Duncan v. City of Grenada

64 So. 834, 106 Miss. 874

• Court: Mississippi Supreme Court
• Decided: March 15, 1914
• Status: Published

Opinion

Reed, J.,

delivered the opinion of the court.

The city of Grenada is under a special charter. An amendment was made to the original charter in 1913, in manner required by law, whereby all of chapter 260 of the Laws of Mississippi of 1912, except the title thereto and the first paragraph of section 1, stating what acts and Code sections are therein amended, was made a part thereof. The mayor and board of aldermen of Grenada, after the charter was amended, adopted a plan for paving certain streets in that city. By this plan the abutting property owners on each side of the street are to be assessed with the paving of one-third of the street on their respective sides, and the city is to pay for the middle third. The city was duly authorized, by an election, to issue bonds in order to provide the necessary funds for the payment of its pro rata share of the expense of the paving. The bill in this case was filed by appellant, a citizen and qualified elector of the city, for the purpose of obtaining an injunction restraining the officers of the city from issuing the bonds. The chancellor sustained the motion to dissolve the temporary injunction, which had been granted, and dismissed complainant’s bilk From this action of the chancellor, the appeal in this case was taken. '

Counsel for appellant, in his brief, states that the only question presented in this appeal is “whether, under the law, the city of Grenada has the right to pave the streets according to the plan adopted. ’ ’

It is contended that the act of 1912, which has been made by amendment a part of the charter of Grenada, provides two methods of improving the streets, one at the expense of the municipality, and the other at the expense of the abutting property owners, and that the city has no power to make a division of this burden.

We see nothing in the charter to condemn the plan adopted by the city. On the other hand, it is clear that the mayor and board of aldermen had full power and authority under the charter as amended to apportion the expense of paving to the abutting property owners and to the city by the plan adopted.

The power of the municipality to order special improvements is shown in the following, being the second paragraph of section 1 of chapter 260 of the Laws of 1912, now a part of the city’s charter: “The mayor and board of aldermen of any municipality in this state shall have power, in their discretion, to require special improvements to be made on the whole or any part of any public street, avenue, lane or alley within the municipal limits; and the mayor and board of aldermen shall have the power to tax the cost of the special improvement on the property owners whose property adjoins any street, avenue, lane or alley, or any part thereof, ordered to be improved. The cost of the special improvement may be assessed against the adjoining owners in a manner to be hereinafter specified.”

By the charter as amended the mayor and board of aldermen are given the powers to decide as to special improvement, to order same, and' require the payment therefor in the manner provided. They are further, by the provisions of the charter, made the judges, not only as to the necessity for the special improvement, but also whether or not the same should he paid for out of the general improvement fund, and whether or not there should he assessment against the property owners. Uniformity in the method is required. A special tax may be levied. Pull provisions are made for all proceedings relative to the method of doing the work of paving, ascertaining the cost thereof, fixing the assessments against the property owners, the amount of which is to be determined by the board, fixing the time of payment, and providing for the collection of the amounts assessed. We see nothing in these provisions to prevent the city from making such an apportionment of the expense of paving as made by the plan adopted.

Practically the same method and apportionment of the expenses of paving a street adopted in this case is shown in the case of Edwards House Company v. City of Jackson, 91 Miss. 429, 45 So. 14. The court, in deciding that case, approved the method whereby the expense of paving was apportioned among’ the abutting’ property owners, the city and the street car company. The provisions of the law applicable to the question now before us were contained in the Code sections when the city of Jackson constructed the pavement involved in the above case, and they are substantially the same as those in chapter 260 of the Acts of 1912, now a part of the charter of the city of Grenada. We approve the decision in that case.

When the legislature in 1912 enacted the statute, chapter 260, which, now, as a part of the charter of Grenada, gives authority for the paving of streets, and the charging and collection of the expense therefor, it did so with full knowledge of the construction of the law as made in the Edwards House case.

The acts of the mayor and board of aldermen in providing the method of making the improvement, apportioning the cost, and issuing the bonds were clearly within their power and authority. We decide that “the city of G-renada has the right to pave the streets according to the plan adopted.”

Affirmed.