104 So. 465 | Miss. | 1925
Lead Opinion
Prior to the adoption of these ordinances the city had paid the entire cost of repaving and resurfacing its streets, and had assessed only two-thirds of the cost of paving its streets against the lots abutting thereon, the remaining one-third, together with the entire cost of paving the street intersections, being borne by the city. The city obtained the money with which to pay its portion of the cost of paving, repaving, and resurfacing its streets, either by general taxation or by the sale of bonds to be paid when due by money derived from general taxation.
The objections raised to these ordinances are that they violate section 4, chapter 260, Laws of 1912, sections 61 and 112 of our state Constitution, and the Fourteenth Amendment to the Federal Constitution. Under section 4, chapter 260, Laws of 1912, the city was without power to change from its former method of paying for paving its streets to that here adopted. City of Jackson v.Doxey,
At the session in 1924, the legislature enacted chapter 194 of the Laws of that session, which seems to provide a complete scheme for the paving, maintenance, and repair of streets, and while section 12 thereof provides: "This act shall not repeal any other statute relating to the subject-matter hereof, but shall be deemed to provide a supplemental, additional or alternative method of procedure for the benefit of all municipal corporations in the state of Mississippi," — the section further provides: "Said municipalities operating under the said provisions of this act shall have authority to make special improvements and assess the cost thereof, either in whole or in part against the property abutting on the streets to be improved, said method of assessment to be determined upon as hereinabove provided, regardless of whether or not said municipalities may have been making said improvements under former laws and assessing the cost thereof in a manner different from that determined upon under this act, or paying for same out of the general improvement fund of said municipalities."
This last provision of the statute is unambiguous, clearly grants to municipalities the right which the appellee here seeks to exercise, and must be enforced although it may be in conflict with prior laws which the legislature did not intend to thereby repeal. Where statutes conflict the one last enacted controls. Conceding that this provision of chapter 194, Laws of 1924, repeals, as it seems to do, that portion of section 4, chapter 260, Laws of 1912, with which it conflicts, section 61 of our state Constitution which provides, "No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length," is not violated thereby. The latter statute is complete on its face, can be understood and applied without reference to the former, and repeals or modifies the former only by implication; and such repeals are not within the purview of section 61 of the Constitution. *44
The ground of the objection that these ordinances violate section 112 of our Constitution, and the Fourteenth Amendment to the Federal Constitution, is that they impose a greater burden on property abutting on the street here to be paved than was imposed on property abutting on the streets that have been heretofore paved.
The appellants admit that section 112 applies only to taxation for general purposes, and not to assessments for local improvements, but their contention is that the uniformity and equality clause of the section will be violated if the city, after having paid or obligated itself to pay a portion of the cost of paving other streets out of money raised or to be raised by general taxation, should assess the entire cost of paving and repaving the streets here in question against the property abutting thereon.
The inequality in taxation complained of is brought about, according to the appellants' contention, by the fact that the property abutting on the streets here in question has been or will be taxed for the payment of a portion of the cost of paving and repaving the streets that have been heretofore paved and repaved, while the property abutting on such other streets will not be taxed to pay any part of the expense of paving and repaving of the streets here to be paved and repaved.
There is no merit in this contention, or, to express it differently, we are unable to perceive any merit therein. There is no complaint that either the rate of taxation is not uniform throughout the city, or that all property is not assessed under uniform rules according to value. The inequality that here results, if such there be, does not result from the method by which taxes have or will be levied and collected, but from the disposition made or to be made of money that has been or will be raised by taxation, a matter not within the purview of section 112 of the Constitution.
The equal protection of the law clause of the Fourteenth Amendment to the Federal Constitution does not prevent a state from changing from one system of taxation or of assessment for local improvements to another *45
(Bell's Gap R.R. Co. v. Pennsylvania,
"The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laying out, grading or repairing of a street, to be assessed upon the owners of lands benefited thereby; and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion." Spencer v. Merchant, 125 U.S. at page 355, 8 S. Ct. 926, 31 L.Ed. at page 767.
Local assessment districts may be created directly by the legislature, or the power so to do may be delegated to a subordinate agency (Spencer v. Merchant, supra), such as a municipality, and the determination of this subordinate agency, within the limits of the power delegated to it, of the territorial district which should be taxed for local improvement, is conclusive in the absence of fraud, oppression, or some wrong constituting a plain abuse of discretion (Nugent v. City ofJackson,
It has been suggested that the assessment here is against each lot of the cost of the paving immediately in front of it, and that such an assessment is of such an arbitrary nature as to constitute the taking of property without due process of law (Macon v. Patty,
The provision of section 6 of the statute, that "all engineering and inspection costs, including a proper proportion of the compensation, salaries and expenses of the engineering staff of the municipality, properly chargeable to any improvement, shall be deemed a part of the cost of the improvement," is objected to by the appellants, but the record presents no question relative thereto, for the reason that it does not appear from the record that the appellee intends to charge the appellants with any engineering and inspection costs, and until it attempts to charge such cost against the abutting property, no question of its power so to do arises.
No complaint is here made that the paving and repair of the streets is not of benefit to the property of the appellants abutting thereon, consequently, no question that could arise from such a complaint is here presented.
Affirmed. *47
Dissenting Opinion
I am unable to agree with the majority opinion in this case. There was no finding in the ordinance that the property adjoining the street would be specially benefited to the extent of the cost of the improvement, nor to any extent whatever. Section 5 of the ordinance provides that the entire cost of the improvement be assessed to the abutting property-owners, said section reading as follows: "That the property-owners whose property abuts on Roseneath street from the north property line of Central street to the south end of the existing pavement at the south side of Robinson street shall pay the entire cost of paving and storm sewer on said street, also pay for all the other special improvements enumerated in section 2 of this resolution on said street in front or abutting along their property or be subject to assessment for the cost of the special improvement of the same."
By section 6 of the ordinance it is provided: "That the material with which said street is to be specially improved shall be any of that which is set forth in the plans and specifications prepared by the city engineer which have been adopted, are now on file with the city engineer."
The bill alleged that complainant is the owner, in possession of, and residing on a certain lot fronting sixty feet on Roseneath street in the city of Jackson; that his property had been assessed, taxes levied, and collected under ad valorem taxation for the payment of the entire cost by the city of paving the street intersections upon many miles of streets of the city of Jackson, it having been for many years the settled policy of the city to assess against the property abutting upon streets so paved only one-third of the cost of such paving, the property on the opposite sides of such improved streets paying one-third each of the cost of paving, and the city paying the other one-third, and that it will be necessary for the city for many years to collect ad valorem taxes from all the property *48 of the city to pay for the cost of the paving so assumed by the city.
The bill further alleged that the city on or about the 6th day of January, 1925, adopted the resolution above referred to.
The bill then avers that chapter 194, Laws of 1924, to the extent that it attempts to permit such change in the method of making assessments for paving, and to the extent that it permits or attempts to permit all the cost of the paving of the street intersections to be assessed against the property-owners on the street to be paved, and to the extent that it attempts to permit indefinite portions of the salaries of municipal employees to be included in the cost of such improvements, and to the extent that it attempts to permit the adoption of a penalty on the entire balance of the special assessment upon default in the payment of one of the installments thereof, is unconstitutional and void, and charges that if the defendants are permitted to construct said improvements and make assessment against the said property in the manner in which they are asserting the right to do, that complainant will suffer irreparable damages.
It is further argued that under the act here under consideration, chapter 194, Laws of 1924, the city will be permitted to discriminate between the property-owners in different parts of the city, living on different streets thereof, in that the cost of paving on one street, under said law, may be assessed wholly to the abutting property-owners, and on another street the entire cost of such paving may be paid out of the public funds of the city without special assessment; and in still other parts of the city, or in other streets, the cost of paving may be apportioned between the abutting property-owners and the city; that the result will be an unequal and unfair burden of taxation imposed against some property-owners, and in favor of other property-owners.
This brings into consideration a comparison of chapter 194, Laws of 1924, with chapter 260, Laws of 1912. By express provision of section 4, chapter 260, Laws of *49 1912, the city must use the same plan of paving and taxing the cost thereof throughout the city. Section 12, chapter 194, Laws of 1924, provides:
"This act shall not repeal any other statute relating to the subject-matter hereof, but shall be deemed to provide a supplemental, additional or alternative method of procedure for the benefit of all municipal corporations in the state of Mississippi, whether operating under chapter 99 of the Code of 1906 and amendments, special charter, or commission form of government and regardless of whether or not they have previously operated under chapter 260 Laws of 1912 or its amendments and shall be liberally construed to effectuate its purposes. Said municipalities operating under the said provisions of this act shall have authority to make special improvements and assess the cost thereof, either in whole or in part against the property abutting on the streets to be improved, said method of assessment to be determined upon as hereinabove provided, regardless of whether or not said municipalities may have been making said improvements under former laws and assessing the cost thereof in a manner different from that determined upon under this act, or paying for same out of the general improvement fund of said municipalities."
By a careful comparison of this section above set out with section 4, chapter 260, Laws of 1912, it will be seen that the provision of section 4, chapter 260, Laws of 1912, is not repealed, and by section 12, chapter 194, Laws of 1924, that act is not repealed except where it is in necessary conflict with the former act. The rule that where the legislature enacts a complete scheme covering a subject it repeals former laws on the same subject, though mentioned in the act, is not applicable here, because the present act is only supplemental and additional and alternative, except as it specifically covers the same subject.
I think the act, chapter 194, Laws of 1924, would be construed, without reference to section 4, chapter 260, Laws of 1912, to mean that the city would have to operate *50 under this act throughout the city if it is to act under it at all.
Under the provision of section 12, chapter 194, Laws of 1924, above quoted, in the latter part of the said section the city is authorized to change its plan of improving streets whenever one plan is found to be impracticable. The city, being a single municipality, cannot make one law applicable to one portion of the city, and another law applicable to another portion thereof at the same time. So long as it is operating under one law it must operate throughout the city in the same manner. The citizens of the municipality are entitled to the equal protection of the law, which means the protection of equal laws operating throughout the municipality.
I think it is essential for the city, when it undertakes a special improvement under the law, to find as a fact whether the benefits to abutting property will equal the cost of the improvement, and the city cannot impose on abutting property a substantially greater burden than the benefit that will result to the property from the construction of the proposed improvement, and this must be a condition precedent to imposing on the owner the cost or a part of the cost of the improvement of the public street. The streets belong to the city. They are public property, and, while the city may tax the abutting owners to the extent of the benefits conferred on their property, it cannot, under the pretense of conferring benefits, take the property of the citizen for street improvement without benefits equivalent to such taking. For this reason the law has vested the discretion of the power of decision in the municipal authorities of determining the extent to which such cost will be taxed to the abutting property. To go further than this would violate sections 14, 17, and 24 of the state Constitution.
Section 14 of the Constitution provides: "No person shall be deprived of life, liberty, or property except by due process of law."
Section 17 of the Constitution provides: "Private property shall not be taken or damaged for public use, *51 except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public."
Section 24 of the Constitution provides: "All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due process of law, and right and justice shall be administered without sale, denial, or delay."
See 10 Cent. Dig. Constitutional Law, sections 950-963; First Decennial Digest and Second Decennial Digest, Constitutional Law, 321 et seq.
These provisions of the Constitution are designed to protect the private citizen from the wrongs of the government or any of its officers as well as for other purposes. They are restraints upon the governing authorities, including the legislature, and the legislature cannot itself arbitrarily deprive the citizen of life, liberty, or property, or deny the citizen the right to compensation for property taken for a public use, or deny him a resort to a court of justice, no matter what scheme or name it may adopt for that purpose.
The statutory scheme here involved, and all similar schemes authorizing the special assessments of specific property for public improvements, is founded on the theory that the improvement confers a benefit which is the equivalent of the burden exacted by the public. The matter is learnedly and elaborately discussed in Town of Macon v. Patty,
In a case note to Re Bonds of the Madera Irrigation District, 14 L.R.A. 755, the editor of that series, in commenting on a California case holding that neither the fact that some property within the district formed for irrigation of arid lands within its borders by means of taxation will receive no benefit therefrom, nor that all the property that will be benefited is not included within the taxing district, will render the proceeding for the formation of the district unlawful, said:
"The doctrine declared in the main case, following Lent v.Tillson,
"Most cases on the subject declare that local assessments for public improvements can be constitutional only when the improvements clearly confer special benefits on the properties assessed, and only to the extent of those benefits" — citingHammett v. Philadelphia,
That case note discusses the question and the application of the authorities.
In City of Owensboro v. Sweeney,
"The question of municipal taxation is one of the most important and intricate public questions of the day. Municipal authorities as a rule are disposed to be liberal in the imposition of taxes, and do not seem disturbed by the ever-increasing burden of indebtedness that is accumulating upon the cities of the country. Fortunately, the Constitution of this state has placed a check upon the extravagant expenditure of public moneys, and has fixed a limit beyond which a general property tax for public purposes cannot go unless assented to by the voters at an election held for that purpose. But this valuable and salutary limitation would afford little protection if, under the guise of improving property, special taxes might be levied without let or hindrance, and without regard to the constitutional limitations which do not apply to this method of taxation. If the right to lay these special assessments can be extended to embrace any subject which the municipal authorities, with the aid of the legislature, deem it expedient to reach, it will soon come to pass that the wise safeguards of the Constitution will afford slight security to the taxpayer. To evade them, it will only be necessary for the municipal authorities to place the burden upon abutting owners under the pretense that it is an improvement tax, and hence may be charged in addition to the property tax imposed. Under this plan or scheme, should it be held allowable, if the general property tax in a city has reached the limit, and no larger sum can be gathered from this source, the city counsel may, by charging some of the current expenses of the city to abutting owners, divert to other uses the amount theretofore expended for this purpose out of the property tax collected. . . .
"Arbitrary power exists nowhere in this Republic. There is a line at which the power to tax and take for special assessments must stop. The only question is *54
where to draw it, and, in the character of tax under consideration, we may safely say that it must stop when it goes beyond real and substantial benefits to the abutting property, distinct from those enjoyed by the public. The theory upon which special taxes are sustained is that the property assessed receives special benefits in addition to those received by the community at large. `This,' says Dillon in his work on Municipal Corporations, in section 761, `is the true and only just foundation upon which local assessments can rest; and, to the extent of special benefits, it is everywhere admitted that the legislature may authorize local taxes or assessments to be made.' Cooley on Taxation, section 1153, lays it down that `there can be no justification for any proceeding which charges the land with an assessment greater than the benefits. It is a plain case of appropriating private property to public use without just compensation, and a clear case of abuse of legislative authority in imposing the burdens of a public improvement on persons or property not specially benefited would undoubtedly be treated as an excess of power, and void.' The supreme court of the United States, in Illinois Central R. Co. v. Decatur,
In Taxation by Assessment, by Page Jones, vol. 2, section 651, under the heading of "Theory of Apportionment," it is said: "Accordingly, since assessments are based upon the theory of benefits, they must in theory, at least be apportioned according to the amount of the special benefits conferred upon each separate tract of property assessed by the improvement for which the assessment is levied, and in theory, at least, the amount of *56 the assessment cannot exceed the amount of such special benefit."
At page 1114 of the same volume it is said: "Undoubtedly, the simplest, fairest, and most just rule, and, one that best conforms to the underlying theory of the local assessment, is that the existence and amount of special benefits is to be determined by the effect of the improvement upon the market value of the property which it is claimed is benefited by such improvement. If the construction of such improvement increases the market value of such property, such property receives a benefit, and the amount of such benefit is measured by the amount of such increase. In such cases the effect of the public improvement upon both the land and the improvements thereon, considered as an entirety, must be considered. If this theory is applied, perfect justice is secured. The property-owner pays as his assessment the exact amount which he could obtain for his property in excess of the amount he could have obtained for it had the improvement not been constructed. . . . Conversely, under this theory, if there is no increase in the market value of the property which it is sought to assess, no special benefit exists and no assessment therefor can be levied. An assessment in excess of the increase in value of the property assessed cannot be upheld under this theory. In applying this theory, the increase in value which is regarded as the test of special benefit, must be the increase which is due solely to the improvement for which it is sought to levy the assessment. An increase in value which is due to other causes, such as to the general advance in the price of land, as that which is occasioned by the general development of the neighborhood, cannot be regarded as the test of the amount of special benefit conferred by such improvement."
In Hutcheson v. Storrie,
In the Myles Salt Co. Case, supra, L.R.A. 1918E, 190, the supreme court of the United States held that an island, which, being high land, is not and cannot be benefited directly or indirectly by a drainage improvement, may not, consistently with the due process of law clause of the United States Constitution, the Fourteenth Amendment, be included within the drainage district solely for the purpose of deriving a revenue from the levy and collection of drainage taxes thereon for the benefit of other lands subject to be improved by drainage. In the case note to this case, the editor of the L.R.A. series, L.R.A. 1918E, page 190, says:
"The theory which underlies all assessments of property for a public improvement is that the property is benefited by the improvement and should bear a proportion of the cost thereof corresponding to this benefit. There can be little doubt that an assessment upon property which is not benefited is void, or that an exaction in the way of a special assessment in excess of benefits is, to the extent of such excess, void, and without due process of law. This underlying principle furnishes the basis for the decision in Myles Salt Co. v. Iberia St. M. DrainageDist., ante, and Horton Investment Co. v. Seattle, L.R.A. 1918E, p. 194."
In Adams v. Shelbyville,
In Sick v. Bay St. Louis,
In the ninth syllabus in the Sick case, it is said: "Where a municipality constructs a sea wall it cannot arbitrarily impose one-half of the expense on property-owners abutting such improvements, regardless of the cost of construction and the actual benefit conferred, since such assessment might be confiscatory."
In Bouslog v. City of Gulfport,
In the case of City of Jackson v. Williams,
I think from these authorities and numerous others from other states that could be cited, and may be found in cases and case notes already referred to, it is clear that the legislature cannot confer the right to compel a property-owner to improve a public street beyond the material benefits that will come to his property, and that to do so is the plain taking of private property for the public use in violation of section 17 of the Constitution. Section 17 of the Constitution is designed to secure the owners of property against its appropriation for the use of the public regardless of the name that may be given the proceeding. It would be a vain and useless thing for the constitutional convention to ordain section 17, if the legislature, under the fiction of conferring a benefit, can take from a property-owner his property where no benefit is actually conferred. The question in such case is one for a judicial hearing — one where the property-owner may produce evidence to show that he is not benefited, and appeal to the courts to protect him from spoliation.
There is some confusion apparently due to the fact that the United States supreme court has held that the Federal Constitution does not protect a citizen of a state legislature on this question. There are decisions in jurisdictions where the question is considered a legislative question as to benefits binding on the courts which hold that no benefit need actually be conferred to justify the *60 cost of the improvement, but these cases are relatively few, and in all states where a constitutional provision similar to section 17 of our Constitution exists, and the question is considered a judicial question, the courts uniformly hold, I think, that there must be an actual, as against an imaginary, benefit. The delicacy of the question of the United States supreme court in dealing with the state laws is manifest, because the states have different systems and different theories. The prohibition of the Federal Constitution against the taking of private properties for public uses is not applicable to the states, and to prevent the state government from taking private property for public use there must be some provision in the state Constitution. It seems from a reading of the numerous acts of legislature that members of the legislature think they can go to the extent permitted by the Federal Constitution, but such is not the case. The Bill of Rights in the state Constitution guarantees that the citizen's property shall not be taken for public use without an equivalent benefit. Of course this does not apply to ordinary taxation, because the needs of the government are the only limits against the ordinary taxing power, but where the limitation on the taxing power is taken away because of the theory of the benefit being equivalent to the tax, it does not follow that the municipality or state can select private property for appropriaion under the guise of public improvement. In such case section 17 of the Constitution becomes available. While our court has said in some of the cases that the citizen's property was not taken in violation of section 17 under the particular case, and the rule appears to be general in its statement, yet it must be applied to the case before the court; and where the benefit exceeds the burden, certainly there is no taking. But if the benefit is not equivalent to the burden, there is, manifestly, a taking.
In Macon v. Patty,
"It is now well settled with no dissenting voice, except in Iowa, that a local assessment requiring each lot owner on a single street or part of a street to improve the street in front of his property at his own expense would be unconstitutional, because there would be no apportionment of the tax; and Judge COOLEY says that such a law `would be nakedly an arbitrary command to each owner to construct the street in front of his lot at his own expense, according to a prescribed standard; and a power to issue such command could never be exercised by a constitutional government, unless we are at liberty to treat it as a police regulation, and place the duty to make the streets upon the same footing as that to keep the side-walks free from obstruction and fit for passage. But any such idea is clearly inadmissible.' Cooley Const. Lim. 508."
At page 386, Judge GEORGE says: "A local assessment can only be levied on land; it cannot, as a tax can, be made a personal liability of the taxpayer; it is an assessment on the thing supposed to be benefited. A tax is levied on the whole state, or a known political subdivision, as a county or town. A local assessment is levied on property situated in a district created for the express purpose of the levy, and possessing no other function, or even existence, than to be the thing on which the levy is made. A tax is a continuing burden, and must be collected at stated short intervals for all time, and without it government cannot exist; a local assessment is exceptional both as to time and locality — it is brought into being for a particular occasion, and to accomplish a particular purpose, and dies with the passing of the occasion and the accomplishment of the purpose. A tax is levied, collected, and administered by a public agency, elected by and responsible to the community upon which it is imposed; a local assessment is made by an authority abextra. Yet it is like a tax, in that it is imposed under an authority derived from the legislature, and is an enforced contribution to the public welfare, and its payment may be enforced by the summary method allowed *62 for the collection of taxes. It is like a tax, in that it must be levied for a public purpose, and must be apportioned by some reasonable rule among those upon whose property it is levied. It is unlike a tax, in that the proceeds of the assessment must be expended, in an improvement from which a benefit clearly exceptive and plainly perceived must enure to the property upon which it is imposed, or else the courts will interfere to prevent its enforcement."
At page 399, after reviewing a number of authorities from other states, the court, through Judge GEORGE, said:
"Since then it appears, that under the Constitution of this state, private property cannot be taken for the public use, under the plea that due compensation is made by benefits arising from the appropriation; and since it has also been shown that the taxing power may be limited and controlled by what Judge MARSHALL, in the passage heretofore quoted, called the great conservative principle of the Constitution — the provision prohibiting the taking of private property for public use without due compensation — it follows that the power to make local assessments in this state does not exist, if there be no other foundation for it than the equalization of the burdens with the benefits to arise from the local improvement."
If the property-owner is to be subjected to the unrestrained will of municipal authorities for all of the improvements named in section 2, chapter 194, Laws of 1924, which the municipality may desire to make at the property-owner's expense, it would certainly be an evil day for property-owners. If they can go further and select particular localities and communities for discrimination or favoritism it will be worse. If they can impose upon the property-owners a part of the salaries of the city officers, and charge that against specific property, I can see no reason why the entire burden of city government could not be imposed upon the political opponents of the city administration. Doubtless this would be pleasing to the large number who would be the recipients of municipal favors, and who escaped the burden of making *63 the city correspond to the high ideas and aesthetic taste of the municipal authorities.
The act, chapter 194, Laws of 1924, is extremely arbitrary and intolerably unjust. Just why a legislature would confer such sweeping powers is not apparent.
McGOWEN, J., concurs in this dissent. *64
