special meeting, does not appear in the minutes of the mayor and board of aldermen of Saturday, June 11, 1927. There is no signature thereto except that of the mayor; it is not served by the marshal or any policeman, on any member of the board; it does not specify that at the time and place the subject-matters of business to be acted upon. It is true that it states that it will consider special assessments against certain property on certain streets for special improvements, but does not state whether it is sidewalks, white way, paving, drainage or what not, and it is not copied into nor made part of the minutes of the mayor and board of aldermen of June 11th.

The whole proceeding in assessing the alleged proportional part of the improvements to appellant and other property owners as set forth in this attempted special meeting is void.

Our court has clearly held that a failure to strictly follow the provisions for special meetings, such as the attempted special meeting of June 11, 1927, and of July 6, 1927, the latter meeting was not even attempted to be called, but was held under some kind of an agreement between the mayor and board of aldermen, the agreement does not appear in the record and the public of course have no notice of it. Kidder v. McClanahan, 126 Miss. 179; Corinth, etc., Highway v. Carothers & Co., 92 So. 696; Green Co. v. Dickson, 76 Miss. 794.

Ruff & Johnson and Green, Green & Potter, for appellee.

Counsel attack the ordinance of June 11, 1927, on the ground that the same was illegal. The record specifically shows that a call was directed by the mayor to J. M. Roach, marshal, who executed the same before eleven o'clock, June 11, the meeting to be held at three-thirty o'clock, Saturday, June 11. The notice recites the absence of certain aldermen from the city. The aldermen not served were in fact absent, and the question presented for determination in this cause is when these two aldermen were in fact absent, and were not served by reason of being so absent, in a town the size of Lexington, where everybody knew they were not served because they were absent, and where they later participated in each and everything done, is it possible to annul this ordinance and that then and there done in virtue, not of there not being a valid meeting, but merely in virtue of said meeting not affirmatively appearing in all particulars to be valid?

Counsel rightly relies on Kidder v. McClanahan, 126 Miss. 179, 88 So. 508, but there it affirmatively appears that the service was had precisely at the hour of the meeting, thus affirmative violation was patent on the face of the proceeding; but here two aldermen were not served, the reason thereof in fact was they were not in the city. That fact was not recited in the return. See Briggins v. Chandler, 60 Miss. 862; Coburn v. Crittenden, 62 Miss. 125; Tierney v. Brown, 65 Miss. 570; City of Greenwood v. Jones, 91 Miss. 535; Brown v. British & American Mortgage Co., 86 Miss. 388; First National Bank v. Thompson, 85 Miss. 261; National City Bank v. Iron Co., 147 Miss. 747, 113 So. 340; Bester v. Inter-County Fair, 135 Wis. 431; State ex rel. Hopman v. Superior Court (Wash., 1915), 153 P. 317; Clark v. Bankers Accident Co. (1914), 96 Neb. 385; Perrine v. Knights Templar's & Mason's Life Indemnity Co., 71 Neb. 267; Fulton v. Ramsey et al. (1910), 67 W.Va. 321; McKillip v. Harvey (1907), 80 Neb. 266; Winter v. Union Pkg. Co. (Oregon, 1908), 93 P. 931; Cloise v. Justice's Court of First Judicial Township (Calif., 1909), 103 P. 319; Merchants Heat & Light Co. v. Clow, 204 U.S. 286, 51 L.Ed. 488; Kelly v. Brown, 310 Ill. 319, 141 N.E. 743; Reynolds v. Wilkerson, 119 Miss. 590, 81 So. 280; See also ch. 145, Law 1928. This validation statute is most general in its terms.

Boothe & Pepper and J. Morgan Stevens, in reply for appellant.

The cross-examination of the city clerk shows that at the time this appeal was taken the name of the marshal did not appear on the return, and that the city clerk entered his name on the minutes himself, within the past two or three weeks, just preceding the date when this evidence was offered. We take it that a municipal body cannot speak except by the record, and therefore the record of this call meeting affirmatively shows two things: First, that there was no return by the marshal duly signed by him, and, second, that the purported return embraced only three aldermen and not the five. See City of Jackson v. Hart, 117 Miss. 871, 78 So. 780; City of Jackson v. Greaves, 134 Miss. 63; Canton v. Davis, 145 Miss. 625; City of Jackson v. Doxey, 128 Miss. 618, 91 So. 348; Firm Lumber Co. v. City of Hattiesburg, 132 Miss. 1, 95 So. 250; Firm Lumber Co. v. Hattiesburg, 133 Miss. 808, 98 So. 145.

Argued orally by A. M. Pepper and J. Morgan Stevens, for appellant, and Garner W. Green and H. H. Johnson, for appellee.

OPINION

MCGOWEN, J.

This is an appeal from an assessment made by the appellee, the city of Lexington, against the property of the appellant, G. A. Wilson, on Yazoo street in said city; the mayor and board of aldermen having levied the assessment over the protest of the appellant, who appealed therefrom to the circuit court, where the contention of the appellee was sustained and judgment entered against the appellant, and, from this judgment appellant appeals to this court.

In 1923, the city of Lexington, by resolution of its mayor and board of aldermen, took the necessary steps to direct the special improvement of Yazoo street and Court Square. Pursuant thereto, a contract was let to one Finch to improve this square and street, but one of the provisions therein was, when the cost of such improvements reached in slight excess of the amount of twenty-five thousand dollars, the city reserved the right to terminate the contract and proceed no further with the paving. The proceedings of this board at this time, were conducted under chapter 260, Laws 1912. During the year 1924, Finch completed the paving of Court Square; thereupon the city exercised its option and directed that the work be proceeded with no further, and Yazoo street was not paved pursuant to the order made in 1923, and the provisional contract referred to.

The resolutions of the board of 1923 provided that the paving of Court Square and Yazoo street should be at the expense of the municipality, and the board ordered bonds issued for that purpose.

In May 1926, the mayor and board of aldermen passed a resolution, declaring its intention to pave Yazoo street beginning at the Square and extending some distance south of the Yazoo & Mississippi Valley Railroad, the city to pay one-third, and the property owners two-thirds, of the cost thereof. On June 1st, the appellant, Wilson, and others, filed objections to the above paving project, setting up the action of the board in May, 1926, and on June 4, 1926. Thereupon the board rescinded or repealed the ordinance as to their intention to pave Yazoo street. On June 11, 1926, the board passed its resolution of intention to pave Yazoo street from the "Square" to a point nine inches south of the Yazoo & Mississippi Valley Railroad under and by virtue of chapter 194, Laws 1924, the municipality to pay one-third, and the abutting property owners two-thirds, of the cost. On July 2, 1926, the day set for the hearing of any protests against such project, the board met again, and, no protest being filed, it passed the resolution to pave that part of Yazoo street heretofore mentioned. Thereafter, on July 6th, the contract was let to Finch. Although the contract provided for a bond to be given by the contractor for the performance of the work, none appears to have been taken. The paving on Yazoo...