Firm Lumber Co. v. City of Hattiesburg

delivered the opinion of the court.

• These cases were appealed from tlie circuit and chancery courts of Forrest county, one coming from the circuit court, and the others from the chancery court. They are all considered and disposed of by the decision of one question common to- each, rendering it useless to decide any other question involved. It is deemed unnecessary to go into a history of the court proceedings which present the question.

The question upon which they all turn is this: Whether under section 4, chapter 260, Laws of 1912 (Hemingway’s Code, section 5944) where a municipality prior to that act had paVed its streets so far as paved out of the proceeds of a general bond issue, could after that act change its policy, and pave other streets, and pay for the same by assessing the cost thereof to the abutting *816property owners. The essential facts are undisputed. Prior to the adoption of chapter 260, Laws of 1912, the city of-Hattiesburg had paved a considerable portion of its streets, paying for the same exclusively out of the proceeds of general bonds issued for that purpose. Up to that time that was- the exclusive method adopted by the city for paying for the pavement of its streets. In 1920 the city, proceeding under said chapter- 260, Laws of 1912, undertook to provide for the pavement of certain streets in said city, and assess the entire costs thereof to the abutting property owners, one-half to the owners on each side of the street. All of the appellants were owners of lots abutting streets, the pavement of which was provided for. They contested the right of the pity to make, said special improvement in the manner attempted. ■ They appeal here from adverse decisions by the courts in which the causes were pending.

A decision of the question involved requires a construction of chapter 260, Laws of 1912 (Hemingway’s Code, section 5941 to 5965, inclusive), especially of section 4 of said act (Hemingway’s Code, section 5944). The first section of the act authorizes municipalities to make special improvements of their streets, alleys, and avenues, or any part thereof, and charge the cost of such improvement to the abutting property owners. The second section of the act defines among other things what the legislature meant by “special improvement,” namely, “it shall only include the construction of the improvement on streets and not repair on same, but when applied to sidewalk improvement it shall include both the construction of the improvements and repair of same on sidewalks.” It is provided in section 3 that when the mayor and board of aldermen deem any special improvement necessary “on any street or any part of any street in the municipality they may use their discretion as to whether or not the general improvement fund shall be used to make the *817necessary improvement” (italics ours), or the costs shall he assessed to the' abutting property owners.

Section 4 (section 5944, Hemingway’s Code) is' in this language:

“The mayor and board oí aldermen shall be the sole judges as to the necessity for the special improvement, and they shall be the sole judges as to whether or not the general improvement fund shall be used for the special improvement, or whether or not the cost shall be assessed against the property owners, as hereinafter directed. But the method adopted by the mayor and board of aldermen for the payment of special improvements must be the .same on all streets of the municipality; and-in case any municipality has already commenced any particular kind of special improvement the municipality must continue to assess, the cost on all owners of property in the municipality in the same way that the assessment was made before the passage of this act, to the end that all persons ma/ be compelled to pay for the same character of special improvements on an equal basis, provided the provisions of this act shall not apply to property owned by the- state. ’ ’

Then follow the requirements and procedure to carry out the plan of taxing the cost of the special improvement to the abutting property owners, in the event that method is adopted. There appear to be three outstanding thoughts in the statute, namely: First, municipalities are given the authority to pave their streets and alleys by assessing the cost to the abutting property owners, as well as by paying for the same out of the general improvement fund; second, they are given the exclusive authority to decide which method they will adopt; and, third, it provides that where one óf those methods shall be adopted in the future it shall not be departed from, and where one had been adopted before thé passage of that act there shall be no departure from that method in *818the future. In other words, the legislature clearly had in mind uniformity _ and equality of taxation in making this character of special improvement. Section 4 of said act, although the language used in some respects is not" technically accurate, simply provides that when said act was adopted, if one of those methods had been in exclusive use by a municipality,- there could be no departure therefrom; .it had to be adhered to in the future. The language “to the end that all persons may be compelled to pay for the same character of special improvements on equal basis” (italics ours), is the key to the meaning of said limitation in section 4. How could there be anything like approaching uniformity and equality in taxation if the contention of the city be sound. For illustration: A municipality, before the adoption of chapter 260, Laws of 1912, had issued a large amount of special improvement bonds, and paved the greater part of its streets and alleys. Later, after the passage of said act, that method is abandoned, and the few streets and alleys that are left are paved by assessing the cost thereof to the abutting property owners. The result is the abutting property owners must be taxed to pay,their proportion of the special improvement bonds, as well as to pay the entire costs of the new improvements; while the abutting property owners on the streets and alleys paved out of the special improvement bonds would be chargeable with no part of the new improvement. As we view it this identical question was involved and decided in City of Jackson v. Doxey, 128 Miss. 618, 91 So. 348. The city of Jackson, prior to the adoption of chapter 260, Laws of 1912, had paid for the pavement of its streets and alleys by assessing two-thirds to the abutting property owners and one-third to the city. After the adoption of said act the city undertook to change the method by charging the entire cost tó the abutting property owners. This court held that under section 4 of said *819act the city of Jackson was required to adhere to the method adopted prior to the passage of said act, and therefore was without authority to change the method to one of assessing the abutting property owners with all of the costs.

It is cbnceded on behalf of the city of Hattiesburg that the Doxey case is sound, and should not be overruled, but it is contended that it is distinguishable from these cases, in that in the Doxey case there was an attempt to change from one method of assessing abutting property owners to another method of assessing the abutting property owners; that the present cases do not involve that character of change. That the change here is from paving the streets and alleys out of the general improvement fund, to paving them at the cost of the abutting property owners. That the limitation imposed by section 4 .of said act is only a limitation against a change of the method of assessing the costs to the abutting property owners, and has no reference to a change from paying the cost out of the general improvement fund to assessing it to the abutting property owners. We are unable to see the force of that contention. Such a construction would make section 4 meaningless. Instead of that section bringing about, in a measure at least, uniformity and equality in taxation)- it would have the contrary effect.

Reversed and judgment for appellants.

(dissenting).

The construction placed upon section 4, chapter 260, Laws of 1912, by the majority of this court, is erroneous, in that the act is given a broader interpretation than intended by the legislature.

The city of Hattiesburg in 1907 paved certain of its principal streets, and paid therefor out of the general *820improvement fund raised by a general bond issue. Tbis paving was an improvement for the general benefit of tbe public of the city. A decade later, and after the passage of chapter 260, Laws of 1912, it adopted the method of special improvements , of paving the streets, and assessing the cost to the abutting property owners, such improvements now amounting to three hundred thousand dollars or four hundred thousand dollars, which the city had assessed against the abutting property, and now seeks to collect. The majority opinion holds these assessments against the abutting property holders are void as being in violation of the said chapter 260, Laws of 1912.

The majority decision is that, since the city in 1907 proceeded to pave some of its main streets out of the general fund raised by bond issue to be met by general taxation, it cannot'ten years thereafter change this method of special improvements by assessing the cost for paving to the abutting property owners on outlying or other streets. I do not think the legislative act, justifies such a conclusion.

This act was construed in City of Jackson v. Doxey, 128 Miss. 618, 91 So. 348, and it was correctly held there that under the act the city of Jackson could not change its method of paving from one where the city paid one-third of the cost, and the property owners on either side of the street paid the other, two-thirds, to a plan where the property owners on each side of the street should pay the whole cost ofi the paving. This decision is a spund interpretation of the law. But it is clear to me there is a marked difference between the Doxey case and the one now before us.

A study of the statutory history of the subject will reveal the fact that for the last thirty years two distinct plans for paving streets have been in full force under the statutes of our state, and neither excludes the other, but they both may be resorted to at the same time by the municipality. One of the plans provides for paving the *821streets out of the proceeds of a general bond issue or out of the general improvement fund. The other plan provides for paving streets by a special assessment against the abutting property owners on the street paved, which is not general taxation, but is by special taxation for the special improvement and benefit to the abutting property. These two plans have remained side by side in the statutes for many years.

Now the main opinion herein holds that where a municipality once undertakes to pay for paving for the general public benefit out of the general improvement fund raised by taxation or by bond issue, it is forever barred from adopting the other plan of paving and assessing the cost thereof against the abutting property, which the improvement specially benefits. I.do not think such idea ever entered the minds of the legislature in passing the said act of 1912.

Now let us see what is the language of this act. It is provided in section 3 that when the mayor and board of aldermen deem any special improvement necessary “on any street or any part of any street in a municipality, they may use their discretion as to whether or not the general improvement fund shall be used to make the necessary improvement,” or the cost shall be assessed to the abutting property owners. Section 4 is in this language :

“The mayor and board of aldermen shall be the sole judges as to the necessity for the special improvement, and they shall be the sole judges as to whether or not the general improvement fund shall be used for the special improvement, or whether or not the cost shall be assessed against the property owners as hereinafter directed. But the method adopted by the mayor and board of aldermen for the payment of special improvements must be the same on all streets of the municipality; and in case any municipality has already commenced any particular kind of special improvement the municipality must continue *822to assess the cost oil all owners of property in the municipality in the same way that the assessment was made before the passage- of this act, to the end that all persons may -be compelled to pay for the same character of special improvements on an equal basis, provided the provisions of this act shall not apply to property owned by the state.” ' ■ \

It seems plain to me the language “and in case any municipality has already commenced any particular kind of special improvement the municipality must continue to assess the cost on all owners of property in the municipality in the same way that the assessment was made before the passage of this- act, to the end that all persons may be compelled to pay for the same character of special improvements on an equal basis, ’ ’ has reference solely to that method of special improvement where the cost is assessed to the abutting property owner. The language used is: “The municipality must continue to assess the costón all owners of property in a municipality in the same way that the assessment was made before the passage of this act,” to the end, as it goes on to say, that all persons'whose property is specially benefited by the improvement, the cost of which is to be assessed against the property, be compelled to pay for the same character of special improvements on the same or equal basis.

Undoubtedly the legislature only had in mind the method of special assessments against the abutting owners for the improvement by paying in front of their property for their special benefit. Improvements of a" street for the general public benefit to be paid for out of a general-fund, and not to be assessed against the abutting owner, was not intended to be covered by the legislative act.

The paving done by the city of Hattiesburg in .1907, and paid for out of the general improvement fund realized by the sale of bonds, would be paid for on an- equal basis of taxation as between all property owners in the’city, such *823general improvement rebounding’ to the common benefit of the general public, and therefore paid for by general taxation of the public. See Edwards House v. Jackson, 91 Miss. 470, 45 So. 14.

The majority opinion decides that when a municipality does any paving whatever and' pays for it by general taxation, even though the street paved is of such importance as to be a general public -benefit, it thereby forever forfeits its privilege to pave any other outlying streets by special assessment against the abutting property owners thereon. This conclusion is manifestly unsound, in view of the státutory history of the subject, and the phraseology of the act of 1912.

If the act of 1912 had intended that the method of paving by special assessments against the abutting owners could not be adopted where the city had previously made special improvement of a general nature out of the general fund, I cannot conceive why the act would have so specifically referred to the assessment of the cost against the abutting owners on the street which was improved by the pavement. The Doxey case, supra, supports the view inferentially that the act of 1912 meant to deal only with special improvements where the cost is assessed against the abutting owner.

Of course this court is not concerned with consequences, but the error, in my judgment, the majority has made herein is heightened, and becomes more grievous'when we bear in mind that it may be reasonably anticipated that not only the city of Hattiesburg, but other municipalities in the state, will be made to lose large sums of money expended for special paving improvements, notwithstanding the fact the abutting property owners have received the paving improvement as a special benefit to their property.