Edwards House Co. v. City of Jackson , 138 Miss. 644 ( 1925 )

In my judgment the majority opinion is squarely in the face of the holding of this court in Crump v. Colfax County, 52 Miss. 107, M.E. Church South v. Vicksburg, 50 Miss. 601, and the greater number and better reasoned authorities in other jurisdictions. 7 R.C.L. 946, section 22; 15 C.J. 559, 560, section 256, and cases in notes. It was held in the Crump case that a county was liable on an implied contract for the reasonable value of benefits received by it by virtue of a void contract. The contract under consideration in that case, although held void because the statute authorizing it had not been pursued, was about a subject-matter concerning which the county could have lawfully contracted. The contract was held void because it was not evidenced by order entered on the minutes of the board of supervisors. The board was authorized by statute to contract for the lease of a suitable building for county offices. A void contract for the purpose was made. By virtue, however, of the void lease, the county officers occupied the leased building. The county refused to pay the lessor the agreed rental therefor because the contract of lease was void. The court held that notwithstanding the illegality of the contract, the lessor was entitled to recover as upon an implied contract the reasonable rental value of the building so rented and used by the county; that the county would not be permitted to receive the benefits without paying the reasonable value thereof.

In the M.E. Church case, the city of Vicksburg, without the consent of the owner, the church, took and converted a lot of brick. There was no authority of law whatever for the action of the city. The city was held liable upon the doctrine of implied contract. It was held that the city having converted the property of the owner was under duty either to restore the property or its equivalent in value; that when the brick were taken and converted the law implied a promise on the part of the city to pay their value to the owner.

The supreme court of the United States and the courts of many of the states, as will be seen by reference to the above citations to Ruling Case Law and Corpus Juris, have held that where a county receives and retains substantial benefits under a contract which it was authorized to make, but which was void because defectively executed, it was nevertheless liable on an implied promise for the reasonable value of the benefits received.

Undoubtedly the city of Jackson had the right to acquire the land involved either by condemnation or purchase and conveyance for use as a street. Certainly there is no necessity of citing authorities to that effect. This is a case therefore where the city by pursuing the law could have acquired a valid conveyance to this strip of land. It was a subject-matter about which the city could have legally contracted. The contract it did make, as this court held, was absolutely void. By it no title passed to the city. The rights and obligations of the respective parties set out in the contract were wholly unauthorized by law. But it should be borne in mind, as stated above, that there was no want of power on the part of the city to purchase the land. The contract was void because the power was exercised in an illegal manner. The majority opinion holds, however, that the contract was ultra vires. That means that the making of the contract was beyond the power of the city, beyond the scope of its authority. 3 Bouv. Law Dict. (Rawles' 3d Ed.), p. 3345. In my judgment there is where the court has gone wrong; that is the turning point in this case. I concede that if the city made a contract beyond the scope of its powers, the contract is void and there is no liability either on the contract as made or upon an implied promise to pay for benefits received thereunder. But that is not the case here; this was an attempt to purchase land by the city for a street — a thing that could have been legally done, a thing within the scope and authority of the municipality, a thing not ultra vires. The contract, although void, resulted in the city receiving benefits, namely a street for a certain period of time for the traveling public. Appellant in the meantime lost the use of its property, and in addition the city by the construction of a street and sidewalks thereon damaged it. Appellant sued not only for the use of the property by the city for a street, but also for the damage done it by converting it into a street and sidewalks. Why should not the city pay for the benefits received by it and also for the damage done appellant's property? I am unable to see any reason why it should not.

Under the majority opinion, what is going to become of the rights of landowners in municipalities under section 17 of the Constitution, which provides that private property shall not be taken or damaged for public use except upon due compensation being first made, etc.? It has been held in several cases that this constitutional provision applies to municipalities and prohibits them from taking or damaging private property without due compensation, and that both direct and consequential damages should be allowed the owner. Vicksburg v. Herman, 72 Miss. 211, 16 So. 434. And it has been held under this constitutional provision that a city, by lowering an established grade according to which abutting lots had been improved, had to compensate the owners for all damages thereby sustained. Vicksburg v. Herman,supra; Robinson v. Vicksburg, 99 Miss. 439, 54 So. 858;Jackson v. Williams, 92 Miss. 301, 46 So. 551; Slaughter v.Meridian Light Plant, 95 Miss. 251, 48 So. 6, 1040, 25 L.R.A. (N.S.) 1265. And it has been held also under this provision of the Constitution that where a municipality vacated and closed a street, it deprived the owner of abutting lots of a right which was a property right, and which could not be taken except on due compensation being first made. Laurel v. Rowell, 84 Miss. 435, 36 So. 543; Berry v. Mendenhall, 104 Miss. 94, 61 So. 163. The city of Jackson took appellant's property for a street and damaged it. That is undisputed. The fact that it was used and damaged by virtue of a void contract does not relieve the city from liability for such use and damage, for in its taking and use the city acted within the general scope of its powers, although it acted illegally. The landowner whose property has been taken for a street by a municipality by virtue of a void condemnation proceeding may recover his property as well as the damage done it while so unlawfully held by the municipality. I am unable to see the difference between an unlawful taking by condemnation and an unlawful taking by contract. Except in my opinion for a greater reason compensation for use and damage is due in the latter case. According to the reasoning of the majority opinion, a municipality could never be held liable for a tort even though acting within the general scope of its powers, for all such acts would be ultra vires. If that be true, what becomes of all the tort cases in our books growing out of defective streets and sidewalks of municipalities as well as other wrongs committed by them? There is no statute making them liable.