Nugent v. City of Jackson

72 Miss. 1040

• Court: Mississippi Supreme Court
• Decided: March 15, 1895
• Status: Published

Opinion

Whitfield, J.,

delivered the opinion,of the court.

Sections 2925, 2957, inclusive, code 1892, contain a specific enumeration of powers, thirty-two in number, conferred on each municipal corporation governed by the provisions of chapter 93 of said code, on municipalities. Among these powers is the one conferred by § 2914, which provides that the mayor and board of aldermen of each municipality shall have power “to cause to be constructed and maintained sidewalks, determine the materials, plans and specifications and grades of the same, and to levy and collect taxes, by special assessment, for the payment of the same.” This section confers the power, and $$ 3006, 3011, 3013, prescribe the mode in which the power is to be exercised. All these sections must be treated' together as propounding one general scheme. The phrase, ' ‘ special assessment, ’ ’ has a well-ascertained meaning in legislation on this subject-matter, and means, as shown by the context in which it stands, ' ' assessment specially ’ ’ imposed for the “construction and maintenance of sidewalks,” etc. — the usual local assessment for such purposes.

Counsel for appellants earnestly contend that, under $3011, code 1892, the 'power to cause such improvement to lie made, ’'' etc., cannot be exercised, as against any “ resident owner of property on said sidewalk,’’ etc., if such owner shall, “within twenty days after the passage of the resolution, file with the clerk his protest, in writing, against such improvement.” He refers us to no authority, and cites only $ 3011 as it stands. On the face of this section, as it stands in the printed code of 1892, it would seem that the “power to cause such improvement to be made” would, on this idea, as applied to the language of this section exist, unless all the “said resident owners of property filed such protest.” So great is the obscurity of this section, however, and so' difficult of satisfactory explication the scheme propounded by it and $ 3012, that we have given unusual pains to the consideration of the subject, and we find in the “duplicate of the annotated code of 1892, deposited in the office of the secretary of state, . . as the code of public statute laws of this state” (Code 1892, $2), and in Williams v. Cammack, 27 Miss., 209, what clears up the whole matter. The fact is revealed by the said duplicate of the annotated code of 1892, that between the words “if” and “the” in the seventh line of § 3011 of the code of 1892, as printed, the words “a majority of” have been left out in the publication, thus changing the entire sense of the section. It appears from said duplicate code, on file in the office of the secretary of state, which shows the law as it now is, and the corrections made by the legislature in the draft of the code of 1892,- as prepared by the commissioners who framed it, that said draft of said code originally provided that if the protest was made by two-thirds of the resident property owners, the power to make the improve.ment should not be exercised, and that the legislature changed this so as to defeat the exercise of the power in case a majority of said resident property owners should"protest, etc. There being a conflict in this respect between § 3011 as it appears in the printed code of 1892, which requires that all the resident property owners should protest, and the said duplicate code, which only requires that a majority shall protest, the said duplicate must prevail. Code of 1892, § 2; IIunt v. Wright, 70 Miss., 298; Ex parte Wren, 63 Ib., 512. Section 3011, therefore, does clearly provide that “if a majority of the resident owners of the property on said . . sidewalk, or part thereof, to be benefited by such improvement, do, within twenty days after the passage of the resolution, file with the clerk their protest, in writing, against such improvement,” then the board shall not have the power to cause it to be made, etc. That this is the true construction of the section, is shown by Williams v. Cammack, supra, where, in speaking of a similar provision as to a majority protest, in the law under discussion there, as to levee assessment, the court says: “This protest certainty gave no force to the act, but was intended expressly to put an end to its operation. If the provision had been that the act should not have any effect until a majority of the voters should sign their written assent to it, the objection ” that the act had no binding force until a majority assented, ‘ ‘ would have more force. But no such condition was annexed to it. Being a local act, affecting only the property owners of the particular county, and intended for their benefit, it was provided that they should have the privilege of putting an end to its operation, in the manner prescribed in the act; otherwise, that it should continue. It derived no binding force from the action of the voters, but quite the reverse.” So that a majority of the said resident property owners, not having in this case, exercised their undoubted privilege of putting an end to the exercise of the power to make the improvement, by filing their written protest as provided, it is immaterial that only the appellants protested. The protest must be the protest of a majority, as aforesaid, to be effectual. “A majority,” that is, “of the property owners on the sidewalk, or part thereof, to be benefited by the improvement, along the whole distance on each separate street along which the sidewalk is directed to be improved." Of course, the majority of the property owners means the majority of property owners on each sidewalk, considered separately from every other sidewalk; and “part thereof” means that part of the sidewalk ordered to be improved — such part in its whole distance. So construed, the statute gives the privilege of putting an end to the operation of the ordinance, to-a majority of all those property owners interested in the improvement, by ownership of property abutting on said sidewalk, or part thereof, anywhere along it, within the whole distance of said sidewalk, or part thereof, ordered to be improved. So construed, it is a wise and conservative statute.

The language of $$ 3011 is exceedingly awkward, and this section and 3012, taken together, are very difficult of satisfactory construction; but we think the scheme fairly deducible from ^ 3006, 3011, 3012, 3013 is this: That, when any improvement which requires ' ' unusual outlay and costs in excess of the general improvement fund ' ’ is deemed ' ' necessary ’ ’ by the mayor and board of aldermen, they shall so declare by “ resolution, ’’ describing the improvement; that they are made the “judges” of such necessity; that, having so declared the improvement necessary, they shall publish the resolution, as provided in § 3006, in some newspaper of the municipality, or, if there be no such newspaper, then by posting, etc., ‘ ‘ for three weeks; ” that property owners affected by the resolution shall have “twenty days after the passage of the resolution,” during which time the said publication is being made, within which to file their written protest,, in which, of course, they are to specify the grounds of their protest against the improvement, such protest, to be effectual to put an end to the operation of the law, to be signed by a majority of said resident property owners, etc.; that if such protest is so tiled, the improvement is not to be made; that if it be not so filed, and the property owner ‘ ‘ fail to make the special improvement within twenty days after the ordinance becomes operative, ” which must be held to be a period of time twenty days after the completion of the publication of the “resolution,” and which may be more than fifty days after the ‘ ‘ passage of the resolution, ’ ’ since it might not be promptly ‘' published ’ ’ on passage, then the ‘ ‘ street commissioner ” shall give the property owners “ five ” further “days’” notice “of the necessity” for the improvement, during which five days the property owners may conclude to do the work themselves; and, if they still decline, then the “ street commissioner” shall proceed to “ make the repairs, ” etc., the mayor and board of aldermen having, at some date subsequent to the expiration of twenty days from the completion of the publication, made “ an order,” directing the “street commissioner” to give such five days’ notice, and then, in the case stated, to make such improvement, as directed in £ 3012. This seems to us what is meant. This construction gives the property owner the longest time after the ‘ ‘ resolution ’ ’ is “passed.” It may be some days before it is published; it must be published twenty-one days, and, surely, as the object of publication is notice, the rule elsewhere obtaining must apply here, that the full period of publication must have expired before the “resolution ” or “ ordinance ” can be deemed “operative. ’ ’ After the expiration' of the twenty-one days of publication, the property owners still have twenty-five days.within which ‘' to m'ake the special improvement ’ themselves. There may be said to be two notices here — the newspaper publication or posting, and the final five dajp’ notice. The first character of notice is intended to give the said property owners opportunity to file their majority protest; the five days-’ notice is meant to give them that much further time in which to exercise their election as to whether they will “make” the improvement themselves or let the municipality do it.

We think the necessity for notice is satisfied by this ordinance within the principle laid down in the authorities holding notice necessary. Says Mr. Elliott (Elliott on Roads & Streets, p. 415): “The only defensible rule is that which requires that, at some stage of the proceedings before the judgment or decision becomes conclusive, the landowner should have notice, or an opportunity to be heard. We do not say that he is entitled to be heard on every question — far from that, for we do not believe he is entitled, as a fundamental right, to be heard-on matters which simply affect the question of the regularity of the proceedings, but we do believe -that, before the final determination, he is entitled to be heard upon questions which vitally touch the validity of the proceedings. . . But while we regard notice as indispensable, we do not believe that it need always be given during the initiatory or original proceedings; on the contrary, our judgment is, thats if it is provided for at some stage of the proceedings, and in such a mode as to give the party an opportunity to bo heard before a final conclusion is reached, it will be sufficient.” The publication and the opportunity to protest amply meet this requirement.

It is not necessary, in our view, to discuss the question of notice in this case, in the view of those authorities which hold that, ‘‘when the local authorities may arbitrarily decide that the improvement does benefit land to the extent of the expense of making it,'’ no notice is necessary (Elliott on Roads & Streets, p. 397] — a view said to be “unquestionably sustained by the weight of authority. ” Section 3011 makes the municipal authorities “-the judge” of the necessity of the improvement, not necessarily of whether it be beneficial to the property owners. Indeed, the doctrine in our state, as enunciated in the masterly opinion of Chief Justice George in Macon v. Patty, 57 Miss., 378, is that the right to impose these local assessments does not rest solely on the idea of benefit, and cannot logically be upheld on that theory, but on the principle ‘ ‘ that when certain persons are so placed as to have a common interest among themselves, but in common with the rest of the community, laws may be justly made, providing that, under suitable and equitable regulations, those common interests shall be so managed that those who enjoy the benefits shall equally bear the burden; " they are charges upon “property, inseparably incident to its location in regard to other property. ’ ’ There would seem, therefore, to be no forcé in the argument as to the necessity for showing that benefit is conferred by the improvement, with us. But, however this may be, we think on the question of notice, ample notice is here shown.

We cannot approve the contention that in this imposition of these local assessments the rule of equality and uniformity required by the constitutional provisions as to ordinary taxation is to be observed. The contrary view is thoroughly established. It is well said by Mr. Justice Field in Hagar v. Reclamation District, 111 U. S., 701: “The rule of equality and uniformity prescribed in cases of taxation for state and county purposes does not require that all property, or all persons in a county or district, shall be taxed for local purposes. Such an application of the rule would often produce the very inequality it was designed to prevent. As we said in Louisiana v. Pilsbury, 105 U. S., 278, there wo\ild often be manifest injustice in subjecting the whole property of a city — and the same may be said of the whole property of any district — to taxation for an improvement of a local character.”

It is far too late to question now the validity of legislation like this imposing local assessments, investing the local authorities with the discretion of judging as to the necessity for the improvements, and with power to levy and apportion the charge. We adhere to the announcement in Macon v. Patty, supra, generally recognized now as sound, that ‘ ‘ these assessments are not within the unrestricted discretion of the legislature, but are subject to many and just limitations which the courts will enforce” — an announcement extended and explained by Mr. Elliott, in his work on Roads & Streets, at page 875: “It is quite clear that courts cannot, on principle, be invested with the discretionary power of determining when highways should be improved; of necessitjq the power must reside in some lawful body, and in no other can it be more appropriately placed than in one selected by or coming from the immediate vicinity of the highway to be improved. Local officers are nearer the persons and property affected, they have a closer knowledge of the wants of the community, they are more directly under the supervision of the inhabitants of the locality than other officers, and it is but reasonable to hold, as it is generally held, that they are the exclusive judges of when, and in what manner, the highway should be improved. The right of the judiciary to interfere can only exist where there has been fraud or oppression, or some such wrong constituting a plain abuse of discretion. ” Nothing of the sort is shown here. See, generally, Elliott on Roads & Streets, chapter 22, especially at pages 375, 385, 391, 392, 393, 396, 397, 402, 410 and 415; 2 Dillon’s Mun. Cor., §§752-761; Macon v. Patty, supra; Daily v. Swope, 47 Miss., 367; Cammack v. Williams, 27 Ib., 209; Smith v. Aberdeen, 25 lb., 458.

The case chiefly relied on by appellants, Ullman v. Mayor, etc,., 20 At. Rep., p. 141, serves only to show the very unsatisfactory attitude of the supreme court of Maryland on the general question, though the decision in the particular case may be rested on the fact that there was, in that case, no notice whatever. The whole “proceeding was, in the strictest sense of the term, purely ex parte.' ’ The court says: ‘ ‘ That ease, by three judges to two, overruled an earlier case (Mayor v. Hopkins, 56 Md., 1) which, .in its turn, had overruled, by the same bare majority, Mayor v. Scharf, 54 Md., 499. A singular feature of Ullman v. Mayor, etc., is that-it professes to rest on Spencer v. Merchant, 125 U. S., 345, but'quotes from the dissenting opinion of Mr. Justice Matthews, which opinion itself quotes from Stuart v. Palmer, 74 N Y., 183, and pronounces that irreconcilable with the very able opinion of Mr. Justice Finch in 100 N. Y., 587, which latter opinion Justice Gray, for the court, adopted.”

It is further to be noted, as said in Macon v. Patty, that there is a very wide distinction between the power to impose these local assessments for the improvement of streets and the improvement of sidewalks. The latter can be maintained under the police power.

All the sidewalks in Jackson are shown to have been made at the expense of or by the owners of abutting property, and all the property owners, affected by this ordinance have complied with it, save appellants.

All that is said in the ordinance about the dirt sidewalk being a public nuisance is, of course, mere thundering in the preface. It is pure surplusage. The sidewalk was no nuisance of any kind.

The statute (§§ 3011, 3012, Code 1892) is exceedingly awkward and unintelligible. Many criticisms could be indulged. The order of the board is styled “ resolution” in § 3011, and “ordinance” in §3012. It is required in §3011 that the property owners must file their protest within ‘' twenty days from the passage of the resolution; ” and yet the resolution must be published for three weeks, and the publication will certainly not be completed within the said twenty days from the passage of the resolution, etc. Bat we must so construe the law as to uphold it, if it can reasonably be done, and thus effectuate the legislative will. And we are satisfied with the construction we have placed upon it. As correctly said in Williams v. Cammack, supra: “It is of common occurrence that legislative acts designed for the general good work the most serious injury to the interests of individuals. There may be hardships, but they are inconveniences incident to society, and a part of the sacrifices everyone must make, in order to enjoy the greater advantages of law and government. They must be submitted to as the necessary action of the machinery of government, and as individual sacrifices to the general good, in order that the advantages of the social compact may be enjoyed.”

Affirmed.