No. 27919. | Miss. | May 20, 1929
Lead Opinion
This is an appeal from the chancery court of the Second district of Jones county from a decree dismissing the bill of complaint filed by the city of Laurel against D.B. Fox to enforce payment of a paving tax against his property, for paving a street in front of his property on a certain highway street running through the city of Laurel, known as the Ellisville boulevard. The county had maintained this street in the past as one of the county highways through the municipality, but the city desired to pave it, as it was one of the principal thoroughfares of the city, and, not being willing to pay all the expenses of such paving, an agreement was entered between the city and the county, by which the county agreed to pay the city forty per cent. of the cost of such paving *760 out of the county funds available for that purpose. The city thereupon, through its mayor and commissioners, adopted a resolution or ordinance stating that the mayor and commissioners deemed it necessary to pave that part of Ellisville boulevard from Ash street to the north line of the northeast quarter of the southwest quarter of section 7, township 8, range 11 west, in the city of Laurel, and that, in the judgment of the mayor and commissioners, the general improvement fund of the city of Laurel should not be used for the purpose of making such improvement, but that a special tax to make the improvement should be levied to pay the entire cost of said improvement, describing plainly and specifically the improvements to be made. The provisions for notice to property owners, that are contained in the statute, were complied with, and no protest was filed, and the contract was let for the paving of Ellisville boulevard, and the abutting property owners were assessed by the mayor and commissioners with the entire cost of said paving; fifty per cent. of the same being assessed to the abutting property owners on each side of the boulevard.
It appears that the Laurel Light Railway Company owned abutting property on one side of this boulevard, and was assessed with one-half of the cost of the improvement, amounting to twenty-eight thousand six hundred twelve dollars and seventy-six cents. After the assessment had been made and the contract let and completed, the county paid the city, either in cash or its obligations, forty per cent, as the county had agreed to do. A petition was signed by all the property owners, except Fox, owning property on the opposite side from the light company, requesting the city to apply the entire amount received from the county to the satisfaction of the assessment against the Laurel Light Railway Company, so as to relieve them of the assessment, and this the city did. Fox, however, did not sign the petition, and refused to pay the assessment against his property, contending *761 that the entire assessment was void, because the city did not apply the forty per cent. paid by the county equally among the abutting property owners, thereby reducing the cost to them.
The case was heard before a special chancellor, and this contention of Fox was sustained by the chancellor, and the bill by the city was dismissed, from which holding this appeal is prosecuted.
It is insisted by the city that, the assessment having been made on regular notice and in compliance with the statute, and no protest having been filed by the abutting property owners at the time, and no appeal taken, such abutting property owners were validly charged with the entire cost of the construction of improving the street, and that it is no concern of these property owners that the city took the money awarded to it by the county and applied it to the benefit of one of the abutting owners. On the other hand, it is contended by appellee that the city, having made an agreement with the county by which the county agreed to pay forty per cent of the cost of the improvement, should have made an assessment after the application of the funds received from the county for the purpose for which such funds were received.
We are of opinion that neither of these contentions is entirely correct. We think the city and the county were authorized to enter into this kind of arrangement by reason of section 8465, Hemingway's 1927 Code (chapter 255, Laws of 1914), and the case of Moore et al. v. Duck Hill (Miss.),
It follows, from what we have said, that the chancellor erred in dismissing the bill and that he should have entered a decree in accordance with the view herein expressed. The defendant did not offer to pay sixty per cent of the assessment, but litigated the city's right thereto; consequently, both parties should pay part of the costs, so the costs of this appeal, and in the court below, will be taxed equally between the appellants and the appellees, and judgment will be here rendered in favor of the city for sixty per cent of the amount of the original assessment, without interest.
Reversed, and judgment here.
Addendum
Because, however, the points were in a manner, even though not in a sufficient manner, raised in the last four lines of appellant's original brief, and because of the nature of the said points, we waive the rule, and respond that, in accordance with the first above-cited case, the suggestion will be sustained as to the interest, and the decree will be amended so as to carry interest from October 1, 1922.
Touching the second point, a question is there presented which is not free from difficulty, as has often been the case in respect to statutes providing attorney's fees. No decision in exact point has been brought to our attention by appellant, nor have we on our part been able to find any. We must therefore rest our conclusion on a general course of reasoning.
While the weight of authority is that statutory provisions for the imposition of attorney's fees in proceedings to collect special improvement assessments are valid, there is no great number of cases on the direct point, and of these several have arrived at the conclusion with evident reluctance and misgivings. And upon the general proposition of allowing statutory attorney's fees as a part of the recovery in a special class of cases, there is the utmost confusion and contrariety of judicial opinion. For instance, in many states the statutes have attempted to allow attorney's fees to successful plaintiffs in suits to foreclose mechanic's liens. In several of those states, their supreme courts have held the provision invalid, *764 while apparently about an equal number have sustained it.
It is broadly declared in a few of the cases that statutes which allow attorney's fees to a successful plaintiff and not to a successful defendant are void as denying the equal protection of the laws, and the quotation in Sorenson v. Webb, 111 Miss. at page 90, 71 So. 273" court="Miss." date_filed="1916-03-15" href="https://app.midpage.ai/document/sorenson-v-webb-7992327?utm_source=webapp" opinion_id="7992327">71 So. 273, would indicate that our own court gave some favorable consideration to this view. See, also, Chicago,etc., R.R. Co. v. Moss,
Rather than that, we think the proper course to take is by the analogies of other instances in which attorney's fees are allowed. For instance, in partition attorney's fees are allowed only when there is no contest upon the merits of the case; and in dissolutions of injunctions where there are essential questions in the case which are litigated other than the sole question of the injunction, no fees are allowed. So here, it was not a case of an uncontested proceeding to enforce the cost of the local improvement, but was a meritorious litigation contested with energy and ability on both sides, and in which both sides were partly successful and party unsuccessful. In such a case, we must hold that no attorney's fees are allowable under the statute in question.
Sustained in part, and in part overruled.