City of Jackson v. Williams

46 So. 551 | Miss. | 1908

Lead Opinion

Mayes, J.,

delivered the opinion of the court.

The mayor and board of aldermen of the city of Jackson or- ' dered the property owners living on South State street to construct certain sidewalks between certain streets, designated in the ordinance. The property owners along the street designated, failing to make the proposed improvement as required by the ordinance, the city constructed the walks, raising the grade of the street at certain points, lowering it at others, and widening the street in certain other places. After this was done, Lula B. Williams and the other defendants instituted their several suits in the circuit court, claiming damage for the action of the city in widening the street and raising and lowering the grade in front of their property. While these suits were pending in ■the circuit court, and for the purpose of avoiding a multiplicity of suits growing out of the same transaction, the city filed a bill in the chancery court enjoining the defendants from prosecuting their suits in the circuit court, and further praying that all the defendants be compelled to come into the chancery court and litigate their claims in one suit. The bill has a double aspect, in that it also seeks to charge the property owners with the cost of constructing the sidewalks in question and to have this cost enforced as a lien on the abutting property. The second feature of the bill is a proceeding under Code 1892, § 3012. The defendants all answer the bill of complaint, asserting their claim for damages in the various sum set out in the answers. The answers deny the validity of the ordinance under which it is sought to charge their property with the cost of constructing the sidewalk, deny liability to the city for such cost by reason of the alleged invalid ordinance, deny that they are in any way benefited by the so-called improvements, but claim that they have been •damaged by the construction of the side-walks.

The decree of the lower court denied to the city the right to tax the property of defendants with the cost of the sidewalks, and further allowed the defendants damages in certain amounts set out in the decree. The city prosecutes an appeal, claiming that the chancellor erred in not allowing the cost of the walks to be taxed against the property of defendants, and further ■erred in not denying to the defendants all relief prayed for in the cross-bill. The defendants in the court below cross-appeal and allege as error that the amounts allowed them as damage were insufficient. It is shown in the record that the city was proceeding under the powers given it by Annotated Code 1892, §§ 3011, 3012, in relation to special improvements on the streets, and that it was the intent and purpose of the city that the expense should be borne by the property owners abutting the street. In order to do this, when it is intended to fix the cost of the special improvement on abutting property,, a special method is to be pursued by the municipality, as indicated by Annotated Code 1892, §§ 3011, 3012, and unless the municipality has complied with the method required by the statute it cannot tax the cost of the so-called improvement on the abutting property. Does the record in this case show such compliance with the statute as would give the-municipality the power to tax the cost of this so-called special improvement against the abutting property here %

Annotated Code 1892, § 3011, provides that “when the mayor and board of aldermen shall deem any improvement which requires unusual outlay and costs in excess of the-general improvement fund, of which the board shall be the judge, on any street, lane, alley, avenue or sidewalk, or part thereof necessary, a special tax therefor may be levied. In such; case the board shall, by resolution, declare such work or improvement, describing it, necessary, and publish, the resolution as an ordinance is required to be published,” etc. Acting under this section of the code, the mayor and board of aldermen passed a general ordinance, being section 326, ch. 32, Revised Ordinances of the city, which is broader in its requirements as-to description than is the statute itself; but since it is our view that, if any succeeding ordinance dealing with the subject of' special improvements complies with the statute, such succeeding ordinance is valid, even though it be not a compliance with-a prior ordinance attempting generally to fix a rule upon this subject, we take no' notice of section 326 of the Revised Ordinances. Whenever the municipality follows the requirements-of the statute, that is sufficient. The first ordinance passed by the mayor and board of aldermen looking to the construction of the sidewalks in question was on the 6th day of December, 1904, and is as follows, viz.:

“An ordinance requiring the construction of sidewalks on the west side of State street, from Tombigbee street to' Silas Brown street, and on both sides of Silas Brown street, from State street to the A. & V. R. R., and on Silas-Brown (north side) from the A. & V. R. R. to the Pearl River Bridge.

“Section 1. Be it ordained by the mayor and board of aider-men of the city of Jackson, that it is necessary that sidewalks be built on the west side of State street, from Tombigbee street to Silas Brown street, and on both sides of Silas Brown street from State street to the A. & V. R. R., and on-the north side of Silas Brown street, from the A. & V. R. R. to South Jefferson street, and that the property owners abutting said sidewalk be-notified to build same or petition against building of same in twenty days.

“Sec. 2. That the street commissioner be ordered to use such dirt for the excavation on South State street in front of the school lot as may be necessary to raise the sidewalk hereby ordered laid.

“Sec. 3. That for cause this ordinance shall take effect and be in force from and after this date.”

This ordinance was the only ordinance passed on this subject and was duly published. As a condition precedent to the right of the city to require walks to be laid at the expense of the abutting property owners, it was not only necessary that it declare such work or improvement necessary, but it was just as essential to go further and describe what work or improvement was- intended should be placed there. All that the ordinance declares is that it is necessary that “sidewalks be built on the west side of State street, from Tombigbee to Silas Brown street.” This cannot be said in any sense of the word to be a description of the work to be done. What kind of sidewalks ? How wide shall they be ? Where shall the property owner find out these things ? No reference is made in the ordinance to any plans and specifications on file in any of the city offices where this information may be had. The statute contemplated that full notice should be given to the taxpayer of all that was to be done, that he might have full opportunity to consider the cost and determine whether he would submit or protest. A walk is not described by merely calling it a “sidewalk.” The information that the law contemplated that the municipality should give to the property owner, was not conveyed by the ordinance, and the ordinance was on that account void. As to all essential things statutes of this nature are to be strictly construed.

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 iit 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 Edwards House Co. v. City of Jackson, 91 Miss., 429, 45 South., 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 is held in the Edwards House case. When a municipality is proceeding under' Annotated Code 1892, §§ 3011, 3012, it is not proceeding under its general powers of 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 be 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.

But if we were wrong as to the invalidity of this ordinance,, still the city was without power to tax the cost of constructing1 these sidewalks against the abutting property, because the five-days’ notice required by Code 1892, § 3012, was not served on the property owners as required. The chancellor expressly adjudicated this, and the record fully sustains this finding. The-five days’ notice required to be served on the property owner is; not of necessity for the improvement merely, as is argued by-counsel for appellant, for that has been determined by the mayor- and board of aldermen; but the five days’ notice must be a notice-to the owner to construct the wall?:, or on failure the city would-do so. Since both the ordinance and "the five days’ notice were-void it follows that the mayor and board of aldermen were without authority to require the property owners to lay the walks; and, being without authority, they could create no debt which could operate as a lien on the abutting property for the laying of these walks. Neither the property, nor the owner, was liable for the cost of the improvement. It follows from this that the decree of the chancellor disallowing the claim of the city for the cost of the improvement must be affirmed on direct appeal.

We approach now the consideration of the questions raised by~ cross-appellants. They claim that their property has been damaged by the action of the city in raising and lowering the grade-of the street in laying the walks, and the evidence supports their-claim. It is further claimed by some of the defendants that the-■city has not only damaged their property, but has torn down fences and destroyed shrubbery located on their private prop-erty, and actually taken the property of some of the defendants, varying in width from one to five feet, being a strip of property ■abutting the street and formerly in the yards of defendants and belonging to them. The grade of the street has been so raised ¡as to create a small levee in front of the property of some of the 'defendants, leaving the property below the level of the street ■and interfering with the natural flow of the water. Nothing is now so important to the private citizen as to the question of the ,• extent to which his right of private property may be invaded by a municipality and taken or damaged for a so-called public use without adequate compensation being made to him for such taking or damage. The right which a municipality has to take -or damage private property for public use is no greater because it has an element of sovereignty in it than is that of any other person or corporation having the eminent domain power. No milder or more liberal rule of interpretation of the constitution will be indulged in where the taking or damaging is done by a .municipality than is to be applied to all alike. The private citiv ■zen is no more called upon to allow his property to be taken or •damaged for a public use by a municipality without adequate ■compensation than he is required to submit to the taking or ■ damage by any other corporation. The tendency of the modem municipal governments is too frequently towards an ignoring ■ of private rights of property, and in many instances border on-■the despotic. Our constitution is broad enough to curb within proper limits such tendency, and to fully and adequately project each and every property owner, and it is the duty of tbe ■courts to see that the rights secured to private persons are enfórcd with unvarying strictness. In the case of McElroy v. Kansas City (C. C. A.) 21 Fed., 260, the court said: “The ur.gency of the so-called public improvement rests as a constant menace upon the sacredness of private property, and no duty is more imperative upon the courts”than a strict enforcement of constitutional provisions intended to protect every man in his own.” Section 17 of the constitution of the-state provides that private property shall not be taken or damaged for public use, except upon due compensation being first made to the owner, etc. Under this section-of the constitution the citizen finds his protection, and when there is the slightest invasion of the property rights of the private citizen for a public use, thereby bringing to him damage, he is entitled to recover. Since the decision in the case of City of Vicksburg v. Herman, 72 Miss., 211, 16 South., 434, it has been settled that the citizen has a right to recover against a municipality for damage sustained by the raising or lowering of an established grade. To go over this discussion again, in view of the decision, is entirely unnecessary.

But counsel for appellant argue-that there should have been no allowance of damage, for the reason that the chancellor erroneously found as a fact that the city had previously established a grade, when as a matter of fact the old sidewalks were laid on the natural surface of the earth, without the city ever having established a grade. Under our constitution it can make no difference whether the damage is occasioned by the initiation of the grade for the first time or the altering of an establishd grade. Blair v. City of Charleston, 43 W. Va., 62, 26 S. E., 341, 35 L. R. A., 852, 64 Am. St. Rep., 837; 27 Am. & Eng. Ency. of Law (2d ed.), p. 142, and citations; Werth v. City of Springfield, 78 Mo., 117. Under our constitution, where property owners have built their property with reference to a particular grade in a municipality, that grade cannot afterwards be changed, so as to produce damage to the property owner, without compensating him for the damage done. This is just as true of a case where a municipality has failed theretofore to establish a grade, and initiates it for the first time, as of the case when, once having established it, it is changed. The natural surface of the street, acquiesced in for a long while by the city,- and to which the city has allowed its citizens to conform their buildings, may fix just as firmly an established grade, within the meaning of the constitution prohibiting* private-property from being taken or damaged without due compensation, as if fixed by a corps of engineers. Nothing contrary to this is held in the case of Vicksburg v. Herman, but the doctrine herein declared is expressly recognized there. The only-question is: Has there been a taking or damaging of private property for public use? If there has been either, no matter how insignificant may be the damage, the private person finds his protection in the constitution of the state.

Under the facts o-f this case the decree of the chancellor did not allow sufficient damage to cross-appellants. The testimony of the cross-appellants stands uncontradicted as to the amount of damage sustained by them, and while it is manifest that even under their testimony they claim more than is properly allowable, yet as the record now stands the damage allowed by the chancellor was insufficient. We are not to be understood as intimating how much the chancellor should allow, but leave this question to be determined on a fuller hearing, when the city has had an opportunity to controvert the question of damage. If any of the property of defendants has been taken, the value of the amount of land so taken should be allowed to the owner. If the city has destroyed the fence of any of the defendants, the value of the fence is another element of damage that should be allowed the particular owner of same. If the city has destroyed the shrubbery of any of the defendants, that is another element of damage. Whenever there has been a taking of private property for public use, the amount of the recovery should be the-value of the property taken, no matter what may be the character of the property. When there has been merely a damage done to private property, which is peculiar to the owner, not shared in by the public at large, the true rule for the measure of damage is to be found in the case of Meridian v. Higgins, 81 Miss., 377, 33 South., 1. There is no analogy between the case now presented and the ease of Edwards House Company v. City of Jackson. There was no contention in the Edwards House case of the talcing or damaging of private property for public use. The cases are quite distinct, both in fact and purpose. •--! - '

The case is affirmed on direct appeal, and reversed on cross-appeal, allowing all parties to take such further testimony on the questions involved as they may deem proper.

Reversed and remanded. '

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Concurrence Opinion

Whitfield, C. J.,

delivered the following special concurring opinion.

I think this case should be affirmed on direct appeal, but not for the reasons given in the opinion in chief. The ground on which I think we are bound to affirm is that the record shows, ■ according to the testimony of five witnesses against one, that the five days’ notice required by law to be given for “the necessity for the improvement,” in the language of the statute and of the ordinance, was not given. These five witnesses testify most positively, emphatically, and in a most absolute fashion that no notice of any kind whatever relating to the paving was ever given to them. The chancellor has found as a fact, on the weight of the testimony, that this is true, and, having so found, he was necessarily compelled to hold the special ordinance void. The opinion in chief rests the voidness of this special ordinance upon the single ground that it failed to prescribe the width of the pavement and to describe the material out of which it was to be made. From this view I emphatically dissent, for the reasons now to be stated.

Chapter 32 of the Revised Ordinances of the city of Jackson, in evidence in this case, sets out fully and specifically general ordinances relating to sidewalks, how they shall be constructed or.repaired, how the specifications therefor shall be dealt with, and every other particular relating to sidewalks; and in section 330 and section 331 it is specially provided as follows:

“330. Specifications. — Every sidewalk hereafter constructed shall have a surface not inferior to that of a well-laid pavement of all hard brick on a good foundation, except by special permission of the mayor and board of aldermen, and shall have a curb of stone or of brick set in cement mortar, provision being made for conveying the surface water, not over the pavement, but through a surface drain beneath it. For the materials and manner for constructing and repairing sidewalks and curbs, the city engineer shall prepare specifications, which shall be on file in his office for inspection.

“331. Width and Elevation. — The width of the sidewalk and elevation of the curb shall be the same for both sides of the street, whenever practicable. The width of each sidewalk from curb to property line shall be between one-fifth and one-sixth of the total width of the street, and, more specifically, shall be that width shown by the standard cross-section of the street adopted and on file in the office of the city engineer: provided that any property owner may, if he so elect, increase the width of the sidewalk by extending it inside the bounding property line, this added width being paved and maintained in the same manner as the rest of the sidewalk. The width paved shall be the entire width on streets paved with vitrified brick and on*those with sidewalks six feet and less in width. On other streets at least half the sidewalk width shall be paved, this pavement being in any case not less than six feet wide and being contiguous to property line, or not more than three feet from it: Provided, that on North street, between Amite street and Fortification street, each sidewalk shall be twenty feet wide and paved at least eight feet in width next to the property line. The location of shade trees and of poles, if on the sidewalk, shall be that shown by the standard cross-section.”

Here, then, is a general ordinance, full, complete, and specific in every detail, as to the width of 'the pavements and the kind of material out of which they are to be constructed. Most manifestly this general ordinance is necesarily compelled to be read in connection with every special ordinance relating to sidewalks that may from time to time be passed by the city. It certainly cannot be sound to hold, as the majority do hold, that every speoial ordinance must be read by itself, and not with reference to this general ordinance, so that, unless each special ordinance for itself sets out the width of the sidewalk and the materials out of which it is to be constructed, etc., such special ordinance would be void. It might just as well be held (indeed, it would be logically necessary to hold), in that view, that everything in the general ordinances embraced in chapter 32, should be set. out in every special ordinance. There is no escape from this result. If it be true that you may disregard sections 330 and 331 of chapter 32, and must set out the width of a sidewalk and the material out of which it is to be made every time the city may order a sidewalk to be made, just as certainly, if logic be logic, you must also set out, in every special ordinance, all the other particulars provided for in said chapter 32 relating to the construction of sidewalks. Fish cannot be made of one section of this chapter, and fowl of another. It seems to me too obvious for discussion, therefore, that the city had the right to pass such general ordinances as are set out in chapter 32, in so far as they conform with Annotated Code 1892, §§ 3011, 3012, wherein shall be stated once for all, or until the general ordinances of the city should be changed, all that need- be set out with respect to the construction of sidewalks, as, for example, the width of the sidewalk and the material out of which it is to be made, and what should be done with respect to specifications, etc., and that every special ordinance passed by the city, relating to construction of sidewalks, while said chapter 32 is in force, shall necessarily have read into it all the provisions of said chapter 32 on the subject. I cannot entertain a doubt of the soundness of this view on the subject; and, if it be sound, then my brethren have announced a manifestly erronneous view in the majority opinion, when they declare that this special ordinance, passed while this chapter 32 was in force, had itself to prescribe the width of the pavement and describe the. materials out of which it should be constructed. I regard -this holding as, in effect, contrary to the principles announced in the case of Edwards, etc., Co. v. Jackson, supra, recently decided. See Same case, 45 South., 14, syllabus paragraph 2. It follows, therefore, that while I dissent entirely from the opinion in chief, setting out the reasons for affirming the decree on the direct appeal, I yet concur in the result, but for the single reason which I have myself stated above.

Coming to the cross-appeal, I have one or two observations to make:

First. I think it is perfectly within the power of a city, although it may have had sidewalks once constructed to a particular grade, to have the same sidewalks reconstructed to different grades, in its development, in the course of its expansion and growth from decade to decade, as the needs and interest of 'the city may require, in each particular decade. What might be a perfectly sufficient sidewalk for a hamlet would not do for that hamlet when it gets to be a town, nor for that-town when it gets to be a city. What may do very well for a city of the smallest allowable population under the statute will not do at all for a city of fifty thousand or more people, with all the accompanying elements of civilization naturally belonging to such a city, in its advanced growth and development. It seems to me that what was said in the case of Nugent v. City of Jackson, 12 Miss., 1040, 18 South., 493, covers perfectly all that need to be said along this line. Cities are not to be hampered in their advance from rude and primitive beginnings to later and more splendid municipal conditions, necessary in modern life, by restricting their power to adjust sidewalks to different grades from time to time and their power to change the materials out of which such sidewalks are to be constructed. So to hold is to obstruct progress and to keep a city in its swaddling clothes forever. Of course, as held in the Herman case, 12 Miss., 211, 16 South., 434, all damages which an abutting proprietor may actually sustain, peculiar to himself and different from those damages which may result from the construction of pavements to his fellow citizens in common, if the evidence shows such damages -were caused by the improper or illegal construction of the sidewalk, such abutting proprietor may recover. This the constitution guarantees to him; but this is the extent of his right. It is not damage which may be sustained-by reason of proper and legal construction of sidewalks, for which an abutting proprietor may recover. Such damages are incidental to residence in cities, and he who dwells in a city agrees, as part of the civil compact when he became a citizen, to bear that part of the burden in respect to all public improvements. It is only when this proper legal line is passed, and damages are inflicted or property illegally taken as the result of 'an improper or illegal construction of the sidewalk, that the abutting proprietor can claim to recover. I have this much to say on this particular feature of the opinion in chief on the cross-appeal, to exclude any conclusion that I concur in the view that an abutting proprietor is entitled to recover damages caused by the construction of a sidewalk merely because, once having laid a sidewalk in conformity with the city’s orders, he may be thereafter, from time to time, as a city’s needs demand, required to reconstruct the same sidewalks, to meet the exigencies of the city at the time of such subsequent orders.

I concur, however, in the result, also, on the crossrappeal, because, apd only because, the only evidence in the case as to the amount of damage is that furnished by the cross-complainants themselves. I do not understand why it was that the city did not introduce testimony with respect to what dajnages, if any, were sustained. Since the chancellor had no testimony before him except that of the cross-complainants, and since their claims exceed the amounts allowed, there being nothing to rebut their testimony, I do not understand how the chancellor reached his conclusion as to amounts, and it- does not seem to me that those conclusions are supported by the testimony in the record. For that reason, and that reason alone, without expressing the slightest opinion as to the true quantum of damages allowable to the defendants, I concur in the result reached in reversing the decree on the cross-appeal.

I wish to make just one other observation: It was claimed by cross-complainants that part of the lots had been bodily taken, and that they should be compensated for the value of the parts of their lots so taken. The chancellor expressly recites in his decree that he reserved that matter for future decision, when the principles of the case shall have been settled. As, therefore, the chancellor decided nothing on that proposition, we, as an appellate tribunal, can decide nothing on it; and I do not understand my brethern’to have intimated any opinion on this proposition. That matter is remitted, to be decided first by the chancellor, before we shall have any power to review him on that matter. It may very well be said — in fact, I think it ought to be said — that the testimony in support of the claims for damages below takes into view very largely the value of those parts of the lots alleged to have been entirely taken; and so it appears to me the difficulty encountered by the chancellor in fixing the damages, as distinct from the value of any lots taken, if any were taken, was thereby greatly increased.

In short, on the cross-appeal, it is impossible for me to understand, in this .confused condition of the testimony, and especially in view of the absence of any testimony whatever on the part of the city on this subject, how the chancellor could fix the amounts he has fixed in the decree; and for that reason alone I concur in the reversal of the decree on the cross-appeal.

Reversed.