City of Jackson v. Tucker

101 So. 708 | Miss. | 1924

Anderson, J.,

delivered the opinion of the court.

Appellant, city of Jackson, sought to establish and enforce a lien against the property of appellee, J. W. Tucker, for the payment of the costs incurred by appellant, in constructing a curb and gutter on the street upon which •appellee’s property abutted — 'Momingside avenue in the city of Jackson. By agreement of the parties, a jury was waived, and the law and facts of the case were tried by the circuit court, andAjudgment was rendered in favor of appellee, from which appellant appeals to this court.

We find it necessary to decide only one question— whether the proceedings of the municipal authorities by which it was sought to charge appellee’s property with the cost of the curb and gutter on the street on which it abutted were so irregular as to be void, the proceedings were under chapter 260, Laws of 1912; Hemingway’s Code, sections 5941 to 5965', inclusive.

Under section 5 of the act, Hemingway’s Code, section 5945, the resolution of the mayor and board of aldermen declaring the proposed special improvement necessary is required to “describe the character of special improvement proposed,” and section 6 of the act, Hemingway’s Code', section 5946, requires the publication of such resolution. Sections 8, 9, and 10 of the act, Hemingway’s Code, sections 5948 to 5950', inclusive, provide for protests by property owners affected, and a hearing and determination of such protests by the mayor and board of aldermen. Section 12, Hemingway’s Code, section 5952, provides what persons may object to proposed special improvements. Sections 19, 20', and 21, Hemingway’s Code, sections '5959' to 5961, inclusive, provide for the assessment of the cost of construction against the abutting property owners affected] the publication of notice to such property owners of the assessments as made, and for a hearing of their objections to such assessments.

The resolution passed by appellant, declaring the necessity of the special improvement proposed, describes such improvement as follows: In the caption or preamble, as “gutters.” In section 1, as'“gutters.” In section 2, as “curb and gutter.” In section 4, providing for the levy of a special tax against the abutting property to defray the cost of construction, as “said sidewalk.” In section 5, as “sidewalk.” While the resolution as published describes it as follows: In its caption or preamble, as “sidewalk, curb and gutter.” In sections 2 and 3, as “sidewalk, curb and gutter.” In section 4, as “sidewalk.” In section 5 in two places it is described as ‘ ‘ said sidewalk. ’ ’ In the resolution ordering the street commissioner to do the work it is described in three places as “curb and gutter,” and one place as “sidewalk.” In the notice to the abutting property owners of the special ' assessment to pay the cost of the improvement, it is described as “curbs and gutters.” And it is so described in the ordinance levying the special assessment. The improvement actually made was the construction of curbs and gutters.

It was held in City of Jackson v. Williams, 92 Miss. 301, 46 So. 551, that a municipality proceeding under a statute providing for special improvements of this character must pursue the statute with strictness; that all conditions precedent to the exercise of the power must be strictly followed.

The publication of the resolution declaring the necessity of the public improvement and a description of the same as required by section & of the act, Hemingway’s Code, section 5946’, and the publication of the notice of the assessment of the abutting property as required by. section 20 of the act, Hemingway’s Code, section '5060, are jurisdictional. Their publication as required by the statute is a condition precedent to any further action. The proceedings under this statute are proceedings in rem. Jurisdiction is acquired by constructive notice, by means of the publications named. By that method property owners are given an opportunity to protest and have such protests heard. Such statutes must be strictly pursued.

There were so many conflicts between the character of the work to be done as described in the two published notices and the various resolutions and ordinances touching the matter that property owners were furnished no certain guide. There was not only conflict in that respect between the two. notices as published, but there was conflict between such notices and the resolutions and ordinances on the subject. The special improvement to be made should be described with reasonable certainty, the notice to property owners required to be published should correspond as to the character and description of the improvement with the resolutions and ordinances on the subject. The property owner has the right to rely on the description of the improvement stated in the first notice required to be published. He might have no ob-> jection to the construction opposite his property of a sidewalk,’ gutter, and curb, but be very much opposed to the construction of either one or the other alone. If such notice as published is so conflicting and confusing in'its different parts, as well as-with the resolution authorizing it, as to fail to inform the property owner of the character of the special improvement proposed, he has the right to disregard, the proceeding. He is not required to make any further inquiry whatever, and it cannot be said that such a defective notice is sufficient to put the property owner on inquiry, for that position presupposes that he has seen the notice. Jurisdiction by constructive notice is given on the theory that actual notice may or may not reach the party. In other words, as to what the property owner should have reasonably done had he seen the defective notice is not a question of legitimate inquiry. The inquiry is whether the statute providing for constructive notice has been strictly complied with. If it has, jhrisdiction is obtained; if it has not, there is no jurisdiction.

For the reasons stated, we hold that the proceedings of the municipal authorities to charge appellee’s property with the cost of the special improvement of “curb and gutter” are void.

Affirmed.