City of Greenville v. Harvie

79 Miss. 754

• Court: Mississippi Supreme Court
• Decided: October 15, 1901
• Status: Published

Opinions

Terral, J.,

delivered the opinion of the court.

Tt appears from the record in this case that appellee, a citizen of Greenville, owned a lot in said city, namely, lot 15, on the west side of Walnut street, between Main street and Central avenue; that on the lOth day of October, 1895, the city council of Greenville, in pursuance of § 3011, aim. code 1892, by ■resolution declared that “the hereinafter mentioned and described improvements and repairs of sidewalks in said city are necessary, and to this end notice is hereby given that the city council will cause to be constructed or repaired the sidewalks of said city, and that said improvements or repairs shall be made on Walnut street, on west side, from Main street to Central, of brick or concrete, nine feet wide.” In February, Í897, the street supervisor of said city notified Mrs. TIarvie to build said sidewalk. Thereafter, in 1898, Mrs. TIarvie having declined to make said sidewall!;, the city constructed the same at a cost of $120.25. Thereafter, in August, 1899, the city council of Greenville ordained that said lot 15 be assessed for said $120.25, and declared a lien on said lot to exist in • favor of said city for said sum of money, and directed the city attorney to enforce said lien for the collection of said debt. The city, setting out in its bill the above facts, impleaded Mrs. TTarvie in the chancery court of Washington county,- and 'demanded a decree for said $120.25, and for a condemnation of said lot 15 for the satisfaction thereof. Mrs. ITarvie demurred to said bill. The demurrer was sustained, and the city appealed.

The objection we find to the proceeding of the city of Green-ville is," that the city council did not specify, in advance of the work being done, that the owners of the lots abutting on Walnut street should bear the whole expense of building said sidewalk. In fact, to our apprehension of the matter, the city, by its ordinance, indicated its purpose to construct this sidewalk at the sole expense of the city. In Nugent v. City of Jackon, 72 Miss., 1040 (18 So. Rep., 493), the ordinance there upheld expressly declared that the owners of the property abutting on the street should bear the entire expense of building the sidewalk. No such purpose, as we think, was inferable from the ordinance in this case. On the contrary, we think the fair inference is that the city of Greenville will make the sidewalk upon its sole credit. If the terms “special improvements” of themselves import that the owners of abutting lots shall bear the whole expense of building.sidewalks, then the question is settled. We know of no dictionary or book of definitions of any sort that defines the phrase “special improvements” as meaning that the entire expense of making sidewalks shall be borne by the proprietors of lots along which they are constructed. The contrary is manifest from 2 Dill, Mun. Oorp., sec. 752 et seq.; Cooley, Tax’n (2d ed.), 637 ei seq. If the tax is to be levied upon abutting lot owners, we think that it should be so determined at the very beginning of the proceeding, so that the property owners may have opportunity to protest against the improvement, and so protect themselves against the expense. They would have no occasion, or at least reason, to protest if the cost was to be borne only in part by themselves. Nor these reasons Mr. Justice Calhoon and I are of opinion that the decree of the court below should be affirmed, no't merely because five days’ notice is not averred to have been given, for evidently that was not the ground of the decree, but because the ordinance of October 10, 1895, is fatally and irremediably defective.

Affirmed.