Edwards Hotel & City Street Railroad v. City of Jackson

51 So. 802, 96 Miss. 547

Opinion

Mayes, T.,

delivered the opinion of the court.

This suit is begun by the city of Jackson, and its object is to' compel the street railroad company to pave between and two feet on each side of the rails. The street railroad company resists this effort on the part of the city on the contention that the city has no.authority to compel it to pave as above, because it has exempted the street railroad company from this requirement for ten years, beginning from 1906, and because the city has no power to compel the railroad company to make this street improvement. A bill filed by the city, praying for a decree requiring the company to make the improvement, and also praying for a mandatory injunction requiring the company to obey the decree, was demurred to by the railroad company, and the demurrer overruled, and an appeal allowed from this decree for the purpose of settling the principles of the case. We shall not undertake to.fully state all the allegations contained in the bill of complaint, but will simply refer to those matters of fact which are necessary to explain the decision. There are a few controlling facts which we deem necessary to emphasize. The city abandoned its special charter during 1892, and that -year came under the provisions of chapter 93, Code 1892, which provides a general charter for all municipalities in the state operating under same, and prescribes the powers, duties, and rights of all cities operating thereunder. Chapter 93, Code of 1892, by almost a literal rescript, is now chapter 99 of the Code of 1906. When we refer to the Code, we shall cite the Code of 1892, since the questions originated while that Code was in effect.

In 1898, and under tbe law as it was in tbe Code chapter, tbe street railroad company obtained its charter from tbe city of Jackson, and, of course, only such charter powers as tbe city ■could lawfully cede could be conferred on tbe street railroad company by tbe grant. Tbe street railroad company was bound to take its charter subject to all tbe limitations imposed upon tbe mayor and board of aldermen in tbe exercise of their powers. When tbe street railroad company procured its charter section 2925, Code 1892 (section 3:316, Code 1906) provided that “the" mayor and board of aldermen of every city, town, and village •shall 'have tbe care, management, and control of tbe city, town, •or village, and its property, etc., and shall have power to enact ordinances for tbe pur-poses hereinafter named,” etc., and tbe power is also given by this section for tbe mayor and board of aldermen “to alter, modify and repeal” ordinances. Tbe following sections of tbe Code then proceed to enumerate tbe powers granted to the cities, towns, etc., to be held and exercised by tbe mayor and board of aldermen as trustees for tbe cities. Section 2947 authorizes tbe mayor and board of aldermen “to exercise full jurisdiction in tbe matter of streets, sidewalks,” etc., “and to repair, maintain, pave, sprinkle,” etc. These powers delegated to tbe city, to be exercised through the mayor and board of aldermen, were given for tbe benefit of tbe city, and are to be exercised in tbe discretion of tbe mayor and board of aldermen in power at tbe time their judgment dictates tbe necessity. These provisions of tbe municipal charter write themselves into all grants made by it to any corporation or association beyond tbe power of any mayor and board of aldermen to obliterate. Tbe statute gives each mayor and board of aider-men the power to exercise full jurisdiction in tbe matter of streets, etc. Null jurisdiction comprehends tbe doing of everything necessary to tbe development of tbe convenience and safety of the streets, and it cannot be doubted in this modem ■day that paving streets accomplishes ■ both. Each mayor and board of aldermen cannot exercise full jurisdiction if predecessors may tie tbeir bands in tbe matter of requiring to be done any ^matter .wbicb is comprehended in tbe exercise of full jurisdiction ; tbat is to say, eacb mayor and board of aldermen bas a right, in tbeir discretion, to say when paving is necessary. It is a discretion wbicb vests in them at tbe time they choose to-exercise it; tbat is to say, tbe right vests in tbe municipality to exercise it through tbe mayor and board of aldermen. It is a right in tbe municipality, belonging to tbe inhabitants, and exercised through tbe constituted authorities. No franchise can be granted giving powers in contravention of tbe charter rights-of a city. Section 2925, Code 1892 (section 3316, Code 1906), itself provides tbat tbe mayor and board of aldermen can pass-no ordinance repugnant to tbe laws of tbe state, and if one mayor and board of aldermen can take away a part of tbe right' to exercise full jurisdiction as to the streets, it would, to that extent, abridge tbe right wbicb vests in tbe city to have its-, mayor and board of aldermen exercise full jurisdiction at all times.

In 1902, acting under sections 3011, 3012, Code 1892 (sections 3411, 3412, Code 1906), tbe mayor and board of aldermen declared tbat tbe paving of tbe streets was necessary and proceeded to enact ordinances requiring tbe street to be paved, assessing tbe abutting property owners for part of tbe costs of same. Tbe street to be paved was a street on wbicb tbe street railroad company was at tbat time and is now operating. After these ordinances were adopted, tbe city proceeded to pave tbe street and to assess tbe abutting property owners. Tbe validity of these ordinances, wbicb are tbe same as involved in tbe present case, was drawn into- question in the case of Edwards House Company v. City of Jackson, 91 Miss. 429, 45 South. 14, and tbe ordinances sustained. Tbe paving now sought to be required is the paving of different portions of tbe same street and involves tbe same ordinances. There is no complaint on the- part of tbo street railroad company tliat tliev are being subjected to any unjust or unreasonable apportionment of tbe cost. Tbe contention is that tbe city bas contracted away its power to require tbe street railroad company to pave. We do not think that tbe contention of the railroad company that the city exempted it from tbe requirement as to paving in its original charter of 1898 is sustained, when the charter is inspected. As a matter of fact, we do not deem it necessary to discuss this feature of tbe matter, however, since it is our view that, if the city had undertaken to do this it would not have had the power under the law as it existed at that time and now. Tbe only sections of tbe charter under which this contention could arise are sections 7, 15, and 16, and when these sections are examined it would require tbe reversal of all rules of statutory construction applying to exemption claims to so hold. Exemptions •of any character can only be claimed when the legislative intent is expressed in tbe clearest and most unambiguous terms. Applying this rule to this charter, and the contention necessarily falls before it. Railroad Co. v. Thomas, 65 Miss. 553, 5 South. 108; Ice Co. v. Greenville, 69 Miss. 86, 10 South. 574; State v. Simmons, 70 Miss. 485, 12 South. 477. We do not deem it necessary to enter into any analysis of sections 7, 15, and 16 of the charter of the street railroad company, since it is our view that, even if tbe city bad undertaken to grant this exemption, it •could not have done so. If we were to hold otherwise, one set of city officers could defeat the powers delegated to the city and preclude a succeeding set of officers, however necessitous might be tbe cause, from ever exercising the right to require any particular street paved. It is essential to a full jurisdiction of streets that the mayor and board of aldermen, whose discretion is called into play, shall have the power to do those things which are necessary to perfect a street for public utility. Tbe powers of a municipality are given to it, not to tbe particular men who hold the office. They are for the benefit of the inhabitants of the municipality.

It would seem, from what we have said in the foregoing part of this opinion, that it is unnecessary to discuss whether or not the mayor and board of aldermen did enter into a contract in 1906 relieving the street railroad company from further duty to pave. It is manifest that the purpose of the former suit was to collect from the street railway company something over $10,000 claimed to be due the city for paving that had already been done, and in so far as this claim is concerned it was settled in the compromise agreement; but that is as far as the mayor and board of aldermen had any authority to go. The parts of the streets involved in this litigation were not involved in that, and this suit is about a different subject matter. As before stated, the city had no authority, through its mayor and board of aldermen, under the very terms of the charter, to relieve the street railroad company of its duty to do this paving, and any contract looking to this was ultra vires. There seems to be little dissent from the view that an ultra vires contract made with the agents of the city cannot operate as an estoppel on the city. The mayor and board of aldermen are the mere agents of the city, having power to bind the city only within the scope of authority delegated to them. If a city could be estopped on an ultra vires contract by its mere agents, there would be little force in charter restrictions on the power of the agents of the •city to bind it, since they could be easily destroyed in this way. All parties dealing with the city must take note of its charter and the power of its officers. It is a matter of law, and the citizens whom they represent cannot be prejudiced by their unauthorized and ultra vires acts. The powers are the city’s powers, and not those of the officers who happen to represent the city. Newbery v. Fox, 37 Minn. 141, 33 N. W. 333, 5 Am. St. Rep. 830; Rens v. Grand Rapids, 73 Mich. 237, 41 N. W. 263; Pettis v. Johnson et al., 56 Ind. 139; Bogart v. Lamoth Township., 79 Mich. 294, 44 N. W. 612; Cooley, Const. Lim. (6th ed.) 261; Abbott on Munic. Cor. vol. 1, § 259. In the absence of any special provision in the charter of the street rail road company requiring it to share its burden of paving the street wbicb it occupies with its road, it is well settled by the weight of authority that the street railroad company, as well as any other property owner on the street, may be required to pay its pro rata, part of the cost. It may be that the character of property belonging to the' street railroad is somewhat different from that of an abutting owner, but that a street railroad company has property rights in a street which are subject to local assessment is supported by an almost unanimity of authority. They are abutting property owners in the sense of local 'assessment laws. They make a higher and a different use of the street from that of any other occupant of same. Their franchise is valuable, and often exclusive. Gray’s Limitation on Taxing Power, §§ 1925-1933.

But this case .must be reversed and the bill dismissed, for the reason that at present the city has no right to institute this suit,, since there is now no debt owing the city, because no paving has been done by it. We do not think there can be any good reason for drawing any distinction between the rights of a street-railroad company and those of any other property owner in the street, when it comes to the enforcement of this local assessment. The street railroad company is entitled to its right to lay the pavement for itself, and does not become liable for the cost of pavement until after the city has notified it to lay it and it has failed and the city lays the pavement. • In short, the city has not done what is required of it before it brings this-suit to recover the amount which will be owing it for paving this street; and until it has done this, and paves this street, it can have no recourse against the abutting -property owner. The city only has the power to require the property owner to do the paving in the first instance, so as to enable the property owner to do it himself if he so desires. If. he fail on notification, then the city may do the work itself and assess the cost against him; but, until it has done so, it has no standing in court. Reversed and hill dismissed.