Stevens v. City of Hattiesburg ( 1923 )

Holden, J.,

delivered the opinion of the court.

The appellee, city of Hattiesburg, filed its bill in the chancery court seeking to enforce a lien upon a certain lot of land belonging to Mrs. Stevens, appellant, situated on Bay street, to satisfy a special assessment which the city had undertaken to make against the lot for repairs made by the city to and upon an existing pavement of said street in front of and abutting the lot. From an order overruling a demurrer .to the bill and decreeing the lot be condemned and sold to satisfy.the assessment, Mrs. Stevens appeals to this court.

The question involved in the case is whether or not the municipality had legal authority to repair existing paved streets and assess the cost thereof against the abutting property owner. The question presented for pur decision is not whether the municipality may construct pavements of its streets and assess the abutting owner with the cost thereof, nor is it a question of repairing or constructing sidewalks; but we are called upon to determine precisely whether or not the city had the lawful right to repair the pavement of the street and' assess the cost against the abutting owner. In the case before us it is contended by the city that the repairs involved was a construction — or reconstruction — of tlie pavement on the street and that the city had authority to make the improvement and assess the cost against the abutting owner under chapter 260, Laws of 1912.

The appellant urges that the improvements ma.de in this case were repairs and not construction as a matter of fact, and that the improvement was treated as one of repairs by the ordinances and notices enacted and promulgated by the city. However, we think it unnecessary to decide the question of fact as to whether the improvement was one of construction or one of repairs, because if the assessment was attempted to be made for construction of the pavement against the abutting owner under chapter 260, Laws of 1912, then the city must .fail in its suit because of the recent decision of that question by this court in Firm Lumber Co. v. City of Hattiesburg, 98 So. 145, decided October 29th, which held the city of Hat-tiesburg was powerless to enforce assessments against abutting property owners for paying streets.

Therefore, if the improvement in this case was a eon-strtiction of the pavement and not repairs, then the ap-pellánt, under the above case, is free of liability in the premises. But, assuming the improvement was one of repairs to the pavement, then the appellant property owner would not be liable for the costs unless the municipality had legal authority to make such repair improvement and assess the cost thereof against the abutting owner.

We have been unable to find any statute which expressly or impliedly authorizes the municipality to repair existing paved streets and assess the abutting owner with the cost thereof. It seems the legisláture, for some unknown reason, has failed to grant such authority.

It will be conceded by all that legislative authority is necessary before á municipality may repair a street and impose a special charge against the abutting property owner. There must be an express statute delegating the power and prescribing the manner and method of the procedure for making the improvement and taxing the abutting property holder therewith. There is no such statute enacted by the legislature, .and conseouently the municipality of Hattiesburg had no power to repair paved streets'and charge the cost against the abutting owner.

Counsel for the city of Hattiesburg do not attempt to point out any particular statute plainly giving the city the authority to make repairs of a paved street and assess the cost against the abutting owner, but they refer to general statutes which seem to bear indirectly upon the subject and possibly indicate that such authority may have been contemplated by the legislature. However, we do not find the legislature expressed such authority to municipalities to make street pavement repairs at the expense of the abutting property owners.

Counsel for the city cite chapter 224, Laws of 1918, as conferring authority upon the city to make repairs of street pavement and assess the expenses against the abutting owners. But we do not understand this act to confer such power upon the city. The act seems to contemplate that some other statute was passed, or would be passed, granting municipal authority to make repairs of paved streets by assessment against abutting owners, and that this legislatiqn (chapter 224, Laws of 1918), would aid such plan of special improvement by empowering the municipality to borrow money and give notes or certificates of indebtedness to pay for the repairing of paved streets, to be ultimately paid for by abutting owners.

But counsel for the city urge that even though no authority is given by a special statute to make such pavement repairs, yet the city has authority to make the repairs and charge them to the abutting owner, under section 5835, Hemingway’s Code (section 3338, Code of 1906), which provides that the city shall have power “to exercise full jurisdiction in the matter of streets, sidewalks, sewers, and- parks; to open and lay out and construct the same; to repair, maintain, pave, sprinkle, adorn, and light the same.”

It is contended this general statute confers authority npon a municipality to make repairs of paved streets and compel the abutting owner to pay the costs thereof. We do not think the position is sound. The statute does not authorize the making of special improvements and assessing the cost against the abutting owner, which assessment becomes a lien upon the property of the citizen. The statute refers to general improvements, and gives ■full and general jurisdiction in-the matter of streets, hut confers no authority. to make special street improvements at the expense of the abutting owner, because the power is not delegated nor is the method and procedure for such .purpose prescribed, which is necessary in order to- impose and 'enforce the charge against private property for special improvement of the abutting street.

In view of these conclusions the decree of the lower court is reversed and judgment entered here for the appellant. ' ‘

Reversed and judgment here for appellant.

Cook, J., took no part in this decision.