51 So. 802 | Miss. | 1910
delivered the opinion of the court.
This suit is begun by the city of Jackson, and its object is to' compel the street railroad company to pave between and two feet on each side of the rails. The street railroad company resists this effort on the part of the city on the contention that the city has no.authority to compel it to pave as above, because it has exempted the street railroad company from this requirement for ten years, beginning from 1906, and because the city has no power to compel the railroad company to make this street improvement. A bill filed by the city, praying for a decree requiring the company to make the improvement, and also praying for a mandatory injunction requiring the company to obey the decree, was demurred to by the railroad company, and the demurrer overruled, and an appeal allowed from this decree for the purpose of settling the principles of the case. We shall not undertake to.fully state all the allegations contained in the bill of complaint, but will simply refer to those matters of fact which are necessary to explain the decision. There are a few controlling facts which we deem necessary to emphasize. The city abandoned its special charter during 1892, and that -year came under the provisions of chapter 93, Code 1892, which provides a general charter for all municipalities in the state operating under same, and prescribes the powers, duties, and rights of all cities operating thereunder. Chapter 93, Code of 1892, by almost a literal rescript, is now chapter 99 of the Code of 1906. When we refer to the Code, we shall cite the Code of 1892, since the questions originated while that Code was in effect.
In 1902, acting under sections 3011, 3012, Code 1892 (sections 3411, 3412, Code 1906), tbe mayor and board of aldermen declared tbat tbe paving of tbe streets was necessary and proceeded to enact ordinances requiring tbe street to be paved, assessing tbe abutting property owners for part of tbe costs of same. Tbe street to be paved was a street on wbicb tbe street railroad company was at tbat time and is now operating. After these ordinances were adopted, tbe city proceeded to pave tbe street and to assess tbe abutting property owners. Tbe validity of these ordinances, wbicb are tbe same as involved in tbe present case, was drawn into- question in the case of Edwards House Company v. City of Jackson, 91 Miss. 429, 45 South. 14, and tbe ordinances sustained. Tbe paving now sought to be required is the paving of different portions of tbe same street and involves tbe same ordinances. There is no complaint on the-
But this case .must be reversed and the bill dismissed, for the reason that at present the city has no right to institute this suit,, since there is now no debt owing the city, because no paving has been done by it. We do not think there can be any good reason for drawing any distinction between the rights of a street-railroad company and those of any other property owner in the street, when it comes to the enforcement of this local assessment. The street railroad company is entitled to its right to lay the pavement for itself, and does not become liable for the cost of pavement until after the city has notified it to lay it and it has failed and the city lays the pavement. • In short, the city has not done what is required of it before it brings this-suit to recover the amount which will be owing it for paving this street; and until it has done this, and paves this street, it can have no recourse against the abutting -property owner. The city only has the power to require the property owner to do the paving in the first instance, so as to enable the property owner to do it himself if he so desires. If. he fail on notification, then the city may do the work itself and assess the cost against him; but, until it has done so, it has no standing in court. Reversed and hill dismissed.