Edwards House Co. v. City of Jackson

45 So. 14, 91 Miss. 429

• Court: Mississippi Supreme Court
• Decided: October 15, 1907
• Status: Published

Opinion

Mayes, J.,

delivered the opinion of the court.

This is a proceeding begun by the city of Jackson against the defendant company, under § 3012 of the Code of 1892, by petition in the chancery court; the object being to establish a lien on the property of defendants fronting on Capitol street in the said city, for the sum of $708.43, claimed to be due the city of Jackson for special improvements made by the city on the street whereon this property fronts, and the city having proceeded under § 3011 of the Code of 1892.

The facts are substantially as follows: viz.: On January 7, 1902, the city of Jackson, acting through its mayor and board of aldermen, proceeding under § 3011, passed a resolution wherein, among other streets named, they declared that the paving of Capitol street was necessary, particularly describing the portions of the street necessary, in their judgment, to be paved, and the property of defendant company fronted on the street designated. The resolution specifically stated that the mayor and board of aldermen were proceeding under § 3011 of the code, providing for special improvements, and gave notice to the owners of property fronting the street to be improved that they should file their protest within twenty days from the passage of the resolution if they so desired. The resolution, by order of the board, took effect at once, but was duly published for three weeks, as required by § 3006 and 3011 of the Code of 1892. No protest was ever filed to the effectuation of this declared necessity for paving the street in question by any person. After the publication of this resolution, and on February 4, 1902, the mayor and board of aldermen passed a' second resolution, which is as follows: “Whereas, on the 7th day of January, A. D. 1902, the mayor and board of aldermen of the city of Jackson, by an ordinance or resolution of that date, duly entered of record on their minutes,- declared the paving of certain parts of Capitol, State, Pearl and President streets in said city to be necessary, and have caused said ordinance or resolution to be published, that is to say, for three weeks in the Daily Clarion-Ledger, a newspaper published in said municipality, which publication is adjudged to have been duly made; and, whereas, none of the resident owners of the property on said streets, or on any or either of them, or on said parts of said streets, or on any or either of said parts, has up to this time filed a protest in writing against said improvement with the clerk of said municipality, ” etc. By this ordinance, though the entire ordinance is not set out in full, the expense of this special improvement was apportioned between the Jackson Electric Railway Company, it being required to pay the cost of paving that portion of the street lying between its tracks and rails, covered by a space two feet wide on the outside of each rail and adjoining same, and property owners abutting the street were required to bear the burden of paving one-sixth of the width of the street, by paying for same or laying the pavement themselves. This ordinance specified vitrified brick as the material out of which the pavement should be constructed. This ordinance also directed the city engineer to make report to the board as soon as practicable, showing the separate pieces of real property abutting on the parts of the street to be paved, stating the owner and occupants of each, the width of the street in front of or adjoining each piece, and all data that would enable the board intelligently to levy a special assessment under § 3011 and 3012 of the Code of 1892. This resolution was made to take effect at once — that is, from the date of its passage on February 4, 1902 •— and was duly promulgated and published.

After the ordinance of the 4th of February, 1902, and before April 19, 1902, the city engineer, in compliance with the direction of the mayor and board of aldermen, prepared the plans and specifications by which and in accordance with which the street should be paved. On April 19, 1902, the plans and specifications having been presented to the mayor and board of aldermen, a special meeting was called, whereupon the plans and specifications which were then on file in the office of the city engineer, and with the clerk of the mayor and board of aider-men, were approved. At this special meeting, the board directed the street commissioner to give notice to the owners or occupants of. land abutting on the street whereon was situated the defendant company, as required by § 3012 of the Code of 1892. It will be noted just here that, at the time notice was given to the property owners to construct the pavement in accordance with the plans and specifications of the engineer, these plans and specifications were on file in the city engineer’s office and the clerk’s office, and had been adopted and approved by the mayor and board of aldermen. The mayor and board of aldermen, by resolution, required the street commissioner,' if the property owners failed to construct the pavement as required, to make the improvement himself for the city. The street commissioner was required to make the improvements in case he was compelled to do so on account of the failure of the owners to comply with the order of the board, according to the plans and specifications which they had approved as returned to the city engineer. This resolution, at the special meeting, was made to take effect from and after its passage and was duly published. On the 22d day of April, 1902, the street commissioner notified the defendant company, and other owners and occupants of property abutting the street required to be paved, which notice in every respect conformed with the requirements of § 3012 of the Code. The defendant company failed to make the improvement as required by the resolution of the city after notice was served on them, whereupon, after the expiration of the five days, the street commissioner proceeded to construct and make improvement himself, acting under the instruction of the mayor and board of aldermen, and caused the street, whereon fronted this property of the defendant company, to be paved according to the plans and specifications adopted by the mayor and board of aldermen. After the paving was completed, the street commissioner re-, ported to the mayor and board of aldermen the cost of paving in front of the defendant company’s property, which said cost amounted to the sum of $708.43, according to an accurate account kept by him of the cost. Whereupon, at the next regular meeting, after the completion of the work and the report of the commissioner, the board adjudged this sum to be due, and a charge upon the property of the defendant company described in the petition hereto. The assessment was confirmed, and the sum has never been paid, the defendant company having refused to pay it, whereupon this suit was brought for the purpose of recovering the cost and damages allowed by the statute. A demurrer was interposed to this petition, and a great number of objections were raised. This demurrer was overruled, and the defendant company appeals to this court. The demurrer is of such great length, and raises so many questions, that it is a practical impossibility to take up and discuss separately each of the questions propounded by it; nor do we deem it necessary, since nearly all questions raised have long since been settled almost beyond controversy. We direct our attention to such matters as we deem controlling in the decision of this case.

The first question, and the only serious question raised by counsel for appellant, is that the resolution of the mayor and board of aldermen of January 7th is void because it did not describe the improvement which was deemed necessary with sufficient accuracy. Section 3011 of the Code of 1892 provides that: “ When the mayor and board of alder-men shall deem any improvement which requires unusual outlay and costs in excess of the general improvement fund, of which the board shall be the judge, on any street, lane,, etc., necessary, a special tax therefor may be levied. In such cases the board shall, by resolution, declare such work or improvement, describing it, necessary,” etc. Proceeding, under § 3011, the mayor and board of aldermen by this resolution of January 7th declared “ the paving ” of Capitol street, etc., necessary. In this ordinance the streets whereon this pavement is declared to be necessary are particularly stated, but the material out of which these “ pavements ” are to be constructed is not stated. Whatever defect existed in this original ordinance by reason of the fact that it did not sufficiently describe the character of the improvement to be made, in that it did not give the material out of which it was to be composed, was cured by the second ordinance of February 4th, in which the material was specified. In this second resolution of February 4th, it was required that the street be composed of vitrified brick. In order to acquire jurisdiction to have these streets paved, it was not necessary that the material should be stated in the first ordinance passed on the subject. All these ordinances were passed in the process of acquiring jurisdiction, and the property owners might have protested after the passage of either of them; but there was no protest at any time. If the property owners wanted to protest either on the ground that they did not want to have the streets paved at all, or that the material was too expensive, they had their day in court and permitted the action of the board to go uncontested. Though the first ordinance of January 7th did not sufficiently describe the material, when taken in connection with the second ordinance the law was fully complied with. All ordinances were made to take effect from the date of passage, and all ordinances and resolutions were published. Everything that it was necessary for the property, owners along this street to know was put in these ordinances, and they were given notice of it. They raised no objection; they filed no protest. If this notice of the intention to pave had been followed up by a person of casual information, of ordinary prudence, he would have discovered, to the minutest detail, every plan and every purpose which the mayor and board of aldermen had in view with reference to this pavement. The resolution of January 7, 1902, shows that the improvement contemplated is intended to be a special improvement, and that the cost of it is to be paid by the property owners fronting upon said street. The resolution proceeds to' say: “ Be it resolved by the mayor and board of aldermen of the city of Jackson proceeding under § 3011 of the Code of 1892,” etc. By this resolution of the board, § 3011 became as much a part of the ordinance as if its literal language had been incorporated into the resolution itself.

The section quoted — 'that is to say, § 3011 — is placed in the Code for the very purpose of enabling the mayor and board of aldermen to tax abutting property owners for improvements ordered made under this section, when deemed by them to be necessary.- Therefore we do not understand that the case of Greenville v. Harvie, 79 Miss., 754; 31 South., 425, holds that the specific mention of this section of the Code in the resolution, declaring the work necessary, does not incorporate into the resolution whatever provisions are contained in the section. The resolution passed by the board on January 7, 1902, is radically different from the resolution of the board in the case of Greenville v. Harvie, condemned by the majority opinion in the case supra. In Greenville v. Harvie, the resolution was 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, tbe sidewalks of said city,” etc. It will be observed that the above ordinance did not designate that notice should be given to tbe owners of tbe property, but tbe resolution is merely that “ notice is hereby given that tbe city council will cause to be constructed tbe sidewalks,” etc., and tbe court said in tbe majority opinion: “ If tbe tax is to be levied upon abutting lot owners, we think it should be so determined at the very beginning of tbe proceeding, so that the property owners may have opportunity to protest against tbe improvement, and so protect themselves against tbe expense.” Tbe court, in a majority opinion, held this ordinance fatally defective. Tbe resolution in this case is quite different. Tbe notice is to tbe owners abutting tbe street, especially designating that they (the owners) may within twenty days file their protest. By tbe resolution in this case, tbe owners are notified of tbe intention of the board to assess tbe cost of the improvement against them, and are given an opoprtunity to be beard against it. Eor tbe consideration of Ibis case, it is immaterial whether we consider tbe reference to § 3011 of tbe Code of 1892 as incorporated in tbe resolution or not, as tbe ordinance is definite without this.

Again, the argument is made that this ordinance is void because it imposes double taxation, in that at tbe same time tbe mayor and board of aldermen declared this special improvement to be necessary in tbe resolution of January 7, 1902, they also provided for the issuance of bonds for tbe purpose of constructing this work and issued bonds for this purpose, taxing tbe defendant company by general taxation with its pro rata part of tbe taxes necessary to pay the bonds which were raised for tbe purpose of paving this street, and at tbe same time requiring the property owners along this street to do tbe work themselves. Wé do not think that this contention is sound. In tbe first place, tbe raising of money by bonds wherewith to conduct this work was not altogether for the purpose of laying tbe pavement in front of the property of tbe defendant company. It must be borne in mind that the city itself was to pay a certain proportion of the expense of this pavement, and in order to do this it was necessary for it to have funds to pay for same. The property owners were to pay only one-sixth, the railway company a certain sum taxed against it, and the city the balance. It was necessary therefore for the city to have money to pay for the laying of its part of this work. This was not all. The law provides, in § 3012, that, if the owner of property fails to make this special improvement within twenty days after the ordinance becomes operative, the street commissioner shall, upon order of the board, after giving five days’ notice to the owner or occupant of each piece of property to be assessed, etc., make the repairs, or construct the improvement, or cause it to be done, keeping an accurate account of the cost thereof, and reporting same to the board at its next regular meeting thereafter for assessment, etc., whereupon it shall constitute a lien upon the property to be bound, etc. This record shows that this notice was duly served, and the defendant did not proceed to construct this work, and afterwards the city constructed it. It would be impossible to carry on the machinery of government without money. Money can be raised for a city only by taxation. It was necessary for the city to have on hand funds with which to complete the work where the owners failed or refused to do so. They could have this money only by increasing the taxation, or by raising it on bonds, as they did do. The burden of paving this street, in the first place, is imposed upon the property owner. If he failed to do it, the authority is given by the Legislature for the city to do it. If the city is to proceed to make this improvement, it is difficult to understand how it is to do so without money. To construct this work on the failure of the owner to do it, and to make this statute effective, it must be enabled, as it is under the law, to do the work and pay for it out of the municipal treasury from funds raised by taxes. We dare say it would not be contended that this would be double taxation, if the city had in its treasury enough funds to do the work without being compelled to issue bonds; but the money in the treasury would have been raised by another method of taxation simply, and the property of the defendant company would have to pay its pro rata, of this tax just as it is compelled to do in regard to the payment of this pro rata part of the taxes created by the issuance of the bonds. The question of double taxation has no application to any kind of tax except that which is imposed for general revenue purposes, wherein the public, in common, are to share in the burdens and the benefits. Double taxation has no application to a tax imposed because of the special benefit accruing to the party by whom it is to be paid. “When a property owner has been specially benefited by street improvements, he cannot claim immunity from assessments for such benefits, because his property will also be subject to taxation on account of the loan created by the city for the purpose of paying that portion of the improvement for which the city itself is liable.” O’Mara’s Appeal, 194 Pa., 86; 45 Atl., 127; 25 Ency. of Law (2d ed.), p. 1174. Neither can the property owner claim immunity from taxation where the city has been compelled to issue bonds to raise money to do work for which the owner was primarily liable, but, because of his refusal to do the work and discharge the liability, the city has been compelled to do it and to look to the property owner to discharge it afterwards.

The only way in which a municipality can make its ordinances requiring special improvements effective is in just the way which the Legislature has provided; that is to say, by giving to the municipality the right to notify the owner to make the improvement, and on his default to do it itself. If the Legislature had empowered the municipality to notify the owner, and, in default of his doing the work, give the city the power only to pass ordinances punishing him with a fine and imprisonment, or a fine or imprisonment, instead of empowering them to proceed with the work, this mode could not have been effective had. any proper owner stubbornly refused to obey the ordinances of the municipality and make the improvement. The right of the municipality, acting for the public, was not made subservient to the will of any property owner in this way. He might have been fined for the violation of the ordinance, but the work would not have been done. Therefore, in the wisdom of the Legislature, they have said that on default of the owner the city itself might proceed to do the work and charge the cost of same as a lien upon the property. The tax paid by the defendant company on the bonds is a general tax under a general levy, and it can be made to pay this but once. The amount it is .due the city for making this improvement is a special assessment; the obligation to pay same being incurred not by reason of any general taxation, but by reason of special benefits accruing to it by the payment of this indebtedness, in which the general public have no interest. This is not double taxation. The liability of the defendant company to pay this amount to the city proceeds upon a different theory and is incurred in a different way from the levy on the property for general taxes. There is no analogy between the two. O’Mara’s Appeal, 194 Pa., 86; 45 Atl., 127; 25 Ency. of Law (2d ed.), p. 1174; Gray’s Limitation of Taxing Power, § 1359. It cannot affect this question in any way whether or not the city through its street commissioner proceeded to lay this pavement, or whether it let it out by contract. It had the power under the statute to do it either way. The only thing that the taxpayer could require would be that he be charged no more than the actual cost of the work, in whatsoever way the pavement was made. 1 Abbott on Municipal Cor., § 292, pp. 652, 653.

It is argued by counsel for appellant that the rights given under § 3011, and those given under §§ 3014, 3015, and 3016, are exclusive one of the other, and, if the city pursued the remedy under one section to accomplish the end, by so doing it precluded itself from using the other. To the establishment of this proposition it is to be noted that counsel cite no authority save this statement in the brief. The mayor and board of aldermen, as a matter of fact, did proceed under § 3011, as is clearly manifested in the resolution passed, and it was their intention that the property owners along this street to be paved should pay this tax, and they so expressed themselves. They did raise money by the issuance of bonds under §§ 3014, 3015, and 3016 of the Code of 1892, and these bonds were raised for the purpose of effectuating their intentions, as declared in the resolution of January 7, 1902. If it became necessary to raise this money for the purpose of completing this work and making these resolutions effective, they .had the right to do so under §§ 3014, 3015, and 3016 of the Code. The issuance of these bonds for the purpose designated in no way affected the liability of the defendant company, nor furnishes any excuse for them for the nonpayment of théir pro rata part of the expense of this pavement. We can see no way in which § 3012 of the Code of 1892 violates § 17 of the Constitution of the state. Section 17 of the Constitution of the state provides that “ private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law,” etc. By the authorities quoted- above, it is seen that this section of the Constitution has no application to the question of special assessments; nor has § 112 of our state Constitution, which section announces the equal and uniform rule of taxation, any application to this case. There is no taking of property or damaging of property by this local assessment within the meaning of § 17 of the Constitution, and, as well put by the counsel, it .contemplates only benefits to accrue to the property from public work. In. truth, the base of the authority for imposing this tax upon property owners at all is founded on the fact of special benefits to the property owner. That § 112 of the Constitution hás-no application to this cause we cite: Gray’s Limitation Taxing Power, § 1312, p. 649, and note; Alcorn v. Hamer, 38 Miss., 652; 2 Cooley on Taxation (3d ed.), 1192; Dailey v. Swope, 47 Miss., 367; Christman v. City of Brookhaven, 70 Miss., 477; 12 South., 458; Vasser v. George, 47 Miss., 713; Nugent v. Jackson, 72 Miss., 1040; 18 South., 493; Clarksdale Ins. Agency v. Cole, 87 Miss., 637; 40 South., 228. In Cooley on Constitutional Limitations ([7th ed.] p. 715), in dealing with the subject of what constitutes a taking of private property for public use, and dealing with this very question, he says: “When the Constitution provides that private property shall not be taken for public use without just compensation therefor, it has reference to an appropriation thereof under the right of eminent domain. Taxation and eminent domain indeed rest substantially on the same foundation, as each implies the taking of private property for public use on compensation made; but the compensation is different in the two cases. When taxation takes money for public use, the taxpayer receives, or is supposed to receive, his just compensation in the protection which government affords to life, liberty and property, in the public conveniences which it provides, and in the increase in the value of possessions which comes from use to which the government applies the money raised by the tax, and these benefits amply support the individual burden.” In a certain sense, of course, even local assessments must be uniform, but the character of uniformity required of special assessments is quite different from that which prevails under the general uniformity clause of the Constitution. 2 Cooley on Taxation (3d ed.), p. 1182, notes; 25 Ency. Law (2d ed.), pp. 1172, 1174; Gray’s Limitation Taxing Power, p. 940, §§ 1835 (2), 1836.

It would seem from the authorities quoted that all the other constitutional questions raised by counsel for appellant here have been settled against their contention. Sections 3011 and 3012 of the Code of 1892 simply establish the front-foot rule. It may be that through this system some inequalities may be brought about, but this fact would not render the statute unconstitutional. Absolute equality cannot be attained in any plan of taxation. No person has ever yet been wise enough to evolve a scheme of taxation by which absolute equality can be secured. These sections have been repeatedly before the court, and each time they have been upheld as constitutional, and we see no reason to change the court’s ruling upon this subject. The cases of Nugent v. Jackson, 72 Miss., 1040; 18 South., 493; Greenville v. Harvie, 79 Miss., 754; 31 South., 425, and Wilzinski v. City of Greenville, 85 Miss., 393; 37 South., 807, all uphold these statutes as constitutional. We repeat the language of the Wilzinski case that “ it would be idle for us to attempt to add to the learning ” after the exhaustive discussion in the ease of Macon v. Patty, 57 Miss., 378; 34 Am. Rep., 451, and the case of Wilzinski v. Greenville, 85 Miss., 393; 37 South., 807. The Wilzinski case firmly establishes the front-foot rule, and the proceedings by the mayor and board of aldermen show that this application of it was more than equitable in the distribution of burdens in proportion to benefits received. Gray’s Limitation Taxing Power, p. 941, § 1837; 2 Cooley on Taxation (3d ed.), vol. 2, p. 1153, § 1; Id., p. 1181, § 4; Id., p. 1217.

We deem it unnecessary to discuss the time within which the property owners might have proceeded to make this improvement themselves. The first resolution was passed on January 7, 1902, and by order of the board was made to take effect at once. Publication was made as required by the statute, but no protest was filed. Neither under this nor any subsequent resolution or ordinance was there any effort to comply with the order of the board on the part of the defendant company. The first and all subsequent resolutions appertaining to this improvement were passed and published in 1902, and every notice required by the statute served on defendant, and, though the work was not completed until 1905, there was no effort on the part of defendants to do the work; nor is there a hint in the record, that they objected on the ground that they were not given the opportunity to make the improvement themselves. In conclusion, we desire to say that the Legislature has not left property owners at the mercy of the mayor and board of aldermen. The statute was careful to guard the right of the property owner by providing that he should be given notice of the intended improvement and a time within which to enter his protest. This notice was given, and there was no protest. The safe time for the property owner to object, if he intends to object, is at the time the law has designated for this when the machinery of government is first put in motion, and not wait until the improvement has been made and the benefits accrued, and then seek to defeat the assessment by finding some irregularity in the proceedings leading up to it that would invalidate it. Gray’s Limitation Taxing Power, § 1939, p. 991, and see note 25. See particularly Gray’s Limitation Taxing Power, § 1962, and concluding paragraph of that section.

Affirmed.

Calhoon, J., dissented.