Buckley v. City of Jackson , 125 Miss. 780 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

This appeal by Mrs. Agnes Buckley is from a final decree against her in favor of the appellee. The case was tried in the court below on an agreed record.

At the May, 1912, meeting of the mayor and board of aldermen of the city of Jackson the property of the appellant, consisting of a lot in said city fronting eighty feet on the west side of North State street, was assessed with its share of the cost of the special improvement made on said street as follows:

“Pavement and grading, two hundred, fifty-five dollars and sixty cents; water connections, forty and one-half feet at forty-five cents, eighteen dollars and twenty-three cents; sewer connections, sixteen feet at thirty-five cents, five dollars and sixty cents; total, two hundred, seventy-nine dollars and forty-three cents.”

The special improvement in question was made under chapter 260, Laws of 1912, as amended by chapter 256, Laws of 1914 (Hemingway’s Code, sections 5941 to 5965, inclusive).

The court beloiv, under the authority of the case of City of Jackson v. Hart, 117 Miss. 871, 78 So. 780, held that the assessments for the water and sewer connections, the assessment for the former being eighteen dollars and. twenty-three cents, and the latter five dollars and sixty cents, were illegal; but rendered a decree against the appellant for two hundred fifty-five dollars and sixty cents, the amount assessed for paving and grading with interest thereon as provided in section 23, chapter 260, Laws of 1912, as amended by chapter 256, Laws of 1914 (Hemingway’s Code, section 5963.)

The only error assigned is directed to that part of the decree allowing interest on the assessment for paving and grading.

It is shown by the agreed facts that from the time this assessment was confirmed by the municipal authorities until the decision of the case of City of Jackson v. Hart, supra, on June 10, 1918, the appellee insisted on the payment of the entire amount of the assessment, including the assessment for the water connection and the sewer connection, and up to the rendition of the final decree in the court below on October 7, 1920, insisted on the payment of the assessment for the sewer connection as well as that for the grading and paving assessment. It is contended on behalf of the appellant that she should not be made to pay interest on that part -of the assessment which was held to- be legal, being for the grading and paving, because the city of Jackson was insisting at the same time on the payment of the other assessments which were held to be illegal. Each item of improvement with its cost was distinctly set out. There was no integration of the items, on the contrary they were plainly segregated.

Section 23, chapter 260, Laws of 1912, as amended by chapter 256, Laws of 1914 (Hemingway’s Code, section 5963), under which this improvement was done, expressly provides, among other things:

“It shall be the duty of the property owner to pay the assessment within thirty days after the assessment is finally made. If the assessment be not paid in thirty days it shall bear interest at the rate of six per cent., and the mayor and board of aldermen may order suit to be brought in the chancery court to enforce the lien.”

Langstaff v. Town of Durant, 122 Miss. 471, 84 So. 459, is cited as supporting the contention of appellant. We do not so understand that case. The court did hold in that case that the property owner could not be charged with interest paid by the town on borrowed money procured to make the special improvement pending the raising of the funds for that purpose in the manner laid down by statute; but, in that connection, the court held that the property owner was liable for interest accruing after the assessment was due. *

The statute controls. It expressly provides for interest if the assessment is not paid within thirty days from the time it was finally made. If the. property owner chooses to fight the assessment in the courts, he takes the chance of failure with all its consequences, as do litigants in other character of causes. If he wins out entirely he saves the whole assessment, including the interest of course, and if he wins in part only so far does he. save the assessment and interest.

In the opinion of the court finder the facts of this case the only way appellant could have saved interest on the grading and paving item held to be legal', and at the same time contest the legality of the other items, would have been to tender the appellee, when due, the amount of that assessment. This was not done. 37 Cyc. 1159, 1160.

Affirmed.