45 So. 14 | Miss. | 1907
delivered the opinion of the court.
This is a proceeding begun by the city of Jackson against the defendant company, under § 3012 of the Code of 1892, by petition in the chancery court; the object being to establish a lien on the property of defendants fronting on Capitol street in the said city, for the sum of $708.43, claimed to be due the city of Jackson for special improvements made by the city on the street whereon this property fronts, and the city having proceeded under § 3011 of the Code of 1892.
The facts are substantially as follows: viz.: On January 7, 1902, the city of Jackson, acting through its mayor and board of aldermen, proceeding under § 3011, passed a resolution wherein, among other streets named, they declared that the paving of Capitol street was necessary, particularly describing the portions of the street necessary, in their judgment, to be paved, and the property of defendant company fronted on the street designated. The resolution specifically stated that the mayor and board of aldermen were proceeding under § 3011 of the code, providing for special improvements, and gave notice to the owners of property fronting the street to be improved that they
After the ordinance of the 4th of February, 1902, and before April 19, 1902, the city engineer, in compliance with the direction of the mayor and board of aldermen, prepared the plans and specifications by which and in accordance with which the street should be paved. On April 19, 1902, the plans and specifications having been presented to the mayor and board of aldermen, a special meeting was called, whereupon the plans and specifications which were then on file in the office of the city engineer, and with the clerk of the mayor and board of aider-men, were approved. At this special meeting, the board directed the street commissioner to give notice to the owners or occupants of. land abutting on the street whereon was situated the defendant company, as required by § 3012 of the Code of 1892. It will be noted just here that, at the time notice was given to the property owners to construct the pavement in accordance with the plans and specifications of the engineer, these plans and specifications were on file in the city engineer’s office and the clerk’s office, and had been adopted and approved by the mayor and board of aldermen. The mayor and board of aldermen, by resolution, required the street commissioner,' if the property owners failed to construct the pavement as required, to make the improvement himself for the city. The street commissioner was required to make the improvements in case he was compelled to do so on account of the failure of the owners to comply with the order of the board, according to the plans and specifications which they had approved as returned to the city engineer. This resolution, at the special meeting, was made to take effect from and after its passage and was duly published. On the 22d day of April,
The first question, and the only serious question raised by
The section quoted — 'that is to say, § 3011 — is placed in the Code for the very purpose of enabling the mayor and board of aldermen to tax abutting property owners for improvements ordered made under this section, when deemed by them to be necessary.- Therefore we do not understand that the case of Greenville v. Harvie, 79 Miss., 754; 31 South., 425, holds that the specific mention of this section of the Code in the resolution, declaring the work necessary, does not incorporate into the resolution whatever provisions are contained in the section. The resolution passed by the board on January 7, 1902, is radically different from the resolution of the board in the case of Greenville v. Harvie, condemned by the majority opinion in the case supra. In Greenville v. Harvie, the resolution was that “ the hereinafter mentioned and described improvements and repairs of sidewalks in said city are necessary, and to this end notice is hereby given that the city
Again, the argument is made that this ordinance is void because it imposes double taxation, in that at tbe same time tbe mayor and board of aldermen declared this special improvement to be necessary in tbe resolution of January 7, 1902, they also provided for the issuance of bonds for tbe purpose of constructing this work and issued bonds for this purpose, taxing tbe defendant company by general taxation with its pro rata part of tbe taxes necessary to pay the bonds which were raised for tbe purpose of paving this street, and at tbe same time requiring the property owners along this street to do tbe work themselves. Wé do not think that this contention is sound. In tbe first place, tbe raising of money by bonds wherewith to conduct this work was not altogether for the purpose of laying tbe pavement in front of the property of tbe defendant
The only way in which a municipality can make its ordinances requiring special improvements effective is in just the way which the Legislature has provided; that is to say, by giving to the municipality the right to notify the owner to make the improvement, and on his default to do it itself. If the Legislature had empowered the municipality to notify the owner, and, in default of his doing the work, give the city the power only to pass ordinances punishing him with a fine and imprisonment, or a fine or imprisonment, instead of empowering them to proceed with the work, this mode could not
It is argued by counsel for appellant that the rights given under § 3011, and those given under §§ 3014, 3015, and 3016, are exclusive one of the other, and, if the city pursued the remedy under one section to accomplish the end, by so doing it precluded itself from using the other. To the establishment
It would seem from the authorities quoted that all the other constitutional questions raised by counsel for appellant here have been settled against their contention. Sections 3011 and 3012 of the Code of 1892 simply establish the front-foot rule. It may be that through this system some inequalities may be
We deem it unnecessary to discuss the time within which the property owners might have proceeded to make this improvement themselves. The first resolution was passed on January 7, 1902, and by order of the board was made to take effect at once. Publication was made as required by the statute, but no protest was filed. Neither under this nor any subsequent resolution or ordinance was there any effort to comply with the order of the board on the part of the defendant company. The first and all subsequent resolutions appertaining to this improvement were passed and published in 1902, and every notice required by the statute served on defendant, and, though the work was not completed until 1905, there was no effort on the part of defendants to do the work; nor is there
Affirmed.