Dean v. Town of Senatobia , 142 Miss. 815 ( 1926 )

^* Corpus Juris-Cyc References: Municipal Corporations, 28 Cyc, p. 1005, n. 17 New; p. 1227, n. 78; p. 1229, n. 94 New; p. 1240, n. 62. Preamble, 31 Cyc, p. 1156, n. 44. This is an appeal from a decree directing the sale of certain property owned by the appellant abutting on a public street in the town of Senatobia for the payment of the appellant's proportion of the cost incurred by the town in graveling the surface of the street.

The resolution providing for the graveling of the street was adopted in 1923 under the provisions of Chapter 260, Laws of 1912 (Hemingway's Code, section 5941 et seq.), which provides that the cost of special improvements on the streets of a municipality may, in the discretion of its mayor and board of aldermen, be assessed against the abutting property owners. Section 5 of the statute (Hemingway's Code, section 5945) provides that —

"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," etc.

The resolution providing for the special improvement here in question recites that —

"Whereas the board of mayor and aldermen of the town of Senatobia, Mississippi, deem necessary an improvement requiring an unusual outlay and cost in excess of the general improvement fund of said town upon Strayhorn street beginning at Panola street and extending west to the corporation line of said town; therefore be it resolved by the mayor and board of aldermen of said town of Senatobia, Mississippi, as follows."

The remainder of the resolution complies with the provisions of the statute relative thereto.

A protest against the assessment of the cost of this special improvement against abutting property owners was filed under the provisions of section 8 of the statute (Hemingway's Code, section 5948), which was by the mayor and board of aldermen adjudged to be signed by less than a majority of the property owners residing on the street, and thereafter the street was graveled by the town, and, as hereinbefore stated, it seeks by this suit to recover from the appellant his share of the expense thereof.

No appeal was taken to the circuit court from the order of the mayor and the board of aldermen adjudging the protest against the making of the improvement to be insufficient, or from the order fixing the assessment against the property owners for the cost of the improvement.

The answer of the appellant to the bill of complaint alleges that the protest against the making of the improvement was signed by a majority of property owners residing on the property owned by them and abutting on the street, and that the order of the board adjudicating the contrary was "entered by deliberate fraud, trick, chicanery, and misrepresentation, and is a void order, fraudulently made and entered."

The fraud intended to be charged by this general language was more specifically charged by other allegations of the answer, which it will not be necessary to here set forth, for the reason that the appellant's complaint based thereon will fully appear from the evidence which he sought, but was not permitted by the court to introduce in support thereof.

One of the appellant's contentions is that the ordinance is invalid, for the reason that it fails to "declare the improvement necessary." The declaration of the necessity of the improvement does not appear in the main body of the resolution, but in the whereas or preamble by which the main body of the resolution is introduced, and the argument of the appellant is that a preamble to a resolution is no part thereof, and consequently this resolution fails to "declare the improvement necessary." In support of this contention we are referred to cases stating the familiar rule that the preamble to a statute or ordinance is no part thereof, and can be referred to only as an aid in interpreting the statute or ordinance by which it is introduced.

The declaration here required to be made by the mayor and board of aldermen when making a special improvement that the improvement is necessary is for the purpose of adjudicating the necessity for the improvement, and that adjudication can as well appear in the preamble to, as in the main body of, the resolution. In fact, a preamble to a statute or ordinance is intended to serve just such a purpose, for it is nothing more than "a prefatory statement or explanation or a finding of facts by the power making it, purporting to state the purpose, reason or occasion for making the law to which it is prefixed."Continental Oil Co. v. Santa Fe, 177 P. 742, 25 N.M. 94, 3 A.L.R. 398; Hanly v. Sims, 93 N.E. 228, 94 N.E. 401,175 Ind. 345; Lewis' Southerland Statutory Construction (2 Ed.) section 341. The statutes and ordinances dealt with in the cases cited by counsel for the appellant were not such as the legislature or municipal board could enact only after it had found the existence of some particular fact.

The use of the word "deem" in the resolution instead of the word "declare" is of no importance. The requirement that the resolution declare the improvement necessary can only mean that the mayor and board of aldermen must embody in the resolution a statement that in their opinion the improvement is necessary, and that is exactly what was done by the mayor and board of aldermen here when they set forth in the resolution that they "deemed" the improvement necessary.

The evidence which the appellant sought, but was not permitted to introduce in support of his charge of fraud on the part of the mayor and board of aldermen in the adoption of the resolution, was:

(1) Only twelve property owners actually resided on property owned by them abutting on the street ordered by the resolution to be improved, and nine of them protested against the improvement.

(2) The mayor and board of aldermen either caused T.H. McCants to make a fake deed to A.G. Johnson so that A.G. Johnson could be counted as a property owner on that street, or they knew that this fake deed was made, and they counted A.G. Johnson as a property owner on that street, knowing that he was not.

(3) R.W. Locke and J.E. Tate, to the knowledge of the mayor and board of aldermen, did not live on property abutting on the street, but were counted by the mayor and board of aldermen against the petition.

(4) "The mayor and board of aldermen counted the Senatobia High School building as a property owner actually occupying or using or residing on said street as a property owner."

(5) The mayor and board of aldermen "induced, or attempted to induce, H.W. Baker to withdraw from that petition" (meaning the protest) "by stating to him that the improvements would not cost him more than twenty-five dollars."

(6) The mayor and board of aldermen induced Mrs. S.J. House to agree to withdraw her name from the protest.

(7) "The members of the board stated publicly as a board that they knew that they were taking the law into their hands, but that they proposed to grade and gravel that street, and they were not going to let any little property owners interfere."

All of the evidence here sought to be introduced would, of course, have been competent in a direct attack on this resolution, as by an appeal therefrom to the circuit court, but cannot prevail the appellant in this collateral attack thereon, unless: (1) The courts will restrain the enforcement of a municipal ordinance or resolution fraudulently or corruptly passed; and (2) it is sufficient to show that the resolution was so passed.

We are not here called on to determine how far, if at all, the courts will go in restraining the enforcement of an ordinance or resolution of a municipal board which was fraudulently or corruptly passed, and consequently we will express no opinion relative thereto, for the reason that we are of the opinion that the evidence offered is insufficient to show that the resolution here in question was fraudulently or corruptly passed.

The evidence offered in paragraphs 1, 2, 3, and 4 goes only to the correctness of the adjudication of the mayor and board of aldermen that the protest was not signed by a majority of the property owners could have been considered on an appeal to the circuit court, and consequently presents no ground for a collateral attack on the resolution.

If the mayor and board of aldermen fraudulently induced any one not to protest against the improvement on the street, the only one who can complain thereat is the one who was so induced not to protest.

Affirmed.