Langstaff v. Town of Durant, 84 So. 459

84 So. 459 | Miss. | 1920

Lead Opinion

Ethridge, J.,

delivered the opinion of the court.

This is an appeal from an order of the' chancery court of Holmes county overruling a demurrer to a bill tiled by1 the town of Durant to enforce a lien for the laying of a sidewalk under the provisions' of chapter 260, Laws of 1912. This is the second appearance of this case in this court; the first appeal being reported in 111 Miss. 820, 72 So. 236, 681.

When the case was here on the former appeal, it was reversed and remanded for the reason that the proper publication of service of notice/ was not made in conformity to the provisions of the statute, and that the method of assessing the costs for making the said sidewalks provided by the statute was not followed. On the suggestion of error in the first opinion it was insisted that publication was made in conformity to the statute, and also that the bill of complaint showed that the appellant was charged with the correct amount for the improvement in front of his property, and that it made no difference that this amount is ascertained by calculating the average cost' of such improveinent, for it is contended that the bill of complaint showed that the actual cost and the average cost of such special improvements are the same. . The court stated in passing upon this last proposition in the suggestion of error as follows:

“Under this view of the case, the bill probably sufficiently charges that the amount claimed is' the actual cost of the improvement in question” — hut stated that it was not necessary to decide this question to reach the conclusion arrived at in the main opinion, andl overruled the suggestion of error.

"When the case was remanded, a new notice was given to property owners to appear at a mieeting to he held on April 3, 1917, to object to the assessment, and that the board would sit and hear objections from day to day, if necessary, beginning Tuesday, April 3, 1917, at 7 o’clock p. m., at the mayor’s office. The clerk attached to the notice so given the following:

“The above notice was posted in five public places in the towm of Durant on February 7, 1917.”

The report shown in the record, Exhibits E and F, shows that the cost of making the improvement was arrived at in the same way as that in the former record, being obtained by prorating the total cost of sidewalk improvement in proportion to the length of the sidewalk constructed in front of appellant’s property bore to the total property; it being estimated in said report that the sidewalk-proper cost ten cents per square foot, and private crossings fifteen cents per square foot. The report shown in the record, Exhibit F, was made up of various items, among which were the following: X. A. Kramer, engineer’s fees, one thousand three hundred and ninety-seven dollars and forty-eight cents; J. D. Guyton, attorney’s fees, four hundred dollars; interest on money borrowed, five hundred and fifty-five dollars and ninety-eight cents.

The assessment shown in the'record, Exhibit H, is as follows:

“E. L. Langstaff, Dr., to the Town of Durant.

“April 7, 1914.

“Part lot’ 22, to 176 lineal feet 51 ft. walk at 50$, $88.00'.

“Part lot 22, to 151 lineal feet & in. tile, at 35$, $5.25.

“Part lot 22, to 12 lineal feet 6 in. tile at 20$, $2.40'.

“This is to certify that the foregoing account is true and correct to the best of my knowledge and belief. [Signed] T. L. West, Clerk, Town, of Durant, Miss.”

The report shown in the record of Guyton acting for the town in making the costs and keeping an account thereof, does not show the cost of each lot made out to the proper owner, but shows the total number of feet of the sidewalk, crossings, etc., and that this calculated out amounts to ten cents per square foot for sidewalks, and fifteen cents for private crossings.

The bill was demurred to on the ground that the notice was not published in the manner required by law, giving notice to property owners of the making of the assessment, and that the method of fixing the costs was improper and not according1 to statute; that the improvements proceedings, once invalidated because of failure to comply with legislative requirements, cannot be validated by subsequent ordinances; that defects in the proceedings for the assessment of property, being defects relating to the requirements which could not be dispensed with in the first instances, cannot be cured; that the bill shows on its face that the construction of the sidewalks was not done under the supervision of the street commissioner as required 'by tlie ordinance giving notice of such improvement, but was done under the supervision of an engineer; that the assessment attempted to be levied against the defendant is void for patent ambiguity; that the street commissioner did not keep an accurate account as required by law; that the ordinances relied on are void, not having been adopted according to chapter 260, Laws 1912; and that the description of the property on which it is attempted to fix the lien in the bill is void' for uncertainty.

It will be noticed from the above statement that the clerk did not state in his return on the publication of notice to property owners to appear and object to the assessment where the notice had been posted, or that either of them was posted at the mayor’s office; neither did it state that there was no newspaper then being published in the municipality. It appears from the bill, and from the proceedings prior to the former appeal, that the first notice was published in a newspaper not published in the town of Durant, and it is there alleged that at that time there was no newspaper published in Durant. It does not follow as a matter of course that a newspaper had not been established when the second notice was directed to be given, but, treating that as being established from the record as a whole,'the record fails to show the posting of the notice for three full weeks, and that one of which places was at the mayor’s office, while the statute specifically requires one of the places at which such notice is' to be published be at the mayor’s office. Section 7, Chapter 260, Laws 19H2. This notice is in lieu of personal service, and the law is well settled in this! state that statutes providing for notice in lieu of personal summons must be strictly complied with. Ponder v. Martin, 119 Miss. 156, 80 So. 388; Id., 78 So. 929; Moore v. Summerville, 80 Miss. 323, 31 So. 793, 32 So. 294; Diggs v. Ingersoll, 28 So. 825.

Where the statute requires a notice to be posted at-a particular place, the notice must be so posted, and the record should show that it was posted in accordance with the statute. Where a pleading states generally that notice was given? as required by law, and the notice and the officer’s certificate thereto shows specifically by notation thereon how it was done, such notice and notation will control the general averment. The theory upon which such notice is sustained is that, where the law fixes the notice and the method of its being given, the party having- knowledge of the law is charged with such notice as inquiry at the place specified would give him. It follows that the defendant was not legally brought into court before the board making the assessment, and consequently that he is not bound by the order assessing him where he has not actually appeared and made protest or acquiesced therein. In order to establish a lien in proceedings of this kind, the city authorities must conform to the law.

Inasmuch as the case is here to settle the principles of the case, we will express oijr views on some of the other propositions presented.

Section 13 of the act under review provides that .the property owner shall have the right to make the special improvements for himself, but that the work shall be done in accordance with the plans and specifications adopted by the mayor and board of aldermen. It follows from this that, if the property owner does the work, the city cannot assess him for the cost, or any part thereof, of the public improvement. The language of the 'statute is, ‘ ‘ and the cost of the work shall be assessed against the owner, as hereinafter directed,” if he fails to do the work within the thirty days.

Section 14 thereof provides that at the meeting at which they are required to hear objections or protests, if no successful objections be urged, the mayor and board of aldermen] may order the street commissioner to proceed to make, or cause to be made, the improvement or repairs.

Ordinance 98 adopted by the mayor and board of aldermen directed the work to be done under the supervision of the street commissioner in accordance with the statute, but it appears that the work was done under the supervision of a civil engineer who was not the street commissioner, and more than one thousand three hundred dollars was charged against the property owners on account of the services of the civil engineer, and. like wise four hundred dollars attorney’s fees was charged against the property owners for the services of Mr. Guyton as attorney. There is also a charge in the expense account of some five hundred dollars interest on borrowed money. We think these items were improperly charged against the owner. The owner is only to be charged with the actual cost of the work, and of course he may be charged with interest accruing after the time he should pay has passed.

The act contemplates the supervision of the improvement being done by the street commissioner, and does not contemplate that the property owmer shall pay civil engineers and attorneys and others for services which are to be performed by the officers of the city.

. We think the original proceedings up to the time the work was performed were regular, but that the report of the acting street commissioner of 'the costs embraced improper items, and that these items were improperly embraced in the assessment, and, as the assessment must be made in conformity to the act, these items should be omitted.

In the brief for the appellee and attached to the brief appear statements purporting to be contained in ordinances and reports that are not contained in the record, and these reports recite that the walks in Durant cost approximately the same and are level, but the- record does not contain this report, .and we can only decide the case as shown in the record which is certified by the clerk to us. It may be true that the cost is approximately the same, and, if it appeared that it was, it would be immaterial that the right method was not used in reporting the cost. But, whére the statute prescribes a method, such method ought to be followed. The property owner ought to be able to- determine from the report what costs were charged against him, and to have eliminated from the report any assessment of improper charges.

The description of -the property of the appellant contained in the assessment shown in the record is imperfect and doubtful. In order to fix a lien on property, it ought to be described with such certainty as from the description alone contained in the assessment the property could be located with certainty. If the description in the assessment is void for uncertainty, it would not be cured by an allegation in the bill seeking to enforce the assessment which might' better describe the property to be charged with the lien. The description used in both the bill and the assessment is not free from doubt, and, inasmuch as the case must go back for further proceedings and for a new assessment, this property should be better described. See Doe v. Curtis, 3 How. 230; Swayze v. McCrossin, 13 Smedes & M. 317; Lazar v. Caston, 67 Miss. 275, 7 So. 321; Holmes v. Evans and Monohan, 48 Miss. 247, 12 Am. Rep. 3172; Bowers v. Andrews, 52 Miss. 596; Fisher v. Kuhn, 54 Miss. 480; Cogburn v. Hunt, 54 Miss. 675; McGuire v Stevens, 42 Miss. 734, 2 Am. Rep. 649; Tierney v. Brown, 65 Miss. 563, 5 So. 104, 7 Am. St. Rep. 679; Haughton v. Sartor, 71 Miss. 357, 15 So. 71. Wje do not sajy we would reverse for this alone, but leave that an open question, but we do say that certainty of description of property sought to be charged is a requisite of a valid assessment.

The cause will be reversed, the demurrer sustained, and the cause remanded.

Reversed and remanded.

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Concurrence Opinion

Stevens,, J.

(specially concurring). I concur in the foregoing opinion on all points discussed, except that portion holding that an engineer’s fees for supervising the construction of sidewalks or other public improvements cannot be taxed as a part of the cost. The statute says “the cost of the work shall be assessed against the owner.” When any elaborate improvements are made by municipalities, I think in many instances it would not only be appropriate, but necessary, to employ a supervising engineer, and reasonable charges by an expert engineer far supervising the work would be a legitimate charge.