City of McComb v. Barron , 147 Miss. 465 ( 1927 )

^* Corpus Juris-Cyc. References: Municipal Corporations, 28Cyc, p. 999, n. 57, 60, 62; p. 1217, n. 5; Pleading, 31Cyc, p. 745, n. 20; On sufficiency of resolution of intention to make public improvement, see 25 R.C.L. 155; 6 R.C.L. Supp. 1457. The appellant, the city of McComb, filed its bill in the chancery court of Pike county, seeking to recover one hundred sixty-four dollars and thirty-two cents, alleged to be due it by virtue of an assessment of that amount against a lot owned by the appellee, Barron, for the construction of a special improvement, to-wit, a sidewalk. The original bill was based on a statement of the amount of the assessment without setting out the resolution of the board of supervisors levying the assessment against the property owners of the city. To this bill a demurrer was filed, which was by the court sustained, and we apprehend for the reason that none of the resolutions of the city council were attached as exhibits to the bill. Thereupon the city did not rely upon its original bill, but filed an amended bill in which it set out what occurred, particularly the proceedings of the board, and attached as exhibits the proceedings of the board from the initial order to the final one levying the assessment upon the property owners and notices published pursuant thereto.

The appellee, or defendant in the court below, again filed a lengthy demurrer, setting up thirty-two grounds for demurrer, which we shall not, in this opinion, undertake to copy nor pass upon all the questions raised by same. The court below sustained the demurrer, and the appellant, the city of McComb, prosecutes an appeal therefrom.

Both counsel for appellant and appellee, in their briefs, undertook to argue whether or not the court was correct in sustaining the demurrer to the original bill. It is sufficient to say that when the complainant, or appellant, filed its amended bill, any error that might have been committed by the court in sustaining the demurrer to its original bill is thereby waived.

The demurrer raises the question, first, that the amended bill does not charge that the city council of McComb city, Miss., authorized the bringing of this suit. We think this a matter defensive. If, in truth and in fact, the city of McComb had not authorized the suit in question through its proper authorities, this fact could be set up in the answer or by special plea. We do not think it is necessary for counsel, in filing a bill for a municipality to collect assessments for special improvements, to allege in the bill that he is authorized to bring the suit. Second, this was a proceeding to construct concrete sidewalks on forty-four streets in the city of McComb and to assess the cost thereof to the abutting property owners, the proceedings being taken under chapter 260, Laws of 1912, as amended. In the resolution and in the notice the names of the forty-four streets are set out in the preamble, but not recopied in the body of the resolution. There they are referred to as "said streets." It is true that the body of a resolution should contain the names of the streets, but we think that where the name of each street is set out in the preamble, and in the body of the resolution they are referred to as "said streets," there could be no mistake as to what streets were contained in the resolution. Third, it is contended in the demurrer that these forty-four streets, or parts of streets, should have been embraced in separate resolutions or ordinances on the idea that the resident property owners of each street are given the power to veto, by remonstrance or petition, the purpose of the governing body of the municipality to construct the improvements. In our opinion, no harm could possibly ensue to the property owners from the inclusion of the forty-four streets, or parts of streets, in one resolution. Section 5945, from the general tenor thereof, and other sections of the act, indicates that more than one street shall be improved at one time. Fourth, the only serious and fatal ground of demurrer, as we see it, is that in the passage of the first resolution, under section 5945, the board wholly failed to describe the character of the special improvement proposed.

Said section is as follows:

"When the mayor and the board of aldermen of any municipality shall deem necessary any special improvement on any street of the municipality, and in the judgment of the mayor and the board of aldermen the general improvement fund should not be used for the purpose of making the special improvement, a special tax to make the special improvement may be levied as herein indicated. In such case the board shall, by resolution, declare the improvement necessary. The resolution shall describe the character of special improvement proposed; shall fix the street or part of street on which it is proposed to have it made; shall state whether the proposed special improvement is to be made on the street or sidewalk, and shall designate between what points the street or streets shall be improved, whether the whole length of the street or only a part of it."

It will be noted that the resolution provided for in this section requires that the city council shall (1) declare the improvement necessary; (2) describe the character of the special improvement proposed; (3) shall fix the street or part of the street on which it is proposed to have it made; and (4) shall state whether the proposed special improvement is to be on the street or the sidewalk, etc. The resolutions attached as exhibits to the original bill do not describe the character of special improvement except to use the words "concrete sidewalk." The width of the sidewalk, the material of which it is to be constructed, and the plans and specifications are not referred to; and the record shows most conclusively that no plans and specifications were adopted by the city council until after the publication of this notice, and no opportunity was ever afforded by this resolution, or the notice published thereunder, to the property owners to construct the sidewalks according to plans and specifications, the resolution containing no reference to any plans or specifications. This resolution should have contained the description; that is, the plans and specifications, or should have referred the property owners to them in such a way as to enable them to be found by the taxpayers, who would then have an opportunity to construct their own sidewalk or protest against the construction of same. This right was not accorded the property owners. This is a substantial noncompliance with the requirements of the statute, and in this view we are sustained by the case of City of Jackson v. Williams, 92 Miss. 301, 46 So. 551, wherein Mr. Justice MAYES said:

"Counsel for appellants contend that this ordinance was not void because of the failure to describe the kind and width of the sidewalk, because, they say, under the general ordinances of the city such specifications could be found; but no reference is made in the ordinance to the general ordinance. We do not think this contention sound. In the ordinance declaring the improvement necessary must be found the description of the work, or there must be embraced in it a reference to such plans and specifications on file with the city as would give the information, or it must be placed in some subsequent ordinance. This was what was done in EdwardsHouse Co. v. City of Jackson, 91 Miss. 429, 45 So. 14. The ordinance declaring the work or improvement necessary must have in it such facts as will fully enable the property owner to find out what work is required to be done. The minute details of the work need not be set out in the ordinance, provided the ordinance incorporate the plans and specifications by which the work is to be constructed by reference; such plans and specifications being then on file. This is what was held in the Edwards House case. When a municipality is proceeding under Annotated Code 1892, sections 3011, 3012, it is not proceeding under its general powers or ordinances, but is proceeding under the special powers conferred on it under special circumstances, and it must pursue with strictness all the conditions precedent to its right to exercise the particular power. A compliance with these conditions constitutes its power to act, and is jurisdictional in its nature. Mere irregularities and informalities will not invalidate the proceeding; but when there has been a substantial noncompliance with the statute it is fatal to the proceedings, and the failure to duly inform the property owner, in an ordinance duly published, of the kind and character of the walk intended to be laid, thereby failing to give him such information as would enable him to intelligently determine whether he desired to protest against the intended improvement, is a fatal departure. It is manifest from the statute that the legislature intended to give the property owner every opportunity to act intelligently and with full knowledge."

We do not think there is any substantial difference between the language of the statute here under review and the statute reviewed by Mr. Justice MAYES in the abovecited case. We might add that the resolution was published literally as passed by the board; and neither in the publication, nor in this resolution, nor any other, was reference made to the plans and specifications, so that the property owner interested might be intelligently informed as to the description of the proposed work. The demurrer was properly sustained in this particular, and, in our opinion, the bill cannot be maintained nor now be amended so as to obviate this objection.

Affirmed, and bill dismissed.