Opinion
No. 33021.
February 21, 1938.
1. MUNICIPAL CORPORATIONS.
A statute, authorizing as many assessments for local improvements as are necessary because of invalidity or irregularity of prior assessments or failure to make prior assessments, authorized mayor and city commissioners, after completion of paving, to institute proceeding for compliance with statute governing manner of assessment for paving, including giving of notice and opportunity for hearing in making of assessments (Code 1930, sections 2560-2565; Laws 1934, chapter 246, section 5).
2. CONSTITUTIONAL LAW. Municipal corporations.
A statute, authorizing as many assessments for local improvements as are necessary because of invalidity or irregularity of prior assessments or failure to make prior assessments, did not deny due process to owners of property abutting paving who did not receive notice and opportunity of hearing in making of assessments, as required by other statutes, until after paving was completed (Laws 1934, chapter 246, section 5; Const. Miss. 1890, section 14; Const. U.S. Amend. 14).
3. MUNICIPAL CORPORATIONS.
The Legislature has full power to validate an unauthorized act of a municipality which it had the power, under the Constitution, to authorize in advance.
APPEAL from circuit court of Coahoma county. HON. WM. A. ALCORN, JR., Judge.
J.M. Talbot, of Clarksdale, for appellant.
We will be frank with the court in stating that if there were no cases of this court except those decided prior to Stingily v. City of Jackson, 140 Miss. 19, 104 So. 465, we would not burden this court with this appeal. We might add further that we firmly plant ourselves on the cases of Barron v. City of McComb, 163 Miss. 337, 141 So. 765; and City of Lexington v. Wilson's Estate, 170 Miss. 282, 151 So. 164, and the cases therein cited.
In the case of Barron v. City of McComb, 163 Miss. 337, 345, this Court speaking through its Chief Justice said: "The Legislature has full power to validate an unauthorized act of a municipality which it had the power, under the Constitution, to authorize in advance. What the appellee here did was to construct the sidewalks, curbs and gutters, the cost of which it now seeks to apportion to the property abutting thereon without giving the owners of the property an opportunity to protest against the constructing of sidewalks, curbs and gutters, or of constructing them themselves. The Constitution nowhere requires property owners to be given either of these rights, so that the Legislature had full power to authorize the construction of the sidewalks, curbs and gutters without reference thereto. Bryan v. City of Greenwood, 112 Miss. 718, 73 So. 728."
It is our contention in the present case that the Board of Mayor and Commissioners of the City of Clarksdale had the same right and authority to do the thing correctly by the resolutions appearing in this record which it might have done before the improvement was actually made.
Wilson v. City of Lexington, 153 Miss. 212, 121 So. 859.
A special assessment may be levied upon an executed consideration, that is to say, for a public work already done.
Seattle v. Kelleher, 195 U.S. 359, 49 L.Ed. 235.
From the foregoing authority we assert that even though the present assessment could be held void, by virtue of Section 2565 of the Code and Chapter 285 of the Laws of Mississippi 1936, the governing authorities of the City of Clarksdale would only have to do the needless and useless thing of adjudicating the fact to be that it had failed in its previous attempt at a legal assessment and proceed by practically the same resolutions as are contained in the present record to make a legal assessment.
We still insist that no injustice has been done to any one or more of the appellees; by their own protest in failing to allege that their several properties were not benefited to the full extent of the assessment or that they were damaged to any extent by the special improvement and the assessment or that they, or either of them, would have protested had they been given an opportunity so to do by a strict compliance with Chapter 194 of the Laws of Mississippi 1924, they thereby admitted the converse of these propositions.
Every constitutional question raised in counsel's brief was raised in the able briefs of counsel in the case of City of Lexington v. Wilson's Estate, 170 Miss. 282, 151 So. 164.
It is a well known statutory rule of construction that statutes operate prospectively and not retroactively.
Franklin v. Neill, 146 Miss. 157, 110 So. 368; Harrington v. Y. M.V.R.R. Co., 145 Miss. 887, 111 So. 444; Faison v. City of Indianola, 156 Miss. 872, 127 So. 558; Section 2565, Code of 1930; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; State v. Miller, 144 Miss. 614, 109 So. 900; Hooker v. Hooker, 10 S. M. 599; Brown v. Wilcox, 14 S. M. 127; Power v. Mortgage Co., 112 Miss. 319, 73 So. 51; Bell v. Bank Trust Co., 158 Miss. 486, 130 So. 486.
It is manifest that the purpose of Chapter 285, Laws of 1936, was to cure and make possible just such a proceeding as before the court in the present case.
Maynard, Fitzgerald Maynard, of Clarksdale, for appellees.
Chapter 285, Acts of 1936, is inapplicable in this situation for the reason that the act was passed as a validating act to validate errors and irregularities in the assessments made prior to the date of the act and to allow correction, and is not prospective.
The Legislature did not mean to say by the said Chapter 285 of the Laws of 1936 that they thereby eliminated from the code and repealed Sections 2258 to 2569, inclusive, which would be the effect of the act if counsel's position is correct.
The court has held for many years that a municipality can only speak through its minutes, and that the person who constructed the street itself could not collect therefor unless the work had been authorized to be done by an order on the minutes.
Lee County v. James, 174 So. 76; Pearl Realty Co. v. State Highway Commission, 170 Miss. 103, 154 So. 292.
The act itself, Chapter 285 of the Laws of 1936, Section 4, says: "Any municipality proceeding hereunder shall not waive any legal rights it may have, and nothing in this act shall repeal or otherwise affect any existing law or laws on the subject matter hereof."
Unless the Supreme Court of Mississippi holds in this case that Chapter 285 of the Laws of Mississippi of 1936 was meant to repeal and eliminate from the Code Sections 2558 to 2569, inclusive, the City of Clarksdale could only have acted under Chapter 194 of the Laws of 1924, which is now forwarded in the Code of 1930 under the heading "Special Improvements," and being those sections just named, to-wit: Sections 2558 to 2569, inclusive, Code of Mississippi of 1930.
Is it possible that counsel in this case would ask the Supreme Court of the State of Mississippi to hold that Chapter 285 of the Laws of Mississippi of 1936 meant as enacted to provide that if at any future time a municipality without entry on its minutes caused work to be done that thereafter even if every owner of property in the district objected to the improvement that, nevertheless, an assessment could be made and in spite of the objections, the assessment would stand if the improvement had been done.
This would give a power to city authorities to intentionally disregard every section of the Code, and especially Section 2561 which gives to the majority of the property owners the right to refuse to have their street improved.
There was no attempt in the present case by the board or whoever put down the improvements to follow any statute or to act under any law, and it is not known by the appellee, nor the court here who put the improvements down for no order was entered on the minutes authorizing the improvements to be done; no order was entered declaring necessary the proposed improvements; no order describing the nature and extent of the work (2560); no allowance for objections (2561); in fact no order whatever. No validating law could aid such a case. Section 2565 of the Code as amended by Chapter 246 of the Laws of 1934 can never be held to mean that an assessment can be made for improvements illegally made by a municipality.
Counsel would certainly not contend that if a city makes improvements, not even of the kind authorized by the Code and without entry on the minutes, yet, nevertheless, property owners of a certain district may either under Chapter 285 of the Laws of 1936, or Section 5 of Chapter 246 of the Laws of 1934, be made to pay therefor by assessment.
There is no similarity of any kind in the case here before the court and in the Stingily case.
We submit that the case of Barron v. City of McComb is inapplicable to the present controversy.
It will not be disputed that a municipal corporation in Mississippi has no authority to make special improvements and charge the same to the abutting property owners unless such authority be given by the statute enacted by the Legislature of the state.
Macon v. Patty, 57 Miss. 378; Barnett v. Denison, 145 U.S. 135, 36 L.Ed. 652; Ottawa v. Cary, 108 U.S. 110, 27 L.Ed. 669; 25 R.C.L. 88, sec. 5; 44 C.J. 485, sec. 2811; Birmingham v. Miles, 178 Ala. 198, 59 So. 173; Wilt v. Bueter, 186 Ind. 98, 111 N.E. 926; City of Jackson v. Williams, 92 Miss. 301.
We have heretofore thought settled in Mississippi by the cogent and unanswerable reasoning in Macon v. Patty, 57 Miss. 385, that no special improvement district could be formed by delegated authority or even by the Legislature itself except upon the principle that the owners of the property in the special district gave their consent in some way thereto.
No statute has ever been passed in Mississippi organizing any sort of improvement district whether drainage, sewerage, sidewalk, street improvements, parks, or any other improvements, which did not within the statute submit the matter of the organization of the district to the property owners, and we submit that this right never attempted to be assumed by the Legislature in any written act ought to be by intendment and construction given to municipalities.
Valley Farms v. Westchester Co., 261 U.S. 155, 67 L.Ed. 585; Thomas v. Kansas City R.R. Co., 261 U.S. 481, 67 L.Ed. 758, 43 Sup. Ct. 440; Myles Salt Co. v. Iberia S.M. Dr. Dist., 239 U.S. 487, 60 L.Ed. 392; Gast Realty Co. Inv. Granite Co. v. Scheidner, 240 U.S. 55, 60 L.Ed. 523.
If the foundation of local assessment is first the consent and representation of the persons owning the property assessed, and second, benefits to accrue to the property, any other method is the taking of property without due process of law.
Macon v. Patty, 57 Miss. 385.
It may be said that the action of the Board of Mayor and Commissioners in its resolution of the 8th day of December, 1936, providing for a notice to the landowners, and that said notice was published, but we submit that this was a notice of assessment or costs for an improvement which the City of Clarksdale had no right to make and did not make in pursuance of any law, nor did it as a city make such improvement.
This case presents no question of equity; no question of estoppel; no landowner is estopped from complaining of taxation for local improvements by allowing improvements to be made when he, himself, has no notice of any kind by whom, why, how or for what the improvements are being made.
It is very doubtful whether the Legislature could pass an act validating the act of the municipality of the City of Clarksdale in doing these improvements. If such a validating act were passed, it would have to be an act of special and private legislation directed exactly to this particular thing. Surely no Legislature would pass an act validating all illegal acts of every city in the state in order to cover this illegal act done by the municipality of the City of Clarksdale, and furthermore it appears that the Legislature itself must have some point in validating acts of the subdivisions of the government.
Planters Bank of Clarksdale v. Yazoo Coldwater D.D., 156 Miss. 297, 126 So. 9.
We respectfully submit that this is wholly an illegal and unlawful attempt to tax property owners for an improvement made without authority and under no law, not in any improvement district, and wholly without notice or consent, but over the protest of each and every property holder attempted to be taxed, and that such an attempt cannot be aided by either Chapter 285 of the Laws of 1936, which chapter is wholly retrospective, nor by Section 5 of Chapter 246 of the Laws of 1934, which has reference only to the validation of "assessments" and not to the validation of illegal acts done under the authority of no law, and that, therefore, the illegal act cannot be validated now or ever.
Argued orally by J.M. Talbot, for appellant.
The mayor and commissioners of the city of Clarksdale had a part of one of the streets, Riverside avenue, paved and undertook to assess a portion of the costs thereof to the abutting property owners, the appellees. From the proceedings of the board making such assessments, the abutting property owners appealed to the circuit court by means of a special bill of exceptions. The circuit court held the proceedings void and entered a judgment accordingly. From that judgment the city prosecutes this appeal.
The paving was laid in the latter part of 1936 and about completed before the mayor and commissioners made any attempt to comply with sections 2560 to 2665, inclusive, Code 1930. After the work was done, in December, 1936, they did comply in every respect with the Code provisions in reference to such improvements, including notice and opportunity of a hearing in the making of assessments.
The questions for decision are whether there was any statute authorizing the action of the board taken after the completion of the work, and, if so, whether the enforcement of such statute violates the due process clause of the Federal and State Constitutions. Const. Miss. 1890, sec. 14; Const. U.S. Amend. 14. Under the authority of Barron v. City of McComb, 163 Miss. 337, 141 So. 765, 766, and City of Lexington v. Wilson's Estate, 170 Miss. 282, 151 So. 164, the first question must be answered in the affirmative and the second in the negative.
Going now to the questions in the order stated. The city contends that the subsequent action of the board was authorized by either one, or both, of two curative statutes, section 5 of chapter 246, Laws of 1934, which is section 2565, Code of 1930, amended, and chapter 285, Laws of 1936, which went into effect on March 26th of that year, and which antedated both the paving and the validating proceedings. The abutting property owners contend that the latter statute has no application because by its terms it is retroactive — not prospective. We pass that question undecided because we are of the opinion that section 5 of the act of 1934 is controlling; that section follows: "If any special assessment made herein or attempted to be made in accordance with or by virtue of the authority conferred in any other law heretofore in force, to defray the whole or any part of the expense of any local improvement, shall be, either in whole or in part, annulled, vacated or set aside by the judgment of any court, or if the governing authority of a municipality shall be satisfied that such assessment is so irregular or defective that the same cannot be enforced, or if the governing authority shall have omitted to make such assessment when it might have done so, the governing authority of the municipality is hereby authorized to take all steps to cause a new assessment for the whole or any part of any improvement, or against any property benefited by any improvement, following as near as may be the provisions of this chapter, and in case such second assessment shall be annulled, the governing body may make other assessments, until a valid assessment shall be made."
In both of the above cases the court had under consideration section 2565, Code of 1930. In both, the paving proceedings were absolutely void. The court held that they could be validated by the municipalities under section 2565, Code of 1930. We are of the opinion that section 5 of chapter 246, Laws 1934, is fully as broad as that statute.
The abutting property owners were not denied due process; they were not entitled to notice and opportunity of a hearing except as to the action of the city authorities in making the assessments. In the McComb Case the court said that "the Legislature has full power to validate an unauthorized act of a municipality which it had the power, under the Constitution, to authorize in advance," and that notice and an opportunity of a hearing on the proposition of doing the work was not required. In the Lexington Case the court held that due process was complied with by notice and an opportunity of hearing when the assessment was made. As above stated, these property owners had that notice and opportunity of hearing. In the final order the city authorities ratified and confirmed all previous action on the subject, and in addition recited that all the property involved was benefited and increased in value in a sum greater than the assessments.
The property owners rely largely on Town of Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451. In that case Justice George, who wrote the opinion, stated that when a taxing district was less than a legal subdivision of the state, the property owners therein would be denied due process unless given notice and an opportunity to protest against its organization. The opinion itself states, however, that this was not the opinion of the court but of Justice George alone. Under the McComb and Lexington Cases a taxing district may be authorized either by direct action of the Legislature or through an agency established by law with that power, and due process does not come into play except as to the assessment of the property of the district for taxation.
Reversed and judgment here.