Williams v. Mayor of Vicksburg , 116 Miss. 79 ( 1917 )

Cook, P. J.,

delivered the opinion of the court.

A bill of complaint was filed in the chancery court of Warren county by the city of Vicksburg to test the validity of an alleged amendment to the charter of the city, and to recover from P. P. Williams, the owner of certain lots located in said city, the sum of five hundred and fourty-four dollars and thirteen cents, and, further, that the city be declared to have a first lien on the said lots of defendant, and that lien be declared by decree of the court.

The city of Vicksburg was working under a special charter obtained before the chapter on “Municipalities,” Code of 1906, was adopted by the legislature.

The bill sets out the original charter provision whereby the city was authorized to pave the streets, upon the petition of a certain proportion of the lot owners, and to distribute the cost of the paving between the city and the lot-owners.

The bill then sets out the alleged' amendment to the charter, which amendment authorizes the city to pave the streets upon its own motion when the lot-owners will not petition the city for the improvement in the way provided by the original charter.

The defendant, P. P. Williams, filed pleas whereby he alleged that the amendment to the city charter was never legally adopted. The pleas aver that the alleged amendment to the city charter was not set out in haec verba upon the minutes of the mayor and board of aider-men of the city of Vicksburg; that the only reference whatever to the determination of said board and said notice is in the minutes of complainant of the 20th of March, 1917, and is as follows, to wit:

“The following resolution offered by Alderman Hosslev was unanimously adopted, to wit:

“‘Whereas, some of the owners of the property lying and abutting on that part of South street in the city of Vicksburg, beginning at and running west from Levee street, for one block or square^ desire to have that part of said street paved in accordance with the provisions of article 25 of section 28 of the city charter, but a majority of the owners of a greater number of lots or parts of lots or the owners of a greater number of lineal feet fronting on said block, although requested, will not petition for the same to be so paved; and

‘“Whereas, the mayor and aldermen of the city of Vicksburg deem it necessary, and do now so adjudge that it is necessary, for said block or square of said South street, beginning at and running from Levee street, back west for one block or square, to be paved or turnpiked or graveled, according to said charter provision:

“ ‘Now, therefore, be it resolved by the mayor and aldermen of the city of Vicksburg, by virtue of the power and authority vested in them by the amendment of said article 25, approved by the Governor of the state of Mississippi on July 7, 1914, said block of said South street running from Levee street back west be, and the same is hereby, ordered to be so paved, tumpiked, or graveled as aforesaid, the same to be done under and in accordance with the provisions of said article 25 and its amendments, including the sáid amendment of July 7, 1914, aforesaid.’

“On. motion, of Alderman Hossley. the mayor was requested to advertise for bids for paving one block on South street running west from Levee street, also the paving of one block on Adams street between Jackson" and Grove streets, the bids to be opened at the regular meeting to be held on April 2, 1917.”

To the pleas of defendant the city interposed a demurrer, and the court 'sustained same. Whereupon defendant filed a demurrer to the bill of complaint upon the following grounds, to wit,;

“(1) That there is no equity on the face of said bill.

“(2) That said amendment under which defendant is sought to be charged with the cost of said pavement is null and void.

“ (3) That complainant had no power or right under said amendment to pave said street.

‘ ‘ (4) That complainant had no power or right to require it to pay one-third of the cost of said pavement, as it did not petition for said pavement.

“(5) That the complainant had no power or right to pave said street, or to require defendant to pay one-third of the cost thereof, as no petition of the abutting property owners was presented to pave said street.

“(6) That complainant has no lien under article 23, section 28, on defendant’s said property, for the payment of one-third of the paving price charged to it.”

This demurrer was overruled. The defendant appeals to this court.

Passing over the form of pleading adopted in this case, we will consider the case upon its merits. It will be observed that the court held that the pleas of defendant were insufficient in law and offered no defense to the case made hy the hill of complaint. As we interpret the pleas, they allege facts which, if true, were a complete bar to the action filed hy the city.

Section 3444 of the Code, referring to amendments to municipal charters, expressly provides that amendments to municipal charters when approved hy the Governor shall-he recorded upon the records of the mayor and board of aldermen, “and when so recorded, shall have the force and effect of law,” and we think it may he said, when it appears that the amendment is not recorded, it will not have “the force and effect of law.”

Reversed and remanded.