Swayne v. City of Hattiesburg

111 So. 818, 147 Miss. 244, 56 A.L.R. 926, 1927 Miss. LEXIS 277

• Court: Mississippi Supreme Court
• Decided: March 7, 1927
• Docket: No. 26206.
• Status: Published

Opinions

Anderson, J.,

delivered the opinion of the court.

Appellant brought her bill in the chancery court of Forrest county.against appellee seeking to enjoin the latter from paving a part of Sixth avenue, one of appellee ’s streets. Appellee demurred to the bill. The demurrer was sustained, and, appellant having declined leave to amend her bill, a final decree was rendered dismissing the bill. From that decree appellant prosecutes this appeal.

Appellant made the following case by her bill: Appellee was proceeding under chapter 194 of the Laws of 1924 to pave a part of one of its streets, Sixth avenue.

Appellee has a commission form of government under chapter 108 of the Laws of 1908. On July 22, 1906, appellee’s mayor and commissioners adopted a resolution providing for the paving of a certain part of Sixth avenue described in the resolution, at the expense of the abutting property owners. The resolution, leaving off the formal parts, is in the following language:

‘ ‘ That in the judgment of the mayor and board of commissioners, it is necessary to pave Sixth avenue, commencing at the present pavement in Mamie street and ending at Concart street in said city, and that the cost of such paving, including the paving of street, avenue, and alley intersections, the laying of water mains, storm sewers, connections of sanitary sewer with abutting property, the construction of curbs and gutters and all engineering and inspection cost, including a proper proportion of the compensation, salaries, and expenses of the engineering staff of the municipality, properly chargeable to such improvements, all costs and estimated costs of the issuance of the bonds authorized by law and interest accrued while the improvement is under construction, and for six months thereafter, should not be paid out of the general improvement fund, but that a special tax shall be levied on the property owners for the purpose of paying for such improvements and all other expenses as herein enumerated, as provided in chapter 194 of the Acts of 1924 of the state of Mississippi.

“Be it further resolved that the plans and specifications for said paving, prepared by the city engineer and on file with the city clerk at Iris office, are hereby adopted and approved, and said special improvement shall be done according to said plans and specifications. The nature and the extent of the work, the character of the material to be used, the width of the paving of the avenue, and the location and terminal points of the avenue on which said improvements are to be made are as follows, to-wit:

“Sixth avenue shall be paved from the present pavement in Mamie street to and ending at Concart street for a width of twenty-four feet, and some one type of the specifications for paving referred to in the petition of the abutting owners, now on file, praying that said street be paved at the expense of the abutting owners, which types of pavement are set out in the specifications, now on file, will be adopted as the pavement to be used, if it shall be finally determined to pave said'street, after the opportunity to abutting property owners to protest has been given as required by law.

“The mayor and board of commissioners shall meet at the city hall, in the city of Hattiesburg, Miss., at 2 o’clock p. m. on the 12th day of August, 1926, being more than fifteen days after the date of the first publication of this resolution, to hear any objections or remonstrances that may be made against said improvement by the abutting property owners. At said meeting or at any time and place to which the same may be adjourned, any person aggrieved may appear in person, by attorney, or by petition and may object to or protest against said improvement. The mayor and board of commissioners will hear all objections and protests against said improvements, and will determine whether the improvement shall be made and how the cost thereof shall be paid, provided that if a majority of the property owners actually residing on the property owned by them and included within that part of the street to be paved, or -otherwise, actually occupying property owned by them and included with in the area shall file a protest, then the proposed improvement shall not he made.

“It is ordered that the city clerk cause this resolution to he published as provided by law.”

Appellant alleged in her bill that the cost of the paving chargeable to her property would be greater than the benefits received by her property.

A certified copy of the resolution was published in the Hattiesburg American, a daily newspaper published in the city of Hattiesburg, in the issues of said paper appearing on July 23, 1926, July 30, 1926', and August 6, 1926. On August 12, 1926, appellant appeared before appellee’s mayor and commissioners and protested against the proposed paving project upon the ground that the pro rata part of the cost of the paving to be assessed against her property would be much greater than the actual benefits accruing to her property from the paving. At the meeting of the mayor and commissioners held on August 12, 1926, a majority of the abutting property owners on the street proposed to be paved did not appear and protest against such paving, and thereupon at that meeting the mayor and commissioners adopted a final ordinance in accordance with the preliminary resolution directing that the paving be done in accordance with the statute. When the bill in this case was filed the appellee was proceeding, to do the proposed paving in the manner provided by the statute.

Appellant does'not question that the statute was being complied with, but relies alone for a reversal of the judgment upon the ground that the statute is unconstitutional. Appellant contends that the statute violates the due process clause of the Fourteenth Amendment (section 1) of the Federal Constitution, because under the rule laid down by section 5 of the act for apportioning the cost of the special improvement among the abutting property owners, the result may be, and is in the present case, to make the cost to some of' the-abutting property owners greater than the benefits received by their property. Section 5 of the act provides as follows:

“The resolution determining to proceed with the said improvement may direct that the cost and expense of the improvements hereby authorized, or such part as the governing authority shall charge upon the property benefited; in which resolution the governing authority shall direct that the whole or such part of the cost and expense thereof, as it shall fix, shall be assessed against the property abutting upon the improvement, according to the frontage thereof; in the following manner by taking the whole number of front feet improved and dividing the total cost of the whole improvement thereby and multiplying the quotient by the number of feet front contained in such abutting lot or piece of ground, and the result shall be assessed by the board as the amount of the special tax to be assessed against each lot or piece of ground, except the cost of improvements as to sidewalks, curbs, and gutters, the entire cost of which shall be assessed against the property on which it abuts for its entire frontage only.” .

It will be observed that under the statute the cost of improvement charged to the abutting property is according to the frontage of such property, and that the amount chargeable to each piece of property is determined by taking the whole number of front feet improved and dividing the total cost of the whole improvement thereby and multiplying the quotient by the number of feet front contained in the particular abutting property in question. Appellant charges in her bill, and it is admitted by the demurrer, that in thus apportioning the cost under the statute her property is benefited less than the amount of the assessment chargeable against it, Appellant’s position is that thereby her property is taken without due process to the extent that the cost of the improvement exceeds the benefits. This question was not decided in Stingily v. City of Jackson, 140 Miss. 19, 104 So. 465.

"Where a local improvement territory is selected, and the burden is spread by the legislature or by a municipality to which the state has granted full legislative powers over the subject, the owners of property in the district have no constitutional right to be heard on the question of benefits.” Browning v. Hooper, 269 U. S. 396, 46 S. Ct. 141, 70 L. Ed. 330; Valley Farms Co. v. Westchester County, 261 U. S. 155, 43 S. Ct. 261, 67 L. Ed. 585; Hancock, v. Muskogee, 250 U. S. 454, 459, 39 S. Ct. 528, 63 L. Ed. 1081, 1084; Withnell v. Ruecking Construction Co., 249 U. S. 63, 69, 39 S. Ct. 200, 63 L. Ed. 479, 483; Daily v. Swope, 47 Miss. 367, 387.

The determination by the municipal authorities of the relative amount of benefits and burdens to the abutting property owners is final. If the result actually is that the property of the abutting owner is burdened more than it is benefited, that result would come about through the exercise of the taxing power of the state, which is unlimited. The state or any political subdivision of the state with the authority of the state may tax property for public purposes to the extent of confiscation. And a special improvement assessment under such statute as the one here involved is the exercise of the taxing power of the state for public purposes. City of Pascagoula v. Valverde, 138 Miss. 399, 103 So. 198. Section 17 of the Constitution of this state, which prohibits the taking or damaging of private property for public use except on due compensation being first made to the owner, has no application to the taxing power of the state; it only has application to the taking of property for public use, and has nothing to do with the taxation of property for public purposes, which may result in the property being; forfeited for the nonpayment of taxes.

Appellant contends that the statute violates the due process clause of the Fourteenth Amendment of the Federal Constitution for the further reason that it provides for no notice to the abutting property owners of the purpose of the municipal authorities to organize the special improvement district and assess against their property the cost thereof. Appellant’s contention is that the abutting property owners were entitled to a hearing before the municipal authorities on both of those questions. In the first place, under the due process clause of the Fourteenth Amendment, no notice to the property owners of the purpose of the mayor and commissioners to organize the taxing district and assess the cost against their property was necessary to be provided by the statute. It was not necessary to due process that they have a hearing on either proposition. The legislature of a state may directly, by legislative enactment, organize such a taxing district and assess the cost against the property owners, or the legislature may delegate that authority to a local administrative board, such as the mayor and commissioners of a municipality. Hancock v. Muskogee, Withnell v. Ruecking Construction Co., Browning v. Hooper, supra, and Missouri Pacific Railroad Co. v. Western Crawford Road Improvement District, 266 U. S. 187, 45 S. Ct. 31, 69 L. Ed. 237. However, section 3 of the statute involved provides for notice. That section follows:

“"When the governing authority of any municipality shall determine to make any local or special improvement hereunder, the cost of which or any part thereof, is to be assessed against the property benefited, it shall adopt a resolution declaring necessary the proposed improvement describing the nature and extent of the work, the general character of the material to be used, and the location and terminal points of the streets, highways, boulevards, avenues, squares, alleys or parks, or parts thereof, in which said improvements are to be made. Said resolution shall fix a date when the governing authority of said municipality shall meet, which shall be not less than fifteen (15) days after the date of the first publication of the notice herein provided for, to hear any objections or remonstrances that may be made to said improvements. Notice declaring the work necessary shall be notice to the property owners that the work has been declared necessary. In publishing said resolution,, declaring the work necessary, th.e plans and specifications of said work need not be published but may be referred to as being on file in the office of the city clerk or city engineer.”

It is true, as contended by appellant, that the statute does not provide the manner of the publication of the notice, but that is controlled by chapter 260 of the Laws of 1912, of which chapter 194 of the Laws of 1924 is supplementary. Stingily v. City of Jackson, supra. The notice was published in the manner and for the time prescribed by chapter 260 of the Laws of 1912.

Appellant contends that the statute violates the Fourteenth Amendment of the Federal Constitution in that the act authorizes — and appellee sought to carry out its provisions in that respect — that appellant’s property be charged with its proportionate part pf the engineering and inspection cost of the improvement and the cost of the issuance of the bonds to raise funds to pay for the improvement, including the interest thereon for six months to cover the period of construction of the improvement. These expenses are a part of the actual cost of the improvement. There is as much reason for charging them as a part of the cost of the improvement as there is any other portion of it. Leonhardt v. Yonkers, 195 App. Div. 234, 187 N. Y. S. 27; Buckwalter v. Heurion, 111 Kan. 781, 208 P. 645; Chicago v. Lake Forest University, 293 Ill. 165, 127 N. E. 352; 28 Cyc. 1153.

We do not notice the other constitutional questions raised by appellant, because they are either decided adversely to appellant’s contention in Stingily v. City of Jackson, supra, or we do not deem them of sufficient seriousness to call for a discussion.

Affirmed.