Lum v. City of Vicksburg

72 Miss. 950 | Miss. | 1895

Woods, J.,

delivered the opinion of the court.

Sections 80 and 88 of the present constitution are so clearly prospective in their operation as to make unnecessary any discussion touching the supposed unconstitutionality of § 3035, code 1892. The sections of the constitution named, by their terms plainly show that no repeal of existing municipal charters was intended. Section 80 contains a direction to the legislature to provide, by general laws, for the prevention of abuses by municipal corporations of their powers of assessment, taxation, borrowing money and contracting debts; and § 88 is merely a direction to the legislature to pass general laws, under which local and private interests shall be provided for and protected, and,under which cities and towns may be chartered and their charters may be amended, and under which corporations may be created, organized and their acts of incorporation altered. Ew vi termini, the language of both sections excludes all idea of any constitutional or compulsory legislative repeal of their existing municipal charters. By the first section named (80), future legislatures are directed to prevent abuses of charter rights by municipal corporations, and by the second section named (88), legislatures, for the future, are directed to provide general laws under which cities and towns may be chartered and their charters may be amended.

As to the other contention touching the supposed unconstitutionality of § 3035, code 1892 — viz., that the power to legislate was conferred on the municipal authorities of Vicksburg by that portion of § 3035, code 1892, which left any existing municipality, in the mode and within the time prescribed by the section, to elect to continue its existence under its then charter, or, more exactly, not to come under the provisions of the general law of which said § 3035 was a part — we have to say that a law may become operative upon the happening of a future event, although that contingency may be the result of an election by the people, and that this is too well settled, generally, and in this state particularly, to be now again considered by us.

It is, furthermore, contended with great earnestness by counsel for appellant that, in several particulars pointed out in their brief, there was a failure of the municipal authorities, in its action in dealing with the assessment of appellant’s property, to observe the terms of its charter rights as defined in § 30 of the act of incorporation of the city of Vicksburg. It is asserted by counsel that the record shows on its face that, though § 30 of the charter requires the report of the assessor of under-valuations of property, by owners thereof, to be made at a time to be prescribed by the municipal authorities, no particular time for the reception of such report had been prescribed-It might be sufficient to say, in answer, that the pleadings and proofs make no reference to such issue. But, that there was a particular time prescribed by the municipality for the reception of the report of undervaluations made by the assessor, is plainly inferable from the averment of the original bill of appellant that, ‘' for the purpose of receiving said report ’ ’ the board of mayor and aldermen met on June 4, 1894.

The absence of the seal of the municipality from the notice given appellant of the time of the contemplated consideration of the report of the assessor as to the undervaluation of his property by appellant, was immaterial. The purposed action of the municipal authorities was not to be had in a suit to which appellant was a party; and, if it had been, the failure of the clerk to affix his seal or to sign his name, would have been an irregularity amendable on motion. But it was not a suit in which the appellant was required to be summoned. The board of mayor and aldermen were to sit to revise and adopt the assessment roll, and the charter only required that such notice as the board might fix should be given. Of course, ample notice, and fair as to time, is necessarily implied, and such notice appellant had, as abundantly appears from the order of the board to its clerk, directing him to notify persons whose property had been reported as undervalued, of the meeting to be held on July 5, to consider the assessor’s report and to hear objections thereto, and from the full and explicit notice actually given the appellant on June 9.

It is urged, further, along this line of exception to the legality of the board’s action, that there-was not strict compliance by the board with one of the property owners’ safeguards against municipal misrule, in that § 30 of the charter provides, amongst many other things, that “the reports of the assessor and collector shall be received and considered by the board at such time and upon such notice to the owners of the property as the board may fix, ’ ’ etc., and that the board proceeded in disregard of this requirement of their charter. As to failure to fix a time for receiving the assessor’s report of undervaluations, we recur to what has been already said by us on this point. The bill does not aver that the board had not fixed the day for receiving the report, and the bill, in its averment that the board met June 4 for the purpose of receiving the report, suggests that the day had been fixed. But, on the other and remaining branch of this contention, we say the report of the assessor as to appellant’s undervaluation of his property as given by him to the assessor, was considered at such time and upon such notice to appellant as the board did actually fix. The notice given appellant was full and precise, and the time was placed one month distant — namely, July 5 — and the notice given appellant in person on June 9.

It is insisted, however,'that the time fixed was July 5, and that the board finally considered and acted upon the assessor’s report on July 12, seven clays after the time fixed by the resolution of the board and its notice tp appellant. A brief reference to the record in the case and to § 23 of the charter will disclose the unsoundness of appellant’s position. On July 5 the board met pursuant to its resolution and the notice given appellant. Many property owners appeared and filed their objections to the assessor’s recommendations to raise their assessments, but appellant was not of the number, and it is proper here to say that he did not appear before the board at all, or pay any attention whatever to the notice given him. At the meeting July 5 the board read the petitions of property owners who protested against raising their assessments, and heard the objections of the several parties, and, in certain named cases, sustained the objections of protesting taxpayers and reduced the assessments as raised by the assessor. As to the other petitions against adopting the assessor’s recommendations, the record shows that the board, not being fully advised, referred these petitions to the finance committee of the board, with instructions to examine into the justice of the claims of the petitioning taxpayers, and report to the board at an adjourned meeting to be held on July 12. It further appears from the record that the board met July 12, heard and considered and acted upon the report of its finance committee, making reductions in some cases and refusing to make reductions in others, and, by resolution, approved the assessment roll as presented by the assessor and collector, altered, of course, in the cases hereinbefore indicated, and the assessor and collector was ordered to make up the assessment roll from the lists so revised and passed, upon by the board. When we look to § 23 of the charter, we find that the action just narrated was in pursuance of the powers conferred thereby. This section, beginning in its sixth line, declares, ‘ ‘ the mayor or any five aldermen may call a special meeting of the board at 'any time, and any regular or special meeting may be adjourned from time to time by the board. The mayor shall appoint all regular or special committees of the board, but no committee shall be vested with plenary power over any subject that may be submitted to it, but all matters so referred shall be reported back to the board for confirmation or final action. ’ ’ The action was not irregular, then, in adjourning from July 5 to July 12, and in then finally adopting the assessment roll as revised. The appellant was in .court by regular and valid notice, and he was, in legal contemplation, aware of the adjournment from the fifth to the twelfth, and, as he filed no objection to the raising of his assessment, he is in no attitude to be heard to complain.

Under § 481, code 1892, upon dissolution of an injunction restraining the collection of taxes, the state, county or municipality, as the case may be, shall have a decree for the amount of taxes enjoined, and ten per centum thereon, with all costs. The learned chancellor reached the proper conclusion, but, inadvertently, no doubt, referred, as his authority for allowing the ten per cent, damages to the municipality, to § 37 of the city charter, instead of the section of the code just named.

Affirmed.