City of Grenada v. Grenada County , 115 Miss. 831 ( 1917 )

Holden, J.,

delivered the opinion of the court.

The city of Grenada adopted chapter 260, Laws of 1912, and proceeded thereunder to pave a certain one of its streets upon which the county courthouse property of Grenada county abutted and fronted. The proper notice by publication was given to the property owners on the street proposed to be paved, and all other requirements of the act were regularly carried out and the improvement made. There was no personal notice served upon the county officials, nor was the board of supervisors requested or invited to join with the city in letting the contract for'the paving of the street in front of and adjoining the said courthouse property, except by the publication of notice aforesaid. ‘ After the said paving improvements were made by the city in front of the county courthouse property, the city presented a claim to the board of supervisors of the county for the cost of one-third of the paving, which amounted to two hundred and fifty-three dollars. Upon the refusal of the board of supervisors to pay this claim, the city of Grenada appealed to the circuit court of said county, and there obtained a judgment, which may be said to be a personal judgment, against the county for said amount, and from this judgment the county appeals here..

The appellant,' Grenada county, makes two contentions by its assignments of error which deserve notice and discussion:

First, Appellant contends that chapter 260, Acts of 1912, imposes no liability upon counties or the property owned and used by the county in the administration of its governmental functions; and that as a county has no liability except as authorized, expressly or by necessary implication, by statute, and the act here in question does not expressly or by necessary implication impose a liability upon the county, but on the contrary, that section 4 of said act provides that “the provisions of this act shall not apply to property owned by the state,” and that as a county is a mere subdivision of the state, the exemption from the liability sought to be imposed in this case is clearly intended in the act.

Second. It is contended by appellant that even though the act in question does not exclude county property from its provisions, but includes it by necessary implication, still no recovery can be had in this case ag’ainst the county because section 25 of said act provides that “no personal judgment shall be rendered against either a resident or nonresident owner, but the extent of the judgment shall only be to condemn the property improved to be sold for the purpose of paying the tax assessed against it.”

As to the first contention of appellant, it is well settled that no suit can be maintained against a county to recover for liability unless such liability is authorized by some statute, expressly or by necessary implication. Brabham v. Board of Supervisors, 54 Miss. 363, 28 Am. Rep. 352; Redditt v. Wall, 55 So. 45, 34 L. R. A. (N. S.) 152; Sutton v. Board, 41 Miss. 236. We are of the opinion that such liability as claimed here is not embraced either expressly or by necessary implication in the act in question. The provisions of the act specifically exempting property owned by the state do not necessarily imply that the property of a county, which is a subdivision of a state, is not exempt, but is subject to liability for improvements made under the act the same as property of persons, as contended by appellee. We construe the language of the act as exempting the county property from the imposition of the burden, and we think that the intent of the act, expressed by the language therein, not only fails to include county property within its terms, but on the contrary intended to exempt it, the same as state property is exempt by the act and by the common law. Counties are political subdivisions of the state and as such are immune from liability to the same extent that the state is exempt. There can be no liability against either the state or a county unless it be expressly or impliedly created by statute. 7 R. C. L. 950. In this case the statute failed to create liability against the county, but expressly provided against such liability by declaring that, “the provisions of this act shall not apply to property owned by the state,” which inferentially includes as exempt also the property of a county of the state. Therefore, under chapter 260, acts of 1912, the city of Grenada had no legal right to impose liability upon the county or the courthouse property of the County, for paving the street in front of it, as the act in question gives no such authority in law.

The second contention of appellant is based entirely upon the interpretation of 'section 25, of said chapter 260, Acts of 1912, which is set out above. It will be observed that section 23 of the act provides that:

“If the assessment be not paid in thirty days it shall bear interest at the rate of ten per cent., and the mayor and board of aldermen may order - suit to be brought in the chancery court to enforce the lien.”

Taking the sections 23 and 25 and reading them together, we construe them to mean that where the paving improvement has been made by the city, in a regular and lawful manner, and the property owner in front of whose property the improvement has been made refuses to pay for such improvement, suit may be filed in the chancery court to enforce the lien against the property, and in that manner collect the amount expended by the city for the improvement. But under section 25 of the act' it is provided that no personal judgment shall be rendered against the property owner, but that the exent of the judgment shall only be to condemn and sell the property improved for the purpose of paying the tax assessed against it.

It is a well-settled principle of law that the public property of a county used in the orderly administration of governmental functions in and for the public interest cannot be levied upon and sold under execution, nor can a lien for a debt against it be enforced by foreclosure and sale, as such procedure would be against public policy, and would hinder and impair the administration of the governmental functions of the state and county. The appellee, city of Grenada, having no. right, under section 23 of the act, to enforce its lien in the chancery court against the county for the debt claimed, and as section 25 of said act provides that no personal judgment shall be rendered against the property owner, the county here, we are bound to conclude that, first, there is no liability imposed by the statute upon the county in this case for the improvements made in front of the county courthouse property, and, second, that if the statute authorized such liability on the part of the county it could not be enforced in the chancery court by foreclosing the lien and selling the property of the county, under section 23 of the act, and as, under section 25, no personal judgment can be rendered against the county owning the property, the lower court erred in this case in giving a personal judgment against the county of Grenada in favor of the appellee city of Grenada.

It appears that under the act public property belonging to the state or county cannot be subjected to liability for improvements made on the streets in front of such property, but that the act gives such right and remedy only against the property of persons and private corporations. The legislature in our judgment, failed to make provision in the act which would allow recovery against the county for such improvements, and whether or not the omission to do so was unintentional is a matter we are not here concerned with.

The judgment of the lower court is reversed, and judgment entered here.

Reversed and judgment here.