Union Savings Bank & Trust Co. v. City of Jackson

84 So. 288, 122 Miss. 557

• Court: Mississippi Supreme Court
• Decided: March 15, 1920
• Docket: No. 21047
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

The city of Jackson filed suit against the Union Savings Bank & Tfust Company to collect certain special assessments levied upon certain property in the city of Jackson under chapter 260, Laws of 1912, for the cost of paving- North street. It was alleged in the bill that the board of mayor and commissioners passed a resolution and ordinance declaring such improvements necessary ; that said resolution was passed and published as required by law; that the majority of the resident owners of said street, or any'part thereof, did not file a protest against the same as provided by law; that the board of mayor and comissioners caused the paving to be laid by contract, and levied a special assessment under the provisions of chapter 260, Laws of 1912, against the said property then belonging to Mrs. A,. E. ¿Garner, describing the property specifically; that the owner, after due publication and the filing of the specifications as required by said act, failed to make the improvement within the time specified; that the city, after giving thirty days’ notice to the owner of the property, constructed said improvement in front of said property, kept an account of the cost thereof, and reported the same to the board of mayor and commissioners; and that the same was duly assessed as required by law.

It is further alleged that Mrs. Garner recognized the proceedings and the assessment, and paid part of the costs thereof in cash, and gave her notes for the balance, under the provisions of the act of 1914 (Laws 1914, chapter 256) authorizing such an arrangement. It is alleged that the property then belonging to Mrs. Garner afterwards came into the possession of appellant, and that it was honnd by the hen against said property.

It is alleged that the complainant city, through its proper agents, did all that was required of it by chapter 260, Laws of 1912;, by giving notice and then assessing and paving, and did all other things required by said act; that demand for the amount of the cost of such paving then done was made and payment refused. The bill prayed for a decree in the amount due, and for a lien on the property for said amount, and the appointment of a commissioner to sell the land to pay the same.

The appellant denied the allegations of the bill that the city had proceeded according to law in ordering the street paved, in giving notice, and in levying a special assessment; denies that Mirs. Garner was the owner of the property; denies that a majority of owners did not protest; denies that she failed to make such improvement; and denies practically all other allegations of the bill; but admits that the property came into its possession; but denies that such property was ever bound or remained bound by any lien.

The city introduced an ordinance or resolution passed on the 4th day of June, 1912', reciting that said paving on North street between Amite and Wells streets is necessary, and giving notice of its intention to pave same and that the owners of property residing! thereon might, within ten days after the completion of the publication, protest against the same by filing protest with the city clerk. The city also introduced a resolution dated or passed on July 3, 1912, reciting that no sufficient protest had been filed by the property owners within ten days after the completion of the publication of the ordinance or resolution of June 4, 1912;, and directing the street commissioner to advertise for bids for said paving, and directed the city engineer to prepare plans and specifications for said work. The street commissioner ire-ported on March 4, 1913, that the paving be made with asphalt, and finding the total cost of paving and grading tó he forty thousand two hundred ninety-four' dollars and ninety-three cents, and that the city’s portion of this paving was seventeen thousand seven hundred sixty-five dollars and fifty-two cents, and that of the property owners twenty-two thousand five hundred twenty-nine dollars and forty-one cents; that the total frontage was six thousand five hundred thirty-three and four tenths feet, giving the rate per lineal foot. The report gave the amount to he assessed to the property affected in this suit as follows: Paving and grading, two hundred seventy-five dollars and eighty-seven cents; water pipíe, two dollars and ten cents; total, two hundred seventy-seven dollars and ninety-seven cents. At the same, meeting an ordinance was passed levying the special assessment according to said report, and reciting that it was ordered by the board of mayor and commissioners that the general improvement fund should not he used for said special improvement, and that the cost thereof should be assessed against the property owners, and that no protest had been filed, and that the owners, after notice, had failed to improve the said street, according to the plans, within thirty days after the order was passed, and that after thirty days had passed (after the twenty days allowed) the street commissioner duly gave notice to the owner of each piece of property to he assessed of the necessity therefor, and the said owners still did not malee the same, or any part thereof, or protest against the mfaking of same; and ordered the costs to be apportioned against the several owners according to the report of the street commissioner and the city engineer.r

On April 15, 1913, an ordinance was passed and was introduced in evidence, reciting1 the several matters as above set forth, and that such notice was published two weeks notifying the property owners that the assessment had been made out and filed with the city clerk suhgect to the inspection and objection of the property owners, and that said assessment had remained on file more than fourteen days after the publication of said notice was completed, and that no objections had been madeiby any property owners or other persons to said assessment, and approved the said assessment so filed.

On the 30th day of April, 1912', Mrs. Gamer executed a deed of trust to secure a debt to the Union Savings Bank & Deposit Company for six hundred and twenty dollars, at eight (per cent; on August 3,1912, another deed of trust on the same property was executed to secure two hundred dollars; and on October 16, 1912, another for two hundred dollars.

Proof was introduced by the city showing title in Mrs. Garner.

It further appeared that on April 2, 1917, the sheriff sold the lot, 80x160 feet, for the taxes for the year 1916. This assessment described the property as 80x160 feet north of Loeb five-acre lot 6, North Jackson. The description in the deed involved in this controversy is as follows: That portion of 5 A. lot No. 6, on Daniel’s Official Map, beginning at a point one hundred sixty feet north of the southwest corner of said lot at the intersection of North and Asylum streets (as now laid off and not as laid off on Daniel’s Map), and on the east line of North street, thence north with the east line of North street eighty feet, thence east one hundred sixty feet, thence south eighty feet, thence west one hundred sixty feet, to point of beginning.

The original suit was filed against the First National Bank, which disclaimed ownership and denied liability. Thereupon an amended bill was filed making the Union Savings Bank & Trust Company the sole defendant, and the bill was dismissed as to the First National Bank. After the Union Savings Bank & Trust Company filed its answer, it sought to withdraw its answer and filed special pleas, challenging the propriety and legality of this proceeding’ by which it was substituted in the place of the First National Bank. The first five assignments of error deal with this action of the court in this behalf.

We think in legal effect the bill filed was an original bill against this defendant, and, as the answer was filed to the merits, it is not reversible error for the court to refuse leave to withdraw and file the pleas in question.

Appellant moved to strike the notes of Mirs. Gamer made exhibits to the bill from the record, because it is alleged that they attempt to set forth a secret lien.

We do not think there was any error in the court’s refusal to strike out the notes, or that in any manner' prejudiced the appellant. The three notes were testified to by the city clerk, and there was a motion by the appellant to exclude these notes from the evidence. The notes were admitted for the purpose of showing recognition of the liability of the assessment on the part of Mrs. Gamer, and as showingi acquiescence on her part in the proceedings of the city, and for this purpose we think were competent.

It is assigned for error that the court erred in refusing to exclude the ordinance and the report of the city engineer, and that the court erred in rendering any decree in favor of the appellee, and in decreeing that the appellee had a lien on the property involved and that the property be sold.

The act of 1912, chapter 260, is attacked as being unconstitutional :

First, because it is said that it violates section 79! of the Constitution of 1890, which reads as follows: “The legislature shall provide by law for the sale of all delinquent tax lands. The court shall apply the sam,e liberal principles in favor of such titles as in sale by execution. The right of redemption from all sales of real estate, for the nonpayment of taxes or special assessments, of any and every character whatsoever, shall exist, on conditions to be prescribed by law, in favor of owners and persons interested in such real estate, for a period of not less than two years. ”

And, second, that it is a taking of property without due process of law and the equal protection of the law, in violation of the fourteenth amendment to the Constitution of the United States.

The most serious question presented is the question as to whether the act in question violates section 791 of the state Constitution. The provision of this section that “the right of redemption from all sales of real estate, for the nonpayment of taxes or special assessments, of any and every character whatsoever, shall exist, on conditions to be prescribed by law, in favor of owners and persons interested in such real estate, for a period of not less than two years,” is one of vital importance to property owners.

Chapter 260, Laws of 1912, does not, in terms, provide for the redemption of property sold in pursuance of its provisions. Indeed, there is nothing1 in the chapter bearing on the question of redemption after the sale shall he made. It is contended by the' appellee that the special assessments named in this section do not include improvements of this kind, but relate to local taxes. We do not think this contention is sound. The improvement here sought to be. made is by a special assessment, that is, the funds for making the improvements is derived from a special assessment against the property, and the language of the Constitution is for “taxes or special assessments, of any and every character whatsoever;” and this, certainly, includes the scheme of chapter 260, Laws of 1912. However, it does not follow that the act is void because it has no provisions for redemption. In our opinion the constitution itself confers the right of redemption. The legislature may impose rea-' sonable conditions on the right to redeem under the constitution,, but the right cannot be defeated by the legislature neglecting or failing to provide a scheme by which it may be done. The courts will afford a remedy in case the legislature furnishes none, and eqtdty has jurisdiction of a suit to redeem independent of the legislature. So the owner may tender to the buyer the amounts of the purchase money and costs, with interest, and, if the buyer refuses, the owner may resort to equity and redeem and have the conveyance canceled.

It is said that the act violates the federal Constitution in denying equal protection of the laws, because under section 8 of the act, chapter 260, Laws of 19121, it is provided that the property owners actually residing on property owner by them, and included within that part of any street ordered to be specially improved, may file a protest with the mayor and board of aldermen against the proposed improvement, and, if a majority of such property owners shall protest against the proposed improvement, then the improvement shall nott be made. It is contended that this section discriminates against owners having property fronting said street but who do not live on the property and may not be residents of the city or state.

Section 91 of the act gives every person, whether a resident or not, or whether occupying property fronting the improvement or not, the right to be ¡heard and his complaint considered. This section gives each person full right to be heard upon the question of making the improvement and of any legal invasion of his right that he may desire to present to the board.

As we view the two sections, section 8 is a limitation in the nature of a veto, legislative in character, provided a majority do not consent thereto. Numerous laws and regulations depend upon the consent of the people to be affected, and it has never been understood that a nonresident has any rights affecting the establishment of regulations of a governmental character.

The act of the 'board in passing on the necessity for the improvement,- or the judgment of the board in regard thereto, may be made by the legislature to depend upon the approval of the resident inhabitants of the particular territory. This in no manner denies nonresidents equality of the-law, for it is the equal protection of the law, and not the equal right to make laws, that the Constitution guarantees.

It is insisted that the act violates the fourteenth amendment to the federal Constitution because it takes the property of persons without due process of law. As pointed out, section 9 gives to property owners, whether resident or nonresident, the right to anpear and propound any objection they may have to the scheme, and to challenge it in any respect where it affects them, while section 20 of the act provides for notice of the assessment, and section 21 of the act for a hearing on the objection to the assessment,1 and it is provided that when the assessment is approved, subject to appeal allowed in section 22¡, chapter 260, Laws of 1912, the assessment shall become final, and may be enforced in the manner provided in the act. Section 22 grants an appeal to be taken to the circuit court in accordance with sec-' tion 81 of the Code of 1906, and that the judgment on appeal shall be as provided by that section. We think these sections give the due process of law required by the fourteenth amendment.

Our court, in Western Union Tel. Co. v. Kennedy, 110 Miss. 73, 69 So. 674, held that injunction would not lie to restrain a collection of taxes on an assessment made by the Railroad Commission, though there was no provision in that act for appeal, except certiorari, under section 91, Code of 1906', and that certiorari was the exclusive remedy.

In Wolford v. Williams, 110 Miss. 637, 70 So. 823, this court, speaking;’ through Mr. Justice Potter, held under Swamp Land District Act that an aopeal was the exclusive remedy. In the second syllabus of that case it was said:

“Where landowners were legally notified of proceedings for the establishment of a swamp land district am3 failed to appeal from the decision of the. board of supervisors, they cannot enjoin the collection of taxes due on such swamp land district on the ground of irregularity in the proceedings.”

In G. & S. I. Railroad Co. v. Adams, Revenue Agent, 85 Miss. 772, 38 So. 348, it was held that certiorari was the proper remedy to review the proceedings of the Railroad Commission in assessing property, and that, although the law limited the review to questions of law appearing on the face of the record, the court could review a mistaken finding of fact contrary to law, or the mailing of an order beyond its powers.

We think in this case that Mrs. Garner being the owner of the property at the time of the making of the improvement, and having full notice of the proceedings and of the assessment made against the property, and having recognized the rightfulness and liability of the proceedings by paying a part of the assessment, and giving notes for the balance, the question cannot now be raised because her remedy was by appeal. The bank having made its contract through which it ultimately derived possession of the property subsequent to the enactment of the statute, and with full knowledge of the power of the city to make the improvement and impose the costs thereof on the property, by which the costs would become a lien upon the property paramount to all other liens, save that for state and county taxes, it took the property subject to these provisions and cannot defend upon any mere irregularity in the proceedings. It was never contemplated that a lienholder, or subsequent purchaser, could litigate anew these questions.

The bank took only such riarht as Mrs. Gamer had, and, while not liable on her note, the property is liable for the city’s demands. Neither will the sale for taxes by the sheriff, and the purchase thereof by the bank, protect the bank from the payment of this demand. The taxes were a charge upon the property, and it was the duty of the bank to pay the charge upon the property.' It cannot escape or shut out the city’s lien by permitting the property, which it bought incumbered with the taxes which were due by its grantor and which were made by statute superior to the lien on the property, by this method. The chancellor having reached the same conclusion, the judgment is affirmed.

Affirmed.