Ramond v. City of Bay St. Louis

218 So. 2d 719, 1969 Miss. LEXIS 1613
CourtMississippi Supreme Court
DecidedFebruary 3, 1969
DocketNo. 45394
StatusPublished

This text of 218 So. 2d 719 (Ramond v. City of Bay St. Louis) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramond v. City of Bay St. Louis, 218 So. 2d 719, 1969 Miss. LEXIS 1613 (Mich. 1969).

Opinion

ETHRIDGE, Chief Justice.

This is a proceeding to validate $750,000 of special street improvement bonds of 1968, of the City of Bay St. Louis, Mississippi. Miss.Code 1942 Ann. § 4314 (1956). Appellants filed written objections, and after a hearing the Chancery Court of Hancock County rendered a decree validating the bonds.

The statute authorizes any municipality to cause designated local improvements to [721]*721be made in whole or in part at the cost of property owners benefitted thereby, by levying and collecting special assessments. Miss.Code 1942 Ann. § 3664-01 (1956). The construction of “local improvements” is authorized, including streets, highways, sidewalks, and water mains. § 3664 — 02. When the municipal governing authorities shall determine to make “any local or special improvement,” the cost of which or any part thereof is to be assessed against the property benefitted, they must adopt a resolution declaring it necessary, describing the nature and extent of the work, the general character of the materials to be used, and the location and terminal points of the streets. The resolution must be published and notice of the hearing of objections at a designated time shall be given. § 3664-03. At that meeting any aggrieved person may appear and object or protest to the improvements or any part of them. The governing authorities must consider the objections and protests, if any, and may confirm, modify, or rescind the resolution of necessity, determining whether the improvements shall be made and how the cost shall be paid. § 3664-04. Code section 3664-04 then provides:

The determination of such governing authorities shall be final and conclusive; provided, however, that if a majority of property owners owning more than fifty per cent (50%) of the front footage of the property involved and actually residing on property owned by them and included within that part of any street, avenue, etc., ordered to be specially improved, or otherwise actually occupying property owned by them and included within that area shall file a protest, then the improvement shall not be made.

The statutes, under which this bond issue of the City of Bay St. Louis has been determined to be made, do not limit the number of streets or the percentage of streets of a municipality which may be improved. Appellants argue that special improvement statutes cannot be utilized for a general street improvement program, and that there must be an adjudication of special benefits to the abutting property owners. The record does not reflect what percentage of the city’s streets will be improved by this bond issue, but it does reflect that there are a number of streets which are not included.

The mayor and commissioners exercise a legislative function in determining the character and extent of street improvements. Their decision is reviewable only if it is unlawful, or arbitrary, or reflects an abuse of discretion. 48 Am.Jur. Special or Local Assessments §§ 25, 26 (1943). Moreover, special or local improvements generally result not only in special benefit to certain property, but in general benefit to the public at large. The fact that a local improvement may incidentally benefit the entire city does not destroy its use for a local assessment. Id. § 24. The stated special or local improvement statutes can be utilized for the street improvements designated by the City Council.

The minutes of the governing authorities of the city reflect that they adjudicated the necessary, statutory jurisdictional facts. The resolution recited, among other things, that on certain streets a majority of the property owners owning more than fifty percent of the front footage of the property and actually residing on the property or otherwise actually occupying the property filed protests against certain designated streets, and that those were removed from the proposed improvements. It further stated that other streets on which there was not a majority protesting were included in the improvement program. The resolution tracked the statute and contains no jurisdictional defects. It was not necessary to adjudicate eviden-tiary facts which the mayor and commissioners considered prior to making their determinations on the ultimate facts. Smith v. Ballard, 241 Miss. 194, 129 So.2d 635 (1961); Pettibone v. Wells, 181 Miss. 425, 179 So. 336 (1938); Hinton v. Board [722]*722of Sup’rs of Perry County, 84 Miss. 536, 36 So. 565 (1904).

The mayor and board of commissioners were lawfully in session on September 10, 1968, when they adopted the resolution adjudicating the results of the protests and directing sale of the bonds. Protests were received on August 30, 1968, and the council then adjudicated that it would continue to consider the same from day to day until finally determined. It recessed until 10 A.M. on August 31. Subsequent recess meetings were held at 10 A.M. on each of the stated days, but the recessing order itself simply stated that the council would recess until the stated day, without referring to the time of the meeting. Yet each day, the meeting was convened at 10 A.M., as reflected by subsequent minutes. Considered as an entirety, the minutes of the council from September 3 through 10 were sufficient to place the council in a recessed meeting on the latter date. The minutes leave no doubt that the council intended to stay in session and was in session from day to day for the purpose of considering matters connected with the bond issue. Cf. In Re Validation of $30,000 Road and Bridge Bonds of Neshoba County, 242 Miss. 125, 133 So.2d 267 (1961); Hawkins v. City of West Point, 200 Miss. 616, 27 So.2d 549 (1946).

The special improvement statutes are legitimate exercises of the taxing power of the legislature. Daily v. Swope, 47 Miss. 367 (1872); Nugent v. City of Jackson, 72 Miss. 1040, 18 So. 493 (1895); 48 Am.Jur. Special or Local Assessments §§ 8-13 (1943). Nor were these statutes unconstitutionally applied in the instant case. Commissioner Glover was offered by appellants as a witness, and he testified as to the general method of considering the protests. After his testimony was in the record, the trial court sustained appellee’s objection to it as irrelevant. However, assuming it to be admissible, his testimony does not show any violation of the statutory methods of considering protests, either as to particular streets or in general.

The record contains the opinion of the State Bond Attorney approving validity of the bonds. Miss.Code 1942 Ann. § 4314 (1956). Appellants argue that he must be notified and must appear and attend the hearing. However, they did not raise this question in the lower court, and we do not reach it here. Adequacy of the street improvement plan is a legislative question for the city council and the voters and taxpayers of the city, not a judicial issue. Also, the record supports the chancellor’s finding that plans and specifications for the proposed work were on file in the office of the city clerk.

Mississippi Code 1942 Annotated Section 1195 (Supp.1966) provides for a general method of appeal from decisions of boards of supervisors and municipal authorities. It then states:

Provided, however, that no appeal to the circuit court shall be taken from any order of the board of supervisors or municipal authorities which authorizes the issuance or sale of bonds, but all objections to any matters relating to the issuance and sale of bonds shall be adjudicated and determined by the chancery court, in accordance with the provisions of sections 4314 and 4318, both inclusive, of the Mississippi Code of 1942.

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Related

Lee v. Hancock County
178 So. 790 (Mississippi Supreme Court, 1938)
Pettibone v. Wells
179 So. 336 (Mississippi Supreme Court, 1938)
Hawkins v. City of West Point
27 So. 2d 549 (Mississippi Supreme Court, 1946)
Woods v. State
179 So. 559 (Mississippi Supreme Court, 1938)
Jennings v. Smith County Board of Supervisors
183 So. 2d 645 (Mississippi Supreme Court, 1966)
Daily v. Swope
47 Miss. 367 (Mississippi Supreme Court, 1872)
Nugent v. City of Jackson
72 Miss. 1040 (Mississippi Supreme Court, 1895)
Hinton v. Perry County
84 Miss. 536 (Mississippi Supreme Court, 1904)
Smith v. Ballard
129 So. 2d 635 (Mississippi Supreme Court, 1961)
In re the Validation of $30,000 Road & Bridge Bonds of 1960
133 So. 2d 267 (Mississippi Supreme Court, 1961)
Validation of $250,000 School Bonds v. Board of Supervisors
150 So. 2d 412 (Mississippi Supreme Court, 1963)

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Bluebook (online)
218 So. 2d 719, 1969 Miss. LEXIS 1613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramond-v-city-of-bay-st-louis-miss-1969.