Sick v. City of Bay St. Louis , 113 Miss. 175 ( 1916 )

Ethridge, J.,

delivered the opinion of the court.

Complainants exhibited their bill in the chancery court of Hancock county, Miss., against the city of Bay St. Louis, alleging that the complainants are citizens and payers of the city of Bay St. Louis, and that the appellant Conrad Sick owns land situated on the beach front in said city, and that the appellant Octave Favre owns land in the city on a rear street of the city, and that the city of Bay St. Louis is undertaking to issue bonds in the sum of two hundred thousand dollars as empowered by chapter 287 of the Laws of 1916, without having submitted or offered to submit to the qualified voters of the city the question of whether said bonds shall be issued or not, the said amount proposed to be issued by them being in excess of seven per cent, of the assessed value of the property of the city of Bay St. Louis; that the assessed value of the property is one million six hundred thousand dollars; that the city is attempting to exercise this authority through five citizens who have been constituted or named by the mayor and board of aldermen as “bond commissioners” of the city with power to construct a sea wall by virtue of an amendment to the charter of the city of Bay St. Louis shown as exhibits to the bill of complaint; said city is a municipality operating under a special charter, under Laws 1886, chapter 297; that Exhibits B and C to the bill are not a part of the charter of the said city because they were never entered on the minutes of the board of mayor and aldermen, after being approved by the Governor, and are void because they attempt to place the power of assessment of special taxes in the bond commission and that they could not delegate to the bond commission this power. They allege, further, that the city cannot construct an improvement such as a sea wall, arbitrarily fixing an amount to be collected from the party upon whose property it is constructed; that a sea wall is not in its nature a public improvement for which the city can levy a general tax. They further contend that the complainants have never received any knowledge, or notice, of the amount that they are to be assessed for the said improvements, and that they do not know the character or cost of said improvement, and that if the amendment to the charter is valid and improvements made that it would place an unknown burden on the complainants without notice, and that they would he unable to object to the same or complain until the said improvement is completed; that under the scheme proposed that fifty per cent, of the bonds are to be paid by the entire town for the construction of a sea wall on the privately owned property on the beach front; and that the property situated in the rear of the city would he required to pay a large proportion of the said bonds without receiving any benefit from the improvement, and that this would take the complainant’s property without due compensation and without due process of law. The prayer of the bill is for a temporary injunction restraining the mayor and board of aldermen from issuing the said bonds and erecting the said sea wall, and for the declaring of the amendments to the charter void and a perpetual injunction against the city.

Chapter 287, Laws 1916, omitting the title and enacting and enforcing clauses, reads as follows:

"That the city of Bay St. Louis, Hancock county, Mississippi, be and is hereby authorized to issue bonds in the sum of two hundred thousand dollars, or so much thereof as may be necessary, at a rate of interest not exceeding six per cent, per annum, and levy a special tax to pay said bonds and interest upon all the property within its limits, not exceeding ten (10) mills on the dollar, for the purpose of building a sea wall to protect the banks from caving and overflow from storms and tide water.”

This act is silent as to hów bonds shall be issued, and is silent as to how the sea wall shall be constructed, not containing any machinery for either issuing the bonds or erecting the sea wall. Chapter 147 of the Laws of 1914 applies to all municipalities, and provides that where bonds are issued in excess of seven per cent, of the assessed valuation of the property of the municipality the question must be submitted to and ratified by the qualified electors voting at said election before such issuance shall be made. Chapter 287 of the Laws of 1916 is a mere enabling act in the nature of a charter amendment conferring additional power on the municipality; and, not having the machinery for the issuance of said bonds, must be construed in connection with the general law upon the subject, except as modified by the later act (and the later act does not modify this requirement of a bond issue, but does modify the ten per cent, limitation imposed by that act as a total amount which may be issued), the law of 1914 controls this bond issue. In other words, the city is not limited to a bond issue of ten per cent, of its assessed valuation, but may issue such bonds to the amount of two hundred thousand dollars. But this does not change the requirement that the question must be submitted to a vote of the qualified electors for their approval.

It being admitted in the agreed statement of facts that no such election was ordered or contemplated in .the issuance of the bonds in question, and that no election was intended to be held on the question, it follows that the board was acting without authority, and that the injunction should have been granted. The ease will therefore be reversed, with direction to grant the injunction against the issuance of the bonds until the same shall have been submitted to the qualified electors and approved bv a majority of those voting in said election voting therefor.

Inasmuch as the case must be reversed and further proceedings had before the bonds can be issued, and as it may be that litigation and delay will be saved by so doing, we will dispose of other questions in the record. There is no merit in the contention that the bond commission is unlawful and their acts void. They are at least de facto officers whose acts within lawful authority are valid under section 3473, Code 1906, and only the state can complain as to the questions of terms and tenure, etc.

There is no merit in the contention that the board of mayor and aldermen must readopt a charter amendment and enter it on their minutes after its publication and approval by the Governor and attorney-general. The first adoption by the board of mayor and aldermen with its publication and approval by the electors gave it life and its recordation on the ordinance book of the city after its approval by the Governor was all that was necessary.

There is no merit in the contention that the power of assessment could not be conferred on the bond commissioners by charter amendment. There is no constitutional assessor for municipalities.

' There is no merit in the contention that a sea wall is not in its nature a public improvement for which a city can lay a general ad valorem tax on the whole property of the city. The city cannot arbitrarily assess special benefits against property owners for improvements, but such assessments must be reasonable, having reference to the benefit conferred; and before this assessment of benefits is made, notice must be given the property owner, with an estimate of the cost of the improvement to be made, with a right to submit evidence and make objections thereto.

Unless the city is primarily liable for the whole am mint, with right to reimburse itself by the special assessment, the -notice, hearing, etc., should be made before the bond issue is made. Board of Mayor, etc., of Waveland v. Moreau, 109 Miss. 407, 69 So. 214. The city has the power to condemn property for public use under its charter, and may exercise the power to erect a sea wall and acquire right of way, etc., and there is therefore no merit in the objection as to this matter, nor will the sea wall if erected become private property.

It follows from what we have said that the charter amendment made Exhibit B to the bill presents a valid and workable scheme for the issuance of said bonds, if authorized by a vote of the qualified electors of the city. But Exhibit C (being another amendment to the charter) is not free from objection, and should be redrafted or abandoned in the issuing of bonds. It arbitrarly imposes one-half the expense of building the sea wall on the, property owners abutting the improvement, regardless of the cost of construction and the actual benefit to be conferred. Under it the city cannot be made liable for more than one-half of the cost, even though the judiciary should decide that one-half of the cost of the improvement was an unreasonable burden on the abutting owners and confiscatory of his property; in which contigency there would be no method by which to raise money to pay all the bonds.

Reversed and remanded.